Federal Employee Disability Retirement: Twilight’s Landing

Sleep is often the category of escape; restorative sleep, a palliative prescription for a medical condition.  Upon closing one’s eyelids, the images which pervade from the day’s stimuli slowly recede as the dark chasm of one’s own consciousness begins to fade, and sleep begins to overtake, leading us into that shadow of twilight’s landing.

It is when chronic pain, discomfort, and the gnawing neurons which fail to relax but continue to send signals of dismay and distress, that the world of wakefulness and the dawn of sleep fail to switch off; or the continuing anxiety, depression or panic attacks control and jolt one into the awareness of darkness.  Medical conditions have an impact not only upon the daytime soul, but in the sleeplessness of non-sleep as well.

For Federal and Postal workers who are formulating a Federal Disability Retirement application and preparing one’s Statement of Disability on SF 3112A, one aspect of the descriptive narrative which is often overlooked, both by the doctor as well as the Federal or Postal applicant, is the role that profound fatigue plays upon performing the essential elements of one’s job.  While often implicitly stated or otherwise inferentially contained, explicit extrapolation is important in order to convey all of the elements of one’s medical condition and their impact upon the Federal or Postal employee’s inability to perform one or more of the essential elements of one’s positional duties.

Perhaps one was reprimanded or suspended for “sleeping on the job”.  Was it mere laziness, or was the underlying medical condition the intermediate cause of an act or event otherwise seen as an insubordinate statement of defiance?  Reasons and rationales provided make all the difference in this very human universe of language games and counter-games.  For, in order to effectively submit a Federal Disability Retirement application through the U.S. Office of Personnel Management, whether the Federal employee or the U.S. Postal Worker is under FERS, CSRS or CSRS Offset, the important thing is to make sure and sufficiently describe and delineate the primary and secondary causes of one’s underlying medical conditions. This includes the inability to have restorative sleep, the profound and intractable fatigue one experiences, impacting upon one’s daily cognitive functions, etc.

Otherwise, the medical conditions are not adequately conveyed, and when one goes back to sleep in attempting to reach that twilight’s landing, the difficulties of the world will be magnified by another potential problem — a denial from the U.S. Office of Personnel Management, of one’s Federal Disability Retirement application.

Sincerely, Robert R. McGill, Esquire

Federal & Postal Disability Retirement: Restorative Measures

Sleep obviously has an evolutionary purpose.  Anxiety, stress, negative thoughts and perspectives; aggressive behavior, combativeness (otherwise known to spouses as “being grumpy”); inability to maintain one’s focus, concentration, attention to detail; all of these, and much more, can often be ameliorated by a good night’s sleep.

Stress is the overarching component which becomes exacerbated by lack of sleep; it feeds upon all other aspects of the human body, by impacting physical endurance and stamina, by increasing one’s cognitive dysfunctions and capacity to process the quantitative and qualitative amassing of information; and it is thus the vicious cycle of lack-of-sleep leading to greater-stress resulting in increased inability to attain a state-of-restorative sleep. Throughout, stress can be the invisible thread which ties the binds of cyclical ruination and self-destruction.

For Federal and Postal employees who find that a medical condition has impacted one’s ability to maintain a continuity of restorative sleep, consideration in filing for Federal Disability Retirement benefits, filed through one’s agency if one is still employed or not separated for more than thirty one (31) days, or filed directly to the U.S. Office of Personnel Management if separation has already occurred but one still falls within the 1-year timeframe of the Statute of Limitations, must always be an option.  Federal Disability Retirement allows for one to reach that plateau of self-restorative venues, by having the time and proper perspective to seek out effective medical treatment, not otherwise distracted by the countless demands of one’s Federal or Postal job.

Stress is the silent robber who stealthily destroys one’s health by a thousand cuts; lack of restorative sleep is the subtle, pernicious and progressively deteriorating condition which turns slowly into a crumbling foundation; and failure to act upon correcting the steady onslaught of self-decomposition will only lead one to a state of paralysis, where the shifting plate tectonics will one day reach a crisis point of collision, in the convergence of stress, anxiety, physical collapse, and self-ruination; all because we couldn’t get a good night’s sleep.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Restorative Sleep & a New Day

For whatever evolutionary reasons, the necessity of sleep is apparent to anyone who lacks it.  On just a basic level of understanding, one assumes that the extent and level of daily activities results in the corresponding necessity of one’s sleep pattern; but one sees certain individuals do next to nothing, who seem to need a vast amount of sleep, and conversely, those who expend a tremendous level of energy who seem to thrive on minimal periods of somnolence.

The necessity of sleeping is a given; when interrupted patterns occur, and identifiable sleep disorders intervene, including insomnia and sleep apnea, then we begin to recognize the differentiation between mere ‘sleep’ and the concept of ‘restorative sleep’.  The former is simply the state that one finds one in; it is the latter which is the more meaningful state.

Whether because of chronic pain which, throughout the period of attempted sleep, interrupts the pattern of relief sought through sleep; or severe psychiatric conditions which require lengthy periods of quietude; mere sleeping does not necessarily result in the state sought — of restorative sleep, in order to wake up to a “new day”.  Without that level of restorative sleep, the human mind and body is unable to perform at the peak level which must be attained, in order to thrive in the technologically challenging work environment of modern day.

