FERS & CSRS Disability Retirement for Federal and USPS Workers: Office Notes

The Office of Personnel Management, in reviewing a Federal Disability Retirement application under either FERS or CSRS, will often request to see the doctor’s office/progress notes, detailing the history of treatment for the previous 18 months.

Such scrutiny of clinical notations made by the treating doctor is meant to verify and validate the statements made by the doctor in his or her medical narrative report, to see if there are internal contradictions between the clinical notes and the narrative report prepared for purposes of obtaining Federal Disability Retirement benefits.  Such a review of clinical notes can be an unfair process, precisely because they are being reviewed with a paradigmatic purpose in mind:  to “find” any inherently contradictory remarks or evidence which conflicts with statements made in the primary medical report.  

Thus, reviewing the medical notes in a vacuum, outside of the context of the entirety of treatment, and with the intention and motive of seeking out any “discrepancies”, will sometimes result in a denial based upon selective interpretation of the office/progress notes.  Statements such as, “medications are helping”, “patient notes feeling better”, “Is sleeping much better”, can provide a false picture of the actual progress of the Federal Disability Retirement applicant.  Indeed, such a skewed picture will often come up in the denial letter issued by the Office of Personnel Management, where the denial letter will selectively quote from the progress notes.

This reminds one of a particular case where the Office of Personnel Management quoted from clinical notes, statements made by the applicant:  “Feeling much better”; “Making great progress”; “overall doing very well.”  The problem, however, is that the applicant was permanently in a wheelchair, and the job was that of a Law Enforcement Officer.  It was denied at the Initial Stage; at Reconsideration, when the pertinent facts were pointed out to OPM, it was quickly approved.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Reasons & Conclusions

In a denial letter from the Office of Personnel Management for a Federal Disability Retirement application filed under FERS or CSRS (which, if received, a Federal or Postal employee must file a Request for Reconsideration within 30 days of the date of the denial letter), the connection between the reasonings given, and the conclusions arrived at, will often be missing.  

Often, OPM will tangentially or in a cursory manner refer to various medical documents which were submitted with the original Federal Disability Retirement packet, or actually extrapolate a selective quote from a medical report or office note, and even make it appear as if a full and complete evaluation of the submission has been performed.  Thereafter, a conclusory statement will be proposed, often with a logical pretext of:  “Therefore, your application is denied.”

However, there is a vast difference between referring to various medical reports or statements, and evaluating such reports and statements in order to arrive at a proper legal conclusion based upon the evidence submitted.  It is rare that the Office of Personnel Management engages in the proper evaluative process in determining whether or not a Federal or Postal worker’s Federal Disability Retirement application meets the applicable legal criteria.  That said, such lack of evaluative and analytical process is legally required, and there must be a logical connection between the reasons given, and the conclusions reached.  Such lack of engaging in the process must be pointed out, but it must be done in a “diplomatic” manner.  Diplomacy is best engaged in by diplomats; similarly, legal issues are best tackled by lawyers.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Perspective from the Office of Personnel Management

In effective argumentation, persuasion, written memoranda, oral presentation, and the entire spectrum of attempting to convince the “other side” of the validity, force, appropriateness, and viability of any administrative or legal filing of any nature, it is often a useful tool to attempt to view an issue from that “other” perspective.

Remember that, in filing a Federal disability retirement application under FERS or CSRS, it is good to consider the fact that the OPM representative who will be reviewing your particular application, merely sees your application as one among hundreds of files assigned to him or her. With that in mind, the essential question becomes: How can my particular application, as one among many, be reviewed in such a way that it “stands apart” so that it will be quickly approved? If you ask that question, or any variation of such a question, then you may be taking a wrong approach.

Remember that filing for disability retirement under FERS or CSRS is not like applying for a job; you are not filing a resume that needs to stand out; rather, it is often best if your particular application is nothing more than a “run of the mill” application — with strong, unequivocal and irrefutable medical evidence, along with strong legal arguments to support your case. Yes, of course your Applicant’s Statement of Disability should explicitly describe the human condition of medical disablement; yes, the “nexus” between your medical condition and your job should be carefully constructed; but no, your application should not necessarily “stand out” as uniquely different — for such an application will often be viewed as “suspicious” and “over-stated”, and may well lead to not just a first viewing, but a re-viewing, and a possible denial

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Reasonable Accommodation by the Agency

Often, aside from having submitted insufficient medical documentation to support a Federal Disability retirement application, the Office of Personnel Management will deny a case based upon a statement submitted by the Supervisor, normally on SF 3112B (aptly entitled, “Supervisor’s Statement”).  Now, in preparing a Federal Disability Retirement application, I rarely worry about what will be on a Supervisor’s Statement, primarily because the applicant rarely has any control over the contents of the statement, anyway, and therefore to focus upon that which one has little or no control over, is simply a waste of time.  Instead, I focus upon obtaining an overwhelmingly convincing medical narrative report from the doctor, which then essentially makes the Supervisor’s Statement — if it is viewed somewhat as “negative evidence” by the Office of Personnel Management — a moot and irrelevant point of contention.  More often than not, when the Office of Personnel Management refers to the Supervisor’s Statement as revealing some basis for denying a disability retirement application, I find that OPM has either mis-read the import of the statement, or has selectively misquoted from the Supervisor’s Statement.  Remember that the law requires that the Agency provide a “reasonable accommodation”; more often than not, what the Supervisor or the Agency has provided, is neither “reasonable”, nor an “accommodation” under the law.  In any event, whether by misquote, unfair and selective reasoning, misreading, “unreasonable”, or not an “accommodation” at all, I rarely find that the Supervisor’s Statement is helpful or unhelpful; and, certainly, I have never found that a Supervisor’s Statement contains any substance which would or should be the basis of a denial from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: The Danger of Situational Disability

The danger of falling into the trap of situational disability, which is one of a number of reasons for denying a disability retirement application, can come about quite regularly. Especially because, in the face of contending with a medical disability that is serious enough to warrant changing one’s career, of filing for medical disability retirement — there is often the Agency’s contentious response, of needing to have the continuity of the work accomplished, of being insensitive and lacking compassion for the applicant; in such a context, the applicant views the Agency’s response as hostile.

The employee/applicant, then, in filing for disability retirement, will often make the mistake of focusing upon the hostile work environment, or the lack of compassion and empathy on the part of the Agency — and this will often warrant a denial of disability retirement based upon the medical condition of the applicant as being “situational disability” — meaning that the medical condition of the employee/applicant is limited to the work situation of that particular office or agency. This is a completely wrong-headed approach for the applicant.

That is why, when I represent my clients, I am singularly focused upon the 2 or 3 main issues that form the essence of a disability retirement case, and insist upon focusing my clients upon those very same issues, while setting aside those tangential issues which can ultimately defeat a disability retirement application. Understand that these peripheral, tangential issues may well be “important” to my client — but I would not be doing my job in representing my clients if I allowed the peripheral issues to become “front and center” — for that would be a disaster for my clients. I represent people to obtain disability retirement benefits. That is my job. That is my focus. If I allow my focus to waiver, then I am not representing my clients properly.

Sincerely,

Robert R. McGill, Esquire