CSRS & FERS Medical Disability Retirement: The Muddle of a Myopic Focus

Focusing upon a singular aspect of an issue, and failing to comprehend its limited import and relevance within the greater context, is a pitfall which many fall into.  It is tantamount to having a myopic condition — where one’s nearsightedness prevents one from having the capacity to focus upon anything beyond those within one’s easy reach.

In a Federal Disability Retirement application, filed through one’s agency (if one is still a Federal or Postal employee, or if separated, such separation has not occurred more than 31 days) and ultimately forwarded to the U.S. Office of Personnel Management (or, if separated from one’s agency for more than 31 days, directly to the Office of Personnel Management in Boyers, PA), whether under FERS or CSRS, it is important to approach the preparation, formulation and filing of one’s Federal Disability Retirement application with a larger view than to discuss issues of limited relevance.

For example, when a Federal or Postal employee is embroiled in an adversarial and contentious process with one’s own agency, or a supervisor, it is often reflected in the Federal Disability Retirement application via a tirade of specific descriptions concerning harassment, workplace hostility, etc.  While such descriptions may be relevant for purposes of an  EEOC claim, it has very little significance for one’s Federal Disability Retirement claim.

Keep the essence of a case at the forefront:  Medical issues; impact upon one’s ability/inability to perform the essential elements of one’s job.

All myopic conditions need correction; properly prescribed glasses to keep one’s focus may be a necessary expense.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Foundational Paradigm

Ultimately, Federal Disability Retirement is based upon the persuasive delineation of three primary elements:  A medical condition; impact of the medical condition upon one or more of the essential elements of one’s job; and an inability on the part of the agency to accommodate the resulting impact of the medical condition upon one’s inability to perform all of the essential elements of one’s job.

How one proceeds to “prove” the case; what “kind” of evidence one needs to provide; the qualitative nature of the proof to be submitted; the quantity and volume of the type of evidentiary submissions to be included; these are determined by necessity based upon the nature of the medical condition itself.

Thus, some medical conditions may require merely a few pages; others, extensive supporting documentation, including treatment notes, diagnostic test results, explanatory clinical encounters and narratives which show a history of treatment-resistant modalities of medical applications as well as fulfillment of such extensive attempts which validate that the patient/applicant is not a “malingerer”, but rather exhibits symptoms which defy traditional approaches both for diagnoses and treatment.

It is always upon the first of the three elements identified which forms the foundational basis of a Federal Disability Retirement application; the sequential nexus of the two following almost creates itself, like the phoenix arising from the ashes, only in this case, from the debilitating medical condition from which one suffers.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Additional Supporting Evidence

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management under FERS, there is nothing to preclude one from attaching multiple supporting documentation in proving one’s eligibility for Federal Medical Retirement benefits.

In doing so, however, it is appropriate to keep in mind that the conceptual paradigm of “supporting” should be just that — it must be to assist, help, or otherwise enhance such evidence which constitutes the central component of one’s Federal or Postal Disability Retirement application.

Thus, “supporting” should not be the primary basis of one’s evidence, but rather, that which further enlightens and advances the primary documentary evidence.  For example, statements from co-workers, photographs, and similar supporting evidence can be provided to OPM, but only if –and as — it enhances the primary documentation, which should be comprised of medical documentation from treating doctors, specialists, referral consultative medical providers, etc.  Even ancillary supporting documentation — SSDI approvals, VA assignation of disability ratings, OWCP acceptance, OWCP second-opinion doctor’s reports, etc — should be viewed as “supporting”.

It is important, as an aside, to recognize that the OPM Case Worker does not, and will not, expend hours upon hours reviewing every piece of document one submits, and therefore it is important to streamline and provide an efficient, effective paper presentation.

Think about it this way as a guiding principle:  If you approach a file which is an inch thick, or one which is 8 inches thick, which do you tackle on a Friday afternoon?

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Remembering What “Supportive” Means

Over time, one’s memory and historical perspective becomes clouded and obscured.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is obviously a long and complex history of changes, amendments and refinements to the aggregate compendium of that which constitutes the totality of “the law” governing Federal Disability Retirement benefits.

Thus, since the initial inception of the enactment of statutory authority granting the U.S. Office of Personnel Management authority to approve Federal Disability Retirement benefits under CSRS (and later under FERS), there has been an evolution of statutory amendments, regulatory clarifications, case-law expansion, contraction and clarifications — the composite of which constitutes “the law” governing Federal Disability Retirement applications whether under FERS or CSRS.

