Postal and Federal Disability Retirement: The Volume-based Application

A declaration of the sheer volume of medical evidence submitted is often an indicator of the basis for which a Federal Disability Retirement application was formulated; for, in the end, if reliance of the successful outcome of a Federal Disability Retirement application is expected based upon the longevity and extent of a medical condition, the chances of an initial approval may be somewhat compromised to begin with.

Volume can never replace content; and from the perspective of the U.S. Office of Personnel Management, there is often an underlying suspicion that receipt of a thousand pages of medical documentation indicates merely that volume of treatment is being substituted for the substantive content of meeting the required legal standards.

Much of medical notation and treatment records merely reflect a particular appointment’s mechanical applications — continuation of previous treatment plan; refill of prescriptions; standard positive or negative responses to particular questions; prospective treatment modalities; and, as supportive evidence attached to a substantive medical report, they can reinforce the satisfaction of the legal criteria of establishing the necessary nexus between one’s medical condition and the inability to perform the essential elements of one’s job.  But left as a replacement for the doctor’s explicit statement confirming such a nexus, it remains a hollow voice within an expansive but empty chamber.

One should never mistake the legal distinction between “primary” evidence and “supportive” evidence.  The former is meant to establish the nexus between one’s medical condition and the essential elements of one’s job; the latter is submitted to reinforce the former.  When one utilizes the former as the substitute for the latter, it is like the self-delusion that just because you are the best player on a pick-up team in your neighborhood, you are ready to enter into the world of professional sports.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Independence of Each Program

The disparate nature of each Federal program, with little to no intersecting coordination amongst them (with the exception of SSDI and FERS Disability Retirement benefits in the coordination of payments upon approval of each) betrays the unplanned, thoughtless creation of each program, as well as a sense that each agency wants to maintain its feudal control and assertion of independent power.

That perhaps explains, in part, why each program ignores the extent of persuasive authority the approval of another program should logically have, upon an approval and acceptance by the “other” program.  Does it make sense that being granted “unemployability” status under the Department of Veterans Affairs ascription of percentage disability ratings would only have a nominal impact upon a FERS Disability Retirement application?  Or that an SSDI approval would have, at best, a persuasive effect upon a FERS Disability Retirement?

It is somewhat more understandable that a case accepted by OWCP/Department of Labor would have minimal impact upon a FERS or CSRS Disability Retirement application, precisely because the former is set up as a program of rehabilitation in an effort to return the Federal or Postal employee back to his or her job.

The only true “coordination” of benefits occurs between SSDI and FERS — and that, only if both are approved, and payments are received concurrently; but even then, there are often overpayment problems, lack of the left hand knowing what the right hand is doing, etc.

Thus Coordination and intersection between departments, agencies and various programs rarely occurs.  Agencies tend to want to remain independent.

Such lack of coordination, however, does not mean that the FERS or CSRS Federal or Postal employee should not force a legal argument upon OPM when a significant finding is made by another agency or program.  For, in the end, it may not be the U.S. Office of Personnel Management which listens, but an administrative judge at the MSPB, or a 3-judge panel on the Federal Circuit Court of Appeals; in which case, a precedent will have been set, for all to (hopefully) follow.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Misunderstanding Leading to Irreversible Detriment

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee must first engage in a general foraging for information.

The act of gathering information is of importance; for, just like the animal in the wild who must “learn” to forage for food before the first winter comes, so the Federal or Postal employee who is contemplating filing for Federal medical/disability retirement benefits must develop the keen sense of how to gather the necessary, pertinent and relevant information concerning the entire bureaucratic process, and once gathered, to sift through the vast array of information to determine truth, falsity, relevance, effectiveness, and that which is erroneous or misleading — to one’s detriment.

Foraging is a learned tool, necessary in the wild, and a key component of the natural process of selectivity.  It begins with an inborn part of an animal’s nature, but must be honed in the wild — to be clever, quick, and be able to distinguish between that which is good for one’s diet, as opposed to that which may be poisonous.

By analogy, in the vast array of the universe of information “out there”, one must be able to quickly discern and bifurcate information concerning Federal or Postal Disability Retirement benefits, dividing between relevance and irrelevance, substance versus fluff, for purposes of failure versus defeat.  As information gathering leads to action upon the knowledge gained, so one must be cautious in determining the source of such information.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Selective Prosecution

The term itself implies a sense of unfairness.  But fairness often depends upon a viewpoint, and the methodology which is applied, or failed to be applied.

