Disability Retirement for Federal Workers: Natural Pairs

Shoes come in pairs; gloves, eye glasses, slippers and shoelaces. Obviously, products are manufactured to fit the need, and the loss of one of the pairs often requires the purchase of replacement for both, precisely because it is difficult to locate a store which will sell you only one of the replacement pairings.

Other couplings may not be as easily identifiable, but nevertheless tend to be related; for example, “stress” if often paired with “anxiety“, and a hostile work environment is tied to both stress and anxiety.  Though we may not refer to such related concepts in the manner similar to a pair of gloves (one doesn’t hear the term, “the pair of stress and anxiety”), the combination coincides precisely because of the inherent nature of similitude.

Perhaps it is more appropriate to speak in terms of a tripartite concept: of a hostile work environment, increasing the level of stress, and resulting in the medical condition of exacerbated anxiety. Or, perhaps a tetralogy of a compound concept: a hostile work environment; stress; anxiety; a medical condition. Or are the latter two so interrelated and therefore count as one, as “anxiety” is a “medical condition”, and so we should revert back to the tripartite category? For, it is certainly the case that when a medical condition enters the workforce, there is too often an increase in workplace hostility, resulting in greater quantification of stress, and the consequence of exacerbation of anxieties, which further compounds the complications of medical conditions, which…

So, perhaps the proper and more appropriate conceptual identification involves a somewhat vicious circle of cause-to-effect, effect-to-cause? Whatever the technically precise categorization of conceptual identification, for the Federal or Postal employee who suffers from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s positional duties, one thing is clear: all such concepts are interrelated, connected, intersecting in conceptual constructs, and compounded in complexities of human behavior.

Filing for Federal Disability Retirement benefits, whether under FERS or CSRS, submitted through the U.S. Office of Personnel Management for consideration, is an option which should be considered by the Federal and Postal Worker, if one wants to entertain a viable alternative to remaining in that vicious cycle of medical condition, stress, hostile work environment, anxiety…

The pairing of conceptual constructs is a reality in the world which is not mere linguistic play; the medical condition is real; the world of work is often harsh; stress is a silent but true killer; and anxiety is not just a passing phase in one’s life. No, it is not the pairings which are unnatural; rather, it is artificial nature of how we cover up the reality of such pairings, which makes for sadness in this world.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Lives of Trepidation

Most of us live lives of subtle trepidation.  Whether borne of childhood experiences of insecurity or fears, psychologists and mental health professionals can perhaps shed some light upon a theory or proposed paradigm of explanatory adequacy.

In adulthood, it turns to reticence and self-limitations, where avenues are deliberately avoided and potentialities remain consciously unfulfilled.  It is all well and good for others to declare such pithy catchphrases, such as, “There is nothing to fear but fear itself,” and other such banners and choruses intended to lift up one’s spirits; but the reality of the harsh world around us more often than not confirms, magnifies and reinforces the very fears and anxieties which limited us in the first place.

Thus does one begin life with inborn fears, and stumbles about and experiences confirmations by the harsh reality which we encounter on a daily basis.

Medical conditions, whether physical or psychiatric, tend to magnify and delimit those subtle trepidations.  For the Federal and Postal Worker who finds him/herself with a medical condition which impacts one’s ability and capacity to perform the essential elements of one’s job, Federal Disability Retirement benefits, filed through the U.S. Office of Personnel Management, whether under FERS or CSRS, may be the best option and choice to take.

It is perhaps one avenue where a benefit does not confirm one’s subtle trepidations of life, but rather, counters it by allowing for a modicum of security, while pursuing another vocation, and concurrently allowing for that rehabilitative period of quietude in order to recover from one’s medical conditions.

It is well that such a benefit exists for the Federal and Postal employee; for, as a subset of the greater society which has no such availability to the benefit provided by Federal Disability Retirement, the “rest of us” must trudge along with those subtle trepidations and make our way in this harsh reality of our own making.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The World in Which We Live

Various social commentators have observed the contradiction that, while we live in an increasingly global economy, individuals feel a greater sense of isolation; thus, the conundrum that the world is no longer an expansive, unreachable universe, but in private lives, the uniqueness of the individual is lost and forgotten.