Part of the evolutionary process includes what is termed “supportive” documentation or evidence, such as an Agency’s determination that the Federal or Postal employee cannot be accommodated; the Flight Surgeon’s decertification of an Air Traffic Controller’s medical clearance; a Law Enforcement agency’s conclusions that a Federal Law Enforcement Officer is unable to meet the physical requirements of his or her position; and many other agency determinations which “support” a Federal Disability Retirement application.  But “supportive” does not mean “primary”, and the Federal or Postal worker must always remember that such ancillary evidence must be in addition to the primary evidence submitted in a Federal Disability Retirement application.

Don’t mistake the support evidence as replacing the essential evidentiary component of a Federal Disability Retirement application, whether under FERS or CSRS. The primary evidence must always come first — both by definition, as well as by statutory requirement.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Government Employees: The Weight of Evidence

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the reason why it is important to understand, reflect upon, and have a practical knowledge of the laws governing Federal Disability Retirement issues — both in terms of statutes which govern and dictate the criteria for eligibility of Federal Disability Retirement benefits; the regulations which are propounded by the Office of Personnel Management; and the case laws which are administrative judicial opinions handed down (from the Merit Systems Protection Board, to the Full Board of the Merit Systems Protection Board; to the Federal Circuit Court of Appeals, etc.) — is that there is always a “trickle down” aspect to the evolving laws in any system of laws.

Thus, the opinions handed down by Administrative Judges at the Merit Systems Protection Board, as well as by Judges of the Circuit Court of Appeals for the Federal Circuit, are dictates and interpretation of statutory authority which are to be “followed” by the Federal Agency which is empowered to administer the decision-making process of Federal Disability Retirement benefits.

Part of that application of law, for instance, is the “standard of proof” which must be applied, and in the case of all Federal Disability Retirement applications, the standard of proof to be applied is the “Preponderance of the Evidence” standard.  But what does that standard mean?  While entirely subjective at worst, and somewhat confusing at best, the individual words which make up the conceptual entirety provides some inkling of what must be understood.

Whether qualitatively or quantitatively, one must have a showing of “preponderance” — of more, better, or of greater persuasive effect than not.  Thus, whether by sheer volume of the evidence presented, or in the quality of the presentation, the persuasive impact must be accepted as more likely than not, by the Office of Personnel Management or, if appealed to the Merit Systems Protection Board, then by the Administrative Judge.

It is important to not only apply a standard, but to have an understanding of the standard.  For, only by understanding can one then determine its proper application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Legal Sufficiency Test

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one is required to meet the legal sufficiency of the eligibility criteria as set forth by statute, expanded by regulations and clarified by cases which have come before Administrative Judges at the Merit Systems Protection Board.  

Whether one meets the legal sufficiency test in the presentation of medical and other supporting evidence, is the area of disputable territory, which is why the entirety of the administrative process has been put in place.  From the perspective of the Office of Personnel Management, they are mandated to review each case and make a determination as to legal sufficiency.  Often, however, they are not concerned with, ignore, or otherwise remain oblivious to, the legal standard of proof, of whether the applicable criteria has been met by a standard of “preponderance of the evidence”. Indeed, in many denial letters, they have instead indicated a much high standard of review, including whether the evidence is “compelling”, or whether the medical condition “prevents the Federal or Postal employee from coming to work altogether”.  

Unfortunately, the first two (2) stages of the process — the initial application stage, then the Reconsideration Stage — is reviewed by the Office of Personnel Management, with the potential for mis-application of the proper burden of proof.  

Legal sufficiency is not a standard which is applied until it enters into the “legal arena” — that of the Merit Systems Protection Board before an Administrative Judge.  Because of this, it is often a good idea to cite legal opinions in order to “apprise” the Office of Personnel Management of the applicable legal criteria, and to remind them of what extent of evidence meets the legal sufficiency test.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Different Benefits

In preparing, formulating and filing a Federal Disability Retirement application under FERS and CSRS, it is often thought that medical documentation obtained for one venue of eligible benefits (e.g., Worker’s Compensation or SSDI, or VA benefits) can be utilized in the pursuit of FERS or CSRS Disability Retirement benefits.  However, because the applicable criteria which each Federal program or benefit is different, one should always take care before submitting the same, or similar, medical documentation, for multiple and varied applications.  

