FERS & CSRS Medical Retirement for Federal Employees: Illness

It is the pause button rendered by the universe, often without warning, without invitation and unwelcomed by all.  Is it the gods laughing in the heavenly seclusion, as wanton children playing with the mortality of souls unrequited, as matches in the hands of mischievous hearts undisciplined by law, life or empathy?

Then comes the triteness of wisdom, yet true but too late: “Oh, what a blessing health is”; “Is there a lesson to be learned?”; “Why me?”.  Is this the crisis of life that is merely an obstacle to overcome, or the long road towards a progressive decline where mortality is not just tested, but revealed as the weak link in the proverbial chain of man-to-gods-to the theology of our own creation?

Illness comes like that unwitting thief in the dead of night, but unlike the burglar who tries to remain silent but for creaking floors and unoiled passageways, it comes without concern for being revealed.  Does the universe test – or remain impervious like Aristotle’s Unmoved Mover, where perfection attracts all towards its essence and destroys everything that attempts to escape?  Who determines the criteria of such a test?  What constitutes a “passing grade” as opposed to a failure in its mere attempt?  Is the evaluation contained within the strength of one’s own character, and what results in a declaration of “success” as opposed to the failure of everyday lives?

If it is truly a test of character, then Federal employees and U.S. Postal workers certainly get enough of it to collectively get a passing grade.  Yes, fortunately, there is the option of filing a Federal Disability Retirement application, but for almost all Federal employees and U.S. Postal workers, the reality is that such a step is the last option chosen.

It is not so much that the benefit reaped from a Federal Disability Retirement is so miserly as to not make it worthwhile; no, to a great extent, the annuity of 60% of the average of one’s highest three consecutive years of pay, then 40% every year thereafter until recalculation at age 62 is generous enough to survive upon, especially when the alternative is to remain and kill oneself, resign and walk away with nothing, or file for Federal Disability Retirement benefits; and, in conjunction with the ability to go out into the private sector and be able to make (on top of the Federal Disability Retirement annuity) up to 80% of what one’s former position currently pays – it can lead to an acceptable level of financial security.

Ultimately, however, it is a truism that Federal employees and U.S. Postal workers wait until the final possible moment before making the decision to file a Federal Disability Retirement, often allowing the illness to debilitate beyond the point of reasonable acceptance.  That, in and of itself, is a character test, and one that makes the illness itself of secondary concern, when one’s health should be given the highest priority, lest we allow the gods of wanton carelessness to have the last laugh.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Psychiatric Conditions and Accommodations

In preparing, formulating and filing a successful Federal Disability Retirement application with the Office of Personnel Management, under FERS or CSRS, the issue of accommodations will come up.  The Agency from which one retires under a Medical Disability Retirement will have to ultimately fill out Standard Form 3112D —  Agency Certification of Reassignment and Accommodation Efforts — which will constitute and satisfy the Agency’s attempts at “accommodating” a Federal or Postal worker in his or her current position, taking into account his or her medical conditions. 

Unfortunately, most medical conditions are deemed to be “non-accommodatable” (if such a term exists in the English Language), and this is logically as well as legally true because with or without the accommodations, one must be able to perform all of the essential elements of one’s positional description.  Minor adjustments to the workplace, or even to the work assignments, may be able to allow for the Federal or Postal worker to continue to work in a Federal or Postal position for some time, but that Federal or Postal worker must be able to perform all of the essential elements of the job, as described in the position description.   An Agency may temporarily suspend certain elements of the core functions of the job, but such temporary suspension does not constitute an accommodation under the law. 

For psychiatric medical conditions, it is rare that an Agency will be able to accommodate such a medical condition, precisely because of the inherent nature of the medical condition — that which impacts upon one’s focus, attention, concentration, and ability to organize and perform executive functions in a coherent and systematic manner.  As such, the issue of accommodation, while one which may have to be addressed in preparing, formulating and filing a Federal Disability Retirement application, is normally an irrelevant, non-issue.

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

OPM Disability Retirement: Sometimes, It is the Wrong Question

If the question is asked, “Is it difficult to get Federal Disability Retirement benefits based upon a Stress Claim?” — within the context of the poorly-worded question, you may get a wrong answer.  This is because it is the wrong question to begin with.

The concept and term “stress claim” is more appropriately formulated in the context of an OWCP claim.  It implies that one is claiming for compensation based upon a situation — a hostile work environment, a harassing supervisor, etc. — because the origin and inception of the medical condition generically characterized as “stress” implies that it is the workplace which is the originating responsibility for the very medical condition claimed.

Such a question would thus imply a multitude of irrelevant considerations for purposes of filing for Federal Disability Retirement benefits under FERS or CSRS, such as the causality of the claim, whether the cause is merely situational (is it the supervisor causing the stress?  If so, if a Federal or Postal worker moved to another office or agency, could he or she work in the same job?), or contained within the context of the workplace.

The problem with using the term “stress” in a question is that, whether as a noun or a verb, it implies too much while revealing too little.  If expanded upon (e.g., while stress may be the origin, is the medical condition Major Depression, anxiety, panic attacks, etc.), then the entire question takes on a new form.  Sometimes, the problem begins with the question asked which is poorly worded; and to a poorly worded question, a wrong answer might be given.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Psychiatric Issues

For Federal and Postal workers who are filing, or contemplating filing, for Federal Disability Retirement benefits under FERS or CSRS, the distinction between “physical” medical conditions and “psychiatric” medical conditions are not always so clear and distinct.  While cases can be bifurcated for many clients (where the medical basis upon which a Federal Disability Retirement is based is wholly physical, or entirely psychiatric), often, cases have a “mixed” character to them, where depression, anxiety, panic attacks, etc., arise or become “secondary” to a chronic medical condition.  

The complex interaction between physical pain, chronic medical conditions which impact one’s job, physical abilities, etc., can at their inception be “secondary” in the sense that they have arisen and manifested the symptomatologies “after” or “second to” the original medical conditions.  However, after some time (and this is being stated from a legal perspective reviewing many such instances in filing for Federal Disability Retirement benefits under FERS or CSRS), such secondary Major Depression, anxiety, panic attacks, and even other psychiatric medical conditions, can become the central or prominent medical condition which forms the basis of a OPM Disability Retirement application.  Thus, that which was once “secondary” does not always remain so; it can become the primary basis.

Sincerely,

Robert R. McGill, Attorney

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

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

OPM Disability Retirement: It Is a Medical Issue

If a Federal or Postal Employee is still on the rolls of the Agency, or if you have not been separated from service for more than 31 days, then the disability retirement application must be routed through your agency before being forwarded to the Office of Personnel Management for processing and review.  If you have been separated from Federal Service — meaning, you have actually been taken off of the rolls of your agency (this does include being on sick leave, or on annual leave, or on leave without pay) — for 31 days or more (but not for more than 1 year, in which case you have lost your right and ability to file for Federal Disability Retirement benefits, because you have allowed the 1-year statute of limitations to pass by), then you must file your case directly with the Office of Personnel Management in Boyers, PA.  Whether routed through your agency or directly to the Office of Personnel Management, remember that a Federal Disability Retirement application is ultimately a medical issue — not a supervisor’s issue, not an agency issue; it is not determined by your agency; your eligibility is not determined by your supervisor.  It is, essentially, and at its very core, an issue between you, your doctor, and your inability to perform the essential elements of your Federal or Postal job.

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