Whether because of the stresses of isolation, or because of the fast-paced, technologically-driven world in which we live, or some organic-based reasons, one may never know; nevertheless, the exponential explosion of psychiatric illnesses erupting in our society cannot be denied.

There was a time, perhaps a decade or so ago, when a stigma was attached to medical conditions and disabilities which were deemed “stress-related“, and which encompassed depression, anxiety, uncontrollable panic attacks, agoraphobia, etc.  One cannot mark a clear demarcation of when the approach and societal attitude, let alone the medical community’s acceptance, of the wide array of psychiatric conditions, changed.

For Federal Disability Retirement purposes, however, the level of approvals versus denials between cases involving psychiatric conditions, as opposed to purely physical medical conditions, has become indistinguishable.  The U.S. Office of Personnel Management does not review or analyze cases based upon psychiatric conditions — so long as one can tell, purely from an “outsider’s” perspective — any differently from “physical” medical conditions.

This is obviously a “good” thing, because psychiatric medical conditions are just as valid, serious, “real”, and devastating, as the most serious of “physical” medical conditions.  The world in which we live has certainly changed; OPM has evolved with the new world, and we are all the better off for it.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Employees Disability Retirement: Major Depression

Federal and Postal workers who are inquiring about filing for Federal Disability Retirement benefits under FERS or CSRS often lack any context as to his or her own particular situation, in relation to the greater Federal and Postal workforce.  Let me elaborate:  a Federal or Postal employee who suffers from chronic and intractable Major Depression, despite being placed on various psychotropic medications, and having undergone psychotherapeutic intervention, and (in more serious cases) hospitalization for intensive treatment — often believe that his or her “situation” is unique, isolated, and rare.  It is not.  

When an individual suffers from Major Depression, it is common to feel isolated, as if the particular psychiatric disorder is unlike other medical conditions (e.g., physical medical conditions which can be ascertained by an MRI or other diagnostic tools).  This is part of the very medical condition itself — of feeling isolated and trapped, and unable to escape from one’s own plight.  

Indeed, Federal and Postal employees who suffer from Major Depression often ask me the “how many” question — how many people do you represent who suffer from Major Depression, as if numbers correlate to security.  While I am very protective of client confidentiality and information related to my clients, it can safely be said that a “great many” Federal and Postal employees suffer from Major Depression, that it is not uncommon, that your co-worker sitting beside you may suffer from it, and that such sufferers work hard to hide it.  

Further, the success in filing for, and obtaining, Federal Disability Retirement benefits under FERS or CSRS is no less than any other medical condition.  Thus, for those who suffer from Major Depression and are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS:  you are definitely not alone.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Anxiety

Anxiety is a special form of a psychiatric disability — one which must be approached with thoughtful care in preparing a Federal Disability Retirement application under FERS or CSRS.  While often accompanied by Major Depression, and sometimes panic attacks, Generalized Anxiety Disorder will often have corollary discussions in medical treatment and office notes of references to employment issues involving workplace harassment, discrimination, hostile work environments, etc.  Such references to workplace issues can lead to the Office of Personnel Management denying a Federal Disability Retirement application based upon “Situational Disability” — a medical disability which is self-contained within a particular workplace situation, but which may not necessarily extend to a different office environment with the same job requirements.  

To make moot a claim of situational disability, one would have to show that the medical condition — Anxiety — pervades all aspects of one’s life, and is not just circumscribed by the particular harassing environment of a specific workplace, or a Supervisor, or a hostile workplace, etc.  The more one focuses upon the workplace as the instigating causal force behind one’s anxiety, the more it will compound the problem of being deemed a “situational disability” in a Federal Disability Retirement application under FERS or CSRS.  Ultimately, it is irrelevant what “causes” the anxiety; the important thing is that a person suffers from a medical disability, and the primary focus should be upon treatment of that condition.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Origin of Psychiatric Disabilities

When preparing the Applicant’s Statement of Disability (Standard Form 3112A) in preparing to file for Federal Disability Retirement benefits from the Office of Personnel Management, it is important to keep the essence of the statement “on topic”.  By this, is meant that the primary focus of the applicant’s statement should be repetitively twofold:  First, what the medical conditions and their symptomatologies & manifestation of symptoms are, and Second, how those medical conditions and symptoms impact one’s ability/inability to perform one or more of the essential elements of one’s job.  

While history and origin of a medical condition may be somewhat relevant (unlike in an OWCP case, where causality and date of injury and where/how it happened are important elements in establishing that a medical condition was somehow job related), normally in Federal Disability Retirement cases the origin of a medical condition should not be emphasized, if only because OPM does not care about it.  If the origin of one’s psychiatric medical conditions (e.g., Major Depression, anxiety, panic attacks, etc.) find their source from conflicts within a job, such a history may be a red flag which can lead the Office of Personnel Management to conclude that the medical condition constitutes a “situational disability“.  In a final determination as to whether a medical condition can be characterized as “situational”, while it must be looked at in its full context, nevertheless, it is the origin of a psychiatric medical conditions which is the first point of reference in making such a determination.  

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: Situational Disability, Revisited

Remember that there is nothing wrong with issues and events in the workplace being the originating factor which instigates or otherwise propels a medical condition — often (though not necessarily always) a psychiatric condition.  The characterization of a “situational disability” (one of the basis upon which the Office of Personnel Management may attempt to deny a Federal Disability Retirement application) only becomes a problem if and when a psychiatric condition prevents a person from performing one or more of the essential elements of his or her job with a particular office, agency or department. 

If the Federal or Postal employee is unable to perform in a particular job in an office or agency, but is able to perform the same basic set of essential elements with another agency, or in the private sector, then it becomes a case of “situational disability”.  However, if the medical condition pervades other aspects of the Federal or Postal employee’s life — personal life; relationships with family & friends; impacts his or her ability to be employable in other sectors; then the medical condition is no longer one of “situational disability” — despite its origins having been formulated in the workplace.  Thus, the issue is not “where the condition came from”, but rather, “where is it now”?  The Office of Personnel Management will often attempt to blur the boundaries between the two questions, and try and characterize the medical disability as not only originating with an agency, but being limited to that particular agency.  And, indeed, the Federal or Postal employee who files a Federal Disability Retirement application under FERS or CSRS does not help matters when he or she wants to persist in focusing upon the events in the workplace which may have contributed to the medical condition.  Beware not to fall into OPM’s trap.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Is there a higher standard of proof for Psychiatric Disabilities?

I am attempting to address the issue of Psychiatric medical disabilities in the context of filing for Federal Disability Retirement benefits under FERS & CSRS, by addressing the issue from various perspectives and angles, in an effort to inform the reader in different ways.  Major Depression, Generalized Anxiety Disorder, panic attacks, Bipolar Disorder — each possess unique traits, characteristics, and symptomatologies and manifestations exhibited in ways specific to the psychiatric condition. 

What is often the case is that, while the Psychiatrist is the medical doctor who is the “expert” on the Psychiatric condition, it is often the psychologist (the “Ph.D”), the Therapist, the Licensed Clinical Social Worker, etc. who has the “personalized” knowledge of the patient, who can provide the descriptive emotional impact, and the specific adjectives which can properly be formulated to reveal and “prove” the impact upon one’s inability to perform the essential elements of one’s job. 

Often, the Psychiatrist is merely the “medication manager” — the prescriber of the psychotropic medications.  Thus, in proving a Federal Disability Retirement case by a preponderance of the evidence, it is often necessary to have both the Therapist, as well as the Psychiatrist, in a joint effort to meet the standard of proof.  Is there a higher standard of proof in a Psychiatric medical condition?  To some extent, the answer is yes — but this is only natural, inasmuch as it requires “more” to have people fully understand the nature, extent, and impact of what it means to have a psychiatric medical condition.  For, at its very essence, who among us can truly understand what it means to be overwhelmed by a psychiatric medical condition?  Only words — descriptive adjectives and emotive-concepts, can draw us closer to having at least some rudimentary understanding.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB. 

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, 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,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.  As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

Important Cases Which Impact Disability Retirement Applications

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:

• View my website at www.FederalDisabilityLawyer.com
• Email me at federal.lawyer@yahoo.com
• Call me at 1-800-990-7932

 

Sincerely,

Robert R. McGill, Esquire