It is not so much that such documentation cannot be deemed relevant for multiple purposes; rather, relevance is a relative concept, and while X can be relevant for A & B, it may only meet the statutory criteria for A but not for B.

Further, every answer to a question depends upon what the question is.  For FERS & CSRS Disability Retirement, the question always involves whether or not a Federal or Postal employee’s medical condition(s) prevents one from performing one or more of the essential elements of one’s job.  The question involving SSDI, VA Benefits or OWCP is a completely different one.  

However, a particular medical document may in fact cross the boundaries of relevance and address a specific issue or aspect of a question, and for that limited purposes, may in fact be “relevant enough” to be submitted.  Such submissions crossing boundaries, however, must be done with care and deliberation; for, while it may answer one aspect of a Federal Disability Retirement application, it could potentially raise multiple other questions which might have been best to leave alone.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Reluctant Doctor II

Dealing with the Reluctant Doctor — one who presumably has been treating the potential applicant for Federal Disability Retirement benefits for at least several months, but often for several years — is a rather “touchy” subject.  

On the one hand, the build-up of confidence, confidentiality, and security developed over many years of having a doctor-patient relationship is at stake; on the other hand, the Federal or Postal employee has come to a critical point in his or her future, career and professional life, where the support of the treating doctor in the preparation, formulation and filing of a Federal Disability Retirement application has become necessary.  

Doctors, by nature dislike the administrative aspects of preparing lengthy medical narrative reports.  Yet, most doctors recognize the necessity of that aspect of their practice, and are willing to perform the service as part of their duty to their patients.  A diplomatic, sensitive balance must be struck, but one that is honest and placed within the appropriate context of one’s health and future well-being.  

In essence, the doctor must be asked about his or her support in preparing a Federal Disability Retirement application under FERS or CSRS, but in the context of a larger discussion concerning one’s health, treatment modalities, permanency and chronicity of disabling medical conditions, and future treatment.  In essence, the “reluctant doctor” must be persuaded to disrobe his or her reluctance, for the sake of the patient’s health.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Building Blocks

The analogy or metaphor in preparing, filing, and waiting (for a decision) in a Federal Disability Retirement application for FERS or CSRS employees, submitted for review before the Office of Personnel Management, is of a child with square building blocks. If at the first try, the outcome is a nod of approval, nothing further needs to be accomplished.  If, however, a third party (the Office of Personnel Management) comes along and knocks down the building blocks (analogy:  a denial from OPM), then the child must rearrange the building blocks anew, and perhaps add one or two more for reinforcement.

Thus, depending upon the basis of OPM’s denial (which is often either irrelevant or self-contradictory, or both), one may want to reinforce that which was already gathered and organized, for a re-presentation of both the original evidence, and additional medical or other supporting evidence.  Again, if a third party (OPM) knocks down the second set of building blocks (a second denial at the Reconsideration Stage of the process), then it will be time for further reorganization, and for gathering of additional supporting building blocks.

When it gets to the Third Level of the process, the Merit Systems Protection Board, remember that all of the original building blocks of the process will still be there for the Administrative Judge to review.  That is the point of having the perspective of the entire process as one of “building blocks” — that the entire foundation is still there to be added to and reviewed, in the end, by an Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency's Power

I hear it in both the content of the question and the anxiousness in the voice of a potential client seeking representation to obtain Federal Disability Retirement benefits under FERS or CSRS:  Can the agency influence the application negatively?  Can they terminate me upon learning that I am seeking disability retirement?  Can they stop me from using my sick leave?  The power of the Federal Agency can be overwhelming, but there are limits as to what “influence” they can have over a Federal Disability Retirement application. 

Ultimately, good or bad, the Office of Personnel Management is the agency which makes the determination on an approval for all disability retirement applications, and as I have written in many articles in the past, the best way to “neutralize” the power of an agency is to prepare the medical aspect of the Federal Disability Retirement application in an excellent manner.  This is done, first and foremost, by garnering the support of the treating doctor, gathering the best medical evidence possible, etc.  Other actions of the agency — of attempting to place you on AWOL, or filing an adverse action during the process, can normally be stopped by an attorney experienced in Federal Disability Retirement laws.  Disability Retirement under FERS or CSRS is not just a matter of filling out forms; it is a matter of securing the future.

Sincerely,

Robert R. McGill, Esquire