The recent case of Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, cannot be overemphasized for its importance to the disability retirement process. It is, in my view, a landmark case which will greatly advance potential disability retirement applicants who base their disabilities upon psychiatric conditions. In representing my clients, I have repeatedly argued that the Office of Personnel Management’s insistence upon “objective medical evidence”, especially when it involves clients who suffer from psychiatric medical conditions (e.g., Major Depression, Anxiety, panic attacks, Bi-Polar Disorder, etc.) is not only unfair, but irrational. My past arguments were met with varying degrees of success, but the essential argument that I made over the years went something like this: Psychiatric disabilities by their inherent nature are “subjective”, because there is no diagnostic test which can objectively determine symptoms of psychiatric disabilities. Indeed, while there are multiple psychological tests which can be administered, the results are still based upon the subjective responses of the patient. Furthermore, a doctor’s clinical examination, long-term evaluation by a treating doctor, and the consistent assessment by one’s treating doctor, provide for the best and most ‘objective’ basis for a valid medical opinion. Further (my argument would often go), even physical disabilities (like a bulging disc) which can be ascertained by an MRI, cannot provide a conclusive basis to determine the extent of one’s pain or inability to perform certain tasks, for pain is by definition a “subjective” condition; there are, indeed, some who have bulging discs but have very little pain, and others who have a minimal bulging disc which completely debilitates the individual. These were rational arguments made, and while fairly persuasive when combined with case-law citations, the force of such arguments often depended upon the receptiveness of OPM’s representative or, at the Merit Systems Protection Board level, the receptiveness of the Administrative Judge.
With the opinion expressed by the Court in Vanieken-Ryals v. OPM, we no longer need to rely upon the arbitrary receptiveness of an individual, for we have a firm legal basis to counter the irrational basis that OPM routinely gives in their denials based upon an objective/subjective distinction.
The Court in Vanieken-Ryals made several important declarations in their opinion:
1. 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”, especially when the application is based upon psychiatric medical conditions. This, because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability.
2. 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.
3. 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.”
Ultimately, for purposes of this article, which is (hopefully) read by many non-lawyers, the essence of the Vanieken-Ryals case is that it exponentially strengthens a disability retirement application based solely upon psychiatric medical disabilities. The case itself contains many other elements which provide for strong ammunition, when used wisely and with knowledge, for the disability retirement practitioner of law. It makes a strong and unequivocal statement that OPM’s and MSPB’s adherence to a rule which systematically demands for “objective” medical evidence and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.” This is indeed strong language which can be used as a sword to prevail in a disability retirement case.
Persistence in the pursuit of a client’s right and entitlement to disability retirement benefits is never a lost cause, and those who have hesitated from filing for disability retirement because they suffer from purely psychiatric medical disabilities, or from disabilities which are often harder to “objectively” justify (e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.) have a greater chance because of the bold legal opinion as expressed by the Court in Vanieken-Ryals.
This is a landmark case of incalculable importance and impact, which cannot be overemphasized. I have already cited the case on numerous occasions at the MSPB level, and the fact that it is a Court of Appeals decision makes it binding upon all MSPB judges. It gives greater hope for those who suffer from Psychiatric Disabilities alone, that their cases will not somehow be looked upon with less chance of approval than a person with a physical medical condition.
Other case updates: While Vanieken-Ryals was not a case that I represented, there are some case-updates from my own files which may be of some interest to my readers. All information provided is already in the public record of the written Opinion of the Judges, and there is no information revealed here that violates my attorney-client confidentiality. I wish that I could claim that I win all of my cases; I cannot. However, it is my firm belief that persistence in the pursuit of a client’s disability retirement application is never a lost cause, and here are three cases which reinforce my philosophy:
1. Tucker v. OPM (DA-844E-07-0314-I-1) The Office of Personnel Management kept denying Ms. Tucker’s disability retirement application. This case was finally won at the Hearing level. However, the Office of Personnel Management filed a Petition for Review. I responded with — among other arguments — the fact that the Office of Personnel Management failed to make any legal arguments showing that the Hearing Judge committed any legal errors. The Full Board rejected OPM’s Petition and affirmed the decision in my favor. No further appeals have been filed. I am happy for my client that after so many years, she will now get her disability retirement. Persistence in rebutting OPM’s attempt to reverse a Hearing Judge’s decision is never a lost cause.
