OPM Medical Retirement Attorney: Formulating the Effective Case

Is it inherently presupposed that a case to be formulated is one which should be “effective”?  By the insertion of that term, of course, it immediately implies a retrospective vantage point — an “ends” to “means” view of an outcome-based approach.

If a Federal or Postal employee who files for Federal Disability Retirement benefits, whether under FERS, CSRS or CSRS Offset, receives a denial from the U.S. Office of Personnel Management, one assumes that the case was not “effectively” formulated.  On the other hand, if an approval is received from OPM, one need not consider any such issue, but merely moves on to the “when” phase — as in, “When am I going to get paid“?

Outcome-based formulation of a case is never an unwise approach; but the mere fact that a denial is issued by OPM after reviewing a given Federal Disability Retirement application, does not mean that the case itself was not originally “effective” in the formulation and submission.

There are OPM “administrative specialists” who systematically deny cases; certain others who require a higher standard of proof beyond what the law mandates; and even those who extrapolate clear evidence in a denial which establishes eligibility for Federal Disability Retirement, but nevertheless concludes with a disapproval.  Such arbitrary outcomes may seem unfair and unwarranted, but it is a reality which must be faced.

In light of this, the positive outlook to embrace is the fact that Federal OPM Disability Retirement is an administrative process with multiple stages for appeals and additional bites at the proverbial apple.

From the outset, it is always a good idea to carefully prepare, formulate and file an “effective” case; but the mere fact that the first attempt fails to achieve the outcome desired, does not diminish or extinguish the positive assessment reached at the outset when first the OPM Disability Retirement packet was submitted; rather, it just means that additional proof and evidentiary addendum must be forthcoming to satisfy the bureaucratic process of further effectuating the efficacy of an already-effective case.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement: The Problem with Answering an OPM Denial

A denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management always leaves the applicant and his or her attorney at a disadvantage.  This is because OPM is never answerable to any resulting consequence of a denial; at least, not directly.  Think about it this way:  In the initial application, if an OPM Disability Retirement application is properly prepared and submitted according to, and within the parameters of the laws governing Federal Disability Retirement, one would assume that it should be approved.  If it is denied, then the case is sent to the “Reconsideration” division of OPM — meaning, to another person. 

Now, taking it out of the hands of one OPM Representative into the hands of another, has both the good and the bad mixed together:  the good is that it will now be reviewed afresh by someone else; the bad is that the person who denied the original application has no further responsibility for the denial.  This is true, incidentally, with respect to the Reconsideration Stage of the process; if a second denial is issued, the person who issues the second denial also has no responsibility to answer for the basis given in the denial. 

The “light at the end of the tunnel“, however, comes when it is finally taken up by an Administrative Judge at the Merit Systems Protection Board.  While the AJ cannot hold anyone at OPM responsible for a denial which never should have been, at the very least, when the AJ reviews the record and finds that the previous denials were unfounded or rationally without legal foundation, an immediate recognition of a baseless denial can help the applicant.  Ultimately, rationality and legal integrity has a chance to prevail; it sometimes takes more than one bite at the apple.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Revisiting the Concept of “Accommodations”

“Accommodation” is a legal term of art.  At least, in preparing a Federal Disability Retirement application under FERS or CSRS, it is a specific term, with specific definitions, with underlying meanings that need to be fully understood in preparing a viable and successful disability retirement application.  In very loose, non-legal terms, there is never anything wrong with an Agency Supervisor “accommodating” a good and loyal Federal employee — by allowing the person to take LWOP; of instituting liberal leave policies; of lessening the workload; of allowing for temporary light duties; of minimizing travel, restricting certain physical requirements, or reassigning certain complex projects to other employees of the Agency.  Every good supervisor does this; and, indeed, sometimes everything works out for the best, and the temporary measures undertaken by the supervisor may allow for the employee to sufficiently recover and later reaffirm all of the essential elements of the position.  But the remaining question is:  Were those measures considered an “accommodation“?  The answer is:  No.  Why not?  Because such measures do not constitute and meet the definition of “accommodation” under the laws governing Federal Disability Retirement.  They may be “good” for the Agency, but they do not preclude one from filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: What to Do

Whether or not one should hire an OPM Disability Attorney at the initial stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS, or whether to wait for a denial; such a question must be answered by each Federal or Postal employee, based upon the strength of a case, based upon the financial resources of the individual and the family, and based upon the ability of the potential applicant to organize, compile, streamline, delineate, communicate, descriptively convey, and methodologically argue the strength of a case.  Much of being able to successfully compile the multiple facets of a Federal or Postal Disability Retirement application depends upon the discretionary ability to make judgments about which aspects to emphasize and magnify; which aspects to de-emphasize; and (often) most importantly, which issues to “leave alone”. 

Whatever it is that one does in preparing a Federal or Postal Disability Retirement Application under FERS or CSRS, the “What to Do” list must always include what NOT to do.  Whatever it is that one does, one should do nothing that is going to negatively impact one’s application or case.  And, above all, remember that the person who “assumes” that the Federal Disability