Thus, in a Federal Disability Retirement case, whether under FERS or CSRS, if the U.S. Office of Personnel Management selectively extrapolates from medical reports, without giving a thorough review and analysis of the submitted documentation, then one may validly allege that such selective “prosecution” of a case has been unfairly perpetrated.

If, on the other hand, one applies the identical concept to the Federal or Postal employee who is the applicant filing for Federal Disability Retirement, then one’s perspective may change. Because the Applicant (the Federal or Postal employee) has the burden to prove, by a preponderance of the evidence, that one is entitled and eligible for Federal Disability Retirement benefits, it is therefore proper that the Federal or Postal employee also has the “right” to selectively choose which medical conditions to identify, and to support those medical conditions with the appropriate medical documentation and proof.

One could allege that allowing for the Federal or Postal employee to choose which medical documentation to submit amounts to a selective prosecution of the case; but to make such an allegation misses the point.  It is not the act of selectivity; rather, the methodology and the underlying foundation, which determines the fairness or unfairness of the process.  Everyone has to make choices; how that choice is made, and why, makes all the difference.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Providing Information

In every area of law, in most facets of life, and certainly in the administrative procedures of preparing, formulating and filing for Federal Disability Retirement benefits either under FERS or CSRS with the Office of Personnel Management, one must determine the extent, scope and substance of the information which will be provided to the requesting entity.  

Most of the time, the extent of information is pre-determined by the requirements which must be satisfied.  Similarly, the scope of the information to be submitted must meet certain criteria, but additionally, it will depend upon the question asked.  More importantly, the substance of the information one needs to provide, will be determined by the question asked, the criteria to be addressed, and the statutory and regulatory guidelines which must be met — in the case of Federal Disability Retirement under FERS or CSRS, that which would meet the legal standard of “preponderance of the evidence.”  

In venturing and maneuvering through the administrative process of applying for Federal Disability Retirement benefits, however, there will be times when either the Agency or the Office of Personnel Management may request “additional” information, indicating that they are not satisfied with what has been submitted.  

An appraisal of what information is being asked; whether the question is properly formulated as posed, or whether it can be reformulated and still satisfied; and the harm or good in responding fully or partially to the request — these are all determinations which are best guided by the advice and counsel of an attorney who understands the laws governing the legal criteria in Federal Disability Retirement cases.  

Not every question deserves a full answer.  Sometimes, the question itself must be re-formulated and answered in the re-formulated format.  Agencies are not gods; they are not omnipotent, and certainly not omniscient.

Sincerely,

Robert R. McGill, Esquire

FERS Medical Disability Retirement: A Fair Hearing

It is a common complaint against the Office of Personnel Management that the particular Claims Representative who reviewed the file and issued a denial in a Federal Disability Retirement application failed to look at, or review, the medical evidence; that the denial letter was merely a restatement or regurgitation of a template referring to a 7-part criteria, and makes statements which could easily have been “cut and paste” from a thousand other such disability denials.

Indeed, there have been times when references to a denial were clearly (and mistakenly) extracted from another file, where the names of doctors and medical documents are referred to which have no relation to the particular individual, and are clearly mixed in from another case.

To be fair, a counter-argument to such criticism is that there is no bureaucracy, with so many cases to review and properly evaluate, and with so few personnel and staff to undertake the massive workload, that could or should “reinvent the wheel” each time a case is set to be reviewed.

Obviously, certain language that is applicable in all (or most) cases will be re-stated, and templates used where such have been standard language used in the past.  Applicable language and statements which merely reiterate the legal and statutory criteria; introductory remarks; conclusory statements — they are all part of a paradigm and template which any administrative bureaucracy may apply.

But the criticism goes much deeper than that:  It is often the case that, clearly, the OPM Disability Claims Representative who wrote the denial did not even read his or her own denial.  Proofreading is an essential part of reviewing, writing, and issuing a decision.  OPM must ultimately realize that each decision is an important, crucial, and often critical point of importance in the life of the applicant.

It is a Federal or Postal worker who has previously dedicated many years of his or her life to a career with the Federal Sector, and the applicant for FERS Disability Retirement benefits deserves a fair hearing.  A fair hearing is defined by a careful evaluation of the particular case.  That is not too much to ask for.