2. Hartsock-Shaw v. OPM (PH-844E-06-0658-I-1) This one is the converse of the previous one, in that the Hearing Judge initially affirmed OPM’s denial of my client’s disability retirement application. I filed a Petition for Review, because I believed the Judge was wrong in not applying the Bruner Presumption in this case. The Full Board vacated the Initial Decision and Remanded the case back to the Hearing Judge, requiring further testimony on the issue of whether the Bruner Presumption should have been applied. We were able to factually prove that the circumstantial evidence necessitated the finding that my client was removed for her medical inability to perform her job, even though there was no final letter of removal issued by the Postal Service that we could find. The Judge sided with us, reversed her prior decision, and granted my client her disability retirement benefits. Persistence paid, and persistence in the pursuit of a disability retirement claim is never a lost cause.
3. Heiter v. OPM (AT-0831-07-0435-I-1) This is an interesting case. It has to do with a client who lost his disability retirement benefits because he tried to go to work for Federal Express. He was being punished for trying. One would think that a disability retirement annuitant would be commended and praised for trying — but, no, because he applied for, got the job with, and then quit, a job with Federal Express, he was deemed to have been ‘less than honest’ for having retired on disability from a Postal Job, and therefore OPM cut off his disability retirement benefits. We went to Hearing on the matter; the doctor testified unequivocally that he couldn’t do the job — neither the Federal Express one nor his prior Postal job — but he couldn’t fault his patient for having tried. OPM made a big deal about the fact that my client periodically went bowling. The Judge ruled in OPM’s favor. I filed a Petition for Full Review. The Board reversed the Initial Decision, and reinstated my client’s disability retirement annuity.
Here again, persistence pays, and persistence in pursuit of a disability claim is never a lost cause.
I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. In pursuing one‘s entitlement to disability retirement benefits, one must always take the long-term perspective, and pursue that right with aggressiveness and persistence. It is an investment for one‘s future, and it is important to pursue your future investment aggressively, and to sustain your investment for a long time into the future.
For more information, contact me in one of these ways:
Sincerely,
Robert R. McGill, Esquire
Filed under: Application, Appeals, and Other Medical Documentation Submitted To the OPM, Clarifications of Laws or Rules, Federal Disability Judge-Made Decisions Quoted, Important Cases, Legal Updates and/or the Current Process Waiting Time, Mental/Nervous Condition, OPM Disability Application - SF 3112C Physician's Statement for CSRS and FERS, The Job of a Federal Disability Attorney, U.S. Office of Personnel Management (OPM), U.S. Postal Service (USPS) Disability Retirement | Tagged: accommodating mental psychiatric conditions, anxiety & panic attack in the Postal Service, anxiety and depression, Arthritis, arthritis among federal employees, back pain and radiating pain along legs, Bi-polar disorder in OPM disability, Bipolar Disorder in the Postal Service, bulging discs opm disability retirement, cancer and OPM disability retirement, criterias for disability retirement opm, diabetes treatment and federal workers, disabling depression, disabling mental nervous conditions, established diagnostic criteria on mental conditions, Federal Medical Evidence of Record Program (FEDMER), federal workers disability criteria, FERS CSRS mental and/or nervous condition, help getting fers mental disability, long lwop for nervous or mental conditions, Major Depression cases in the USPS, medical evidence, mental condition in OPM disability, mental health therapist, mental or nervous disabling conditions, objective and subjective medical evidence, objective medical evidence for federal disability cases, Obsessive-Compulsive Disorders, opm disability retirement process, OPM mental condition, OPM subjective methodology, Osteoarthritis, owcp and unable to return to work, panic attacks and federal disability retirement, psychiatric conditions, psychiatric disability in OPM Disability Retirement, psychiatric medical conditions, Return to Work Certification form filled by psychiatrist, return to work physical examination by occupational doctor, schizophrenia and federal disability retirement, statutes and regulations governing disability retirement law, statutory criteria for eligibility for disability, the Vanieken-Ryals case, treatment of mental illnesses, us government employee's evaluation psychiatric conditions, USPS Return to Work Certification, Vanieken-Ryals v. Office of Personnel Management, when "objective medical evidence" is not necessary, when the OPM creates its own laws | 1 Comment »
Federal Disability Retirement Law: Fool’s Gold
Pyrite is often the element mistaken for gold, with its bright yellow appearance and shiny, reflective compound. Why a given mineral is determined of greater value than another of similar appearance is a complicated affair, encapsulating economic principles of supply and demand, the fungibility and replacement feature of one over the other, and the plain fact that the elemental differentiation itself constitutes “real” versus “fake”.
It is, in history books, novels and plays, a metaphor for greed, corruption, ill-fated endeavors, and motives which propel obsessions of determined failure and futility. For that which we seek with a blind eye, we end up becoming blinded to. During the course of a career, one can often lose sight of why we were working towards a goal, the values which we once cherished, and the reasons for our very essence and being.
For the Federal employee and the U.S. Postal worker who suddenly finds himself or herself with a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s positional duties, the metaphor of the fool’s gold is an instructive one. For, to pursue one’s career at any cost, is ultimately a fool’s errand; and when the price to pay is one’s own health, such a continuing act of futility can result in greater calamity than necessitated by one’s progressively deteriorating circumstances.
Priorities in life always have to be readjusted, in order to accommodate the unexpected vicissitudes of life’s challenges.
For Federal employees and U.S. Postal Workers, the work is important for most, and is a “high priority” in order to accomplish the mission of the agency or the Postal Service; but when one’s health contraindicates the priority of one’s Federal or Postal career, a change of venue should be considered, and filing for Federal Disability Retirement benefits, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, is an important first step in making sure that the proverbial pot of gold one once sought, has not been replaced by the mirage of fool’s gold, lest the leprechaun who mended your shoes is caught during the process, in which case the three wishes granted may override the need to reshuffle one’s priorities.
Sincerely,
Robert R. McGill, Esquire
Filed under: Fables, Stories and Analogies about CSRS and FERS Medical Retirement Benefits | Tagged: advantages in filing for usps disability retirement benefits is the opportunity to work elsewhere, agency managers that misuse their authority are causing depression among federal government employees, appealing commentary on usps drac committee recommendations, asleep at work federal government, average time for opm to decide medical retirement is about 6 to 8 months in most cases, being removed from a federal job for poor health, border patrol disabilities on and off duty, caught being asleep federal government may underline medical conditions, cbp disability retirement attorney, civil service ptsd lawyer, considerations before resigning federal job for medical problems, defense intelligence agency medical retirement attorney, department of labor functional capacity evaluation private attorney for federal employee, department of labor medical retirement lawyer, dhs disability retirement attorney, disability retirement letter mental health issues, faa air traffic controller medical retirement lawyer, fed employee disciplined for taking lwop due to hostile work environment, federal disability retirement application guidelines, federal disability retirement for nervous breakdown, federal employee medical termination tsp, federal employee rights when requesting resignation for medical reasons, federal employee sleep apnea, federal job related stress leave, federal manager abuse of authority causing stress and anxiety, federal opm lawyer for medical retirement applications, fers disability heart failure sample assistance from top attorney in the field, fers disability lawyer and carpal tunnel syndrome, fers office of personnel management for disability retirement, filing a complaint with owcp department or applying for opm medical retirement benefits, getting fers medical retirement with sleep apnea, help with sf 3112 disability retirement forms, how do I resign from a federal job for health conditions, how to get disability retirement fers, how to get disability retirement from opm, how to handle your transition toward medical retirement with the employing agency or usps, how to sign up for medical retirement from post office, inability to perform duties constitute inefficiency for removal from federal government, insufficient usps drac committee accommodation, job offers owcp and accommodation issues, lawyers helping with light duty issues post office, light duty request form from apwu or law firm, limited duty law government employment lawyer, long term stress leave federal, long term usps workers comp benefits, medical documentation is required for fers disability, medical inability to perform removal in the us postal service, medical inability to perform the duties in federal government job, medical retirement due to injury at job with cbp, mental health and claim hostile work environment with federal government for early out pension benefits, opm agency certification of inability to place employee, opm disability documentation due to depression, opm federal disability retirement, opm medical retirement attorney for carpal tunnel syndrome, opm process time disabilities termination with annuity payments, osteoarthritis opm medical retirement benefits, owcp accepted conditions in contrast to opm medical condition that affect job performing, owcp and unable to return to work, owcp sending employees for a fitness for duty evaluation, owcp unfair accommodation, Post Office disability retirement, post office disability retirement benefits lawyer, post office disability retirement lawyer, postal disability lawyer, postal disability retirement process, postal employee unable to return to work stress, postal services shared services division of disabilities retirement, proven success on federal disability retirement claims, pstd anxiety usps lawyer, psychiatrist signing 'return to work' form for the usps, removal proposal for excessive absences due to medical conditions, resign post office for medical reasons and walk out empty handed?, resigning your position from the federal government for illness, return to work physical exam federal employment, should I resign from the postal service for a medical condition?, sick leave denied and being awol in the postal service due to a medical condition, the attorney’s role in guiding a usps medical retirement application, us postal service personnel management, usda retirement information for employees with disabilities, usps performance improvement plan for medically related inefficient job performance, usps return to work after being out on stress, va employee disability retirement lawyer, what to expect during the fers or csrs disability retirement claim, workplace bullying in the federal government causing disabilities on employees | Leave a comment »