For the Federal and Postal Worker who must face such a challenge daily, where one’s medical condition begins to impact the ability to perform all of the essential elements of one’s job, consideration must be given to filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.  Whether under FERS or CSRS, Federal Disability Retirement allows for the Federal or Postal Worker to enter into a period of interlude in order to attain that sought-after restorative sleep.

The respite from the turmoil of work and responsibilities is often the recipe needed, and until the Federal or Postal Worker acknowledges the need, that proverbial “new day” may never arrive, and one may find that sleep is not a friend of the night, but an adversary to be battled within the darkness of one’s mind.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Chronic Fatigue Syndrome & Related Conditions

The Weekend edition of the Wall Street Journal published an informative article entitled, “The Puzzle of Chronic Fatigue“.  For Federal and Postal employees who are considering filing for Federal Disability Retirement benefits under FERS or CSRS, who suffer from the condition identified generally as Chronic Fatigue Syndrome, the article provides an informative analysis of the medical condition, as well as a greater understanding of the underlying causes — and a possible link to a retrovirus identified as XMRV.  

It is an article worth reading, if only to have a better understanding.  Perhaps it can be pointed out to the treating doctor.  Perhaps some of the article’s substantive content can be used as persuasive argumentation against some of the common counter-arguments given by the Office of Personnel Management in filing a Federal Disability Retirement application under FERS or CSRS.  

In any event, being informed about updates on medical issues is always an important step in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, if only for the purpose of expanding one’s ability to access greater understanding of a particular kind of medical condition.  For, ultimately, the attorney who represents an individual who is considering filing for Federal Disability Retirement benefits under FERS or CSRS must be able to accurately describe the impact of the medical condition upon one’s employment; and, to do so, one must always be up-to-date on the most recent medical discoveries.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Psychiatric Disabilities

Perhaps there will always be a suspicion that a distinction is made by a governmental entity/bureaucracy, between physical medical conditions and those which are deemed “psychological“.  For Federal and Postal workers who are considering filing for Federal Disability Retirement benefits under FERS or CSRS, there are ample legal tools to point out to the Office of Personnel Management that such a distinction is not only improper, but moreover, contrary to the “law of the land“.  

The Federal Circuit Court has pointed out clearly and unequivocally that the law does not allow for OPM to make a distinction between that which is “objective” medical evidence and that which is “subjective“.  Further, beyond the conceptual distinction applying to the medical evidence, this means that the categories encompassing the two should not be distinguishable when applying the laws governing Federal Disability Retirement.  Thus, rational conclusions based upon clinical examinations, a long history with the patient, consistent symptoms as related to by the patient to the doctor — all are valid, and “as valid”, as the “objective” medical evidence purportedly revealed by an MRI or other diagnostic tools.  

Thus, the credence and credibility of Major Depression, Anxiety, Panic Disorder, Obsessive-Compulsive Disorder, Bipolar Disorder, Generalized Anxiety Disorder, and a host of other psychiatric disabilities, hold an equal level of legal validity as the long list of physical disabilities.  Don’t ever let OPM go down an argumentation route where no law exists to support it; they may often try, but it is up to the Federal or Postal Worker who is filing for Federal Disability Retirement benefits under FERS or CSRS to meet them at every juncture of such sophistry.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s disability retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. As long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with ‘generally accepted professional standards'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire

Summary Legal Update for FERS & CSRS Disability Retirement

On my website, Federal Disability Retirement Lawyer, I give a more extensive explanation of a recent and important case impacting federal disability retirement applications, but I think that it is important for everyone filing, or contemplating filing, for disability retirement under FERS or CSRS, to be aware of the recent United States Court of Appeals case for the Federal Circuit, Vanieken-Ryals v. OPM, #2006-3260, decided on November 26, 2007, in which it was found that OPM’s adherence to the rule that they will refuse to “consider such medical evidence…for being ‘purely subjective’ is a critical legal error…and clearly prejudicial.”

Often, in cases involving cognitive impairment, psychiatric disabilities, disabilities involving diffuse and chronic pain, and those conditions such as Fibromyalgia, Chronic Fatigue, etc. the Federal Circuit Court in Vanieken-Ryals has essentially held that OPM’s adherence to “objective evidence” is “unsupported in the law, was arbitrary, capricious and contrary to law.”

The Judge therein stated that OPM must consider the medical evidence that is submitted, and cannot attack a medical condition unless there is a doubt as to the “credentials or veracity [of the doctor],” and this is especially true where the doctor has “utilized established diagnostic criteria and [is] consistent with ‘generally accepted professional standards’ ” of medical practice.

This is an important case for Federal disability retirement applicants to use when filing for psychiatric medical disabilities, and for those “hard to define” cases (again, e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.), because OPM will often declare as a basis for denial that the applicant lacked “objective medical evidence” or that there was no “objective diagnostic tests” showing the medical condition. This is, to use a very well-know legal term, now considered “baloney”. As long as the doctor has applied established diagnostic criteria and generally accepted professional standards, unless OPM can attack the credentials of the doctor, they must consider the medical evidence.

Sincerely,

Robert R. McGill, Esquire