Sincerely,

Robert R. McGill, Esquire

 

Federal Employee Medical Retirement: Medical Records Alone

Medical records can provide valuable information, and as a tool in getting a Federal Disability Retirement application under FERS or CSRS approved, it should be selectively submitted.  Can it replace a medical narrative report from a treating doctor?  Normally, a narrative report from one’s treating doctor — whether a specialist, a family doctor, a psychiatrist, etc. — is invaluable in preparing, formulating, and submitting a Federal Disability Retirement application under FERS or CSRS.  The combination of the two, of course, is unequivocally the best-case scenario:  of a medical narrative report supported by, and in consonance with, the office notes, surgical notes, treatment notes, etc.

However, it is not impossible to get a Federal Disability Retirement application under FERS or CSRS approved based upon medical records alone.  If that is the only course of action left — with the alternative choices being of walking away without filing for Disability Retirement benefits — then a Federal Disability Retirement application based upon one’s medical records alone can be successfully argued, but it must be done with meticulous care, and squeezing every notation and attribution of annotations to their fullest relevance, extent and extrapolating significance.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Office Notes

The Office of Personnel Management will often request that a doctor’s “office” or “treatment” notes be attached for approximately the last 1 – 2 years.  What is the purpose of this request?  Normally, to compare whether or not the doctor’s treatment notes reveal the consistency with what is stated in the narrative report prepared by the doctor.  This is often unfair, of course, because the purpose of office notes is quite different from the purpose behind a narrative report requested to support a Federal Disability Retirement application under FERS or CSRS.  

Office notes often reflect a cursory overview of the type of treatment rendered, and will sometimes contain statements of the positive advances and treatment responses of the patient/applicant, including any progress made in response to therapy, surgery, treatment, and medication regimens.  Thus, statements such as, “patient is showing good progress” or “Patient comes in today feeling much better” may be used by the Office of Personnel Management to deny a Federal Disability Retirement application under FERS or CSRS, and yet such statements must always be seen within the context of treatment, and in no way are inconsistent with a medical narrative report which clearly and unequivocally shows that a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job.  Next:  How to overcome OPM’s unwarranted focus upon the Office/Treatment notes.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Other Processes

Does it make a difference to list that one’s Federal Disability Retirement case is also accepted by OWCP/Department of Labor as an “accepted case“?  Or that one has been deemed 90% disabled by the Veterans Administration — or, more to the point, that one has received a 100% unemployability rating?  How about having been approved for Social Security Disability Insurance benefits (SSDI)?  Aren’t these all “indicators” of a medical disability?

The short, uncomplicated answer is that, yes, such acceptance and approval by other agencies and sources can be indicators of a medical disability, and these findings can help you to enhance your chances with Office of Personnel Management (OPM).  The longer, more complicated issue, however, is how to divulge and inform the OPM about the “other” Agency, the acceptance, and the relevance of what an approval or an acceptance by another agency should mean to one’s Federal and Postal Disability Retirement application.

Unfortunately, there is no generic or universal rule concerning OWCP-accepted claims, SSDI approvals, VA determinations, etc., with respect to their relevance to an OPM Disability Retirement application.  Each case is unique; there is case-law which is applicable to each one, independent of the other; and because the criteria which governs each is different from any other, they must be dealt with in an independent manner.  This is not a reflection upon the individual filing for Federal Disability Retirement benefits under FERS or CSRS; this is more a reflection upon the asserted independence of each Agency from each other.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Government Employees: The Medical Records

Federal Disability Retirement under FERS & CSRS is essentially “connecting the dots” between one’s medical conditions (whether singular or multiple) and the impact of the medical condition(s) upon one’s ability to perform all of the essential elements of one’s job.  The treatment records, also, are helpful in the matter of connecting the dots, as the Office of Personnel Management will often request a copy of the medical records — evidence of treatment over the years — in order to ascertain the extent of the medical conditions claimed.  

This can sometimes present a problem, when a Federal or Postal employee has switched doctors, has quietly endured the pain of the medical condition with little or no treatment over the years, or where the doctor fails to annotate any legible or detailed notes in his or her treatment notes.  Normally, however, there is a consistency of evidence between treatment/office notes and the medical narrative which the doctor prepared; or, between the diagnostic results and the clinical findings and conclusions of the treating doctor.  Where there is a lack of medical records “backing up” the narrative report of the doctor, often a Functional Capacity Evaluation or an “independent medical evaluation” by a referral doctor will help a case.  As always, there are ways to counter the problems which arise, in order to meet the eligibility criteria as proposed by the Office of Personnel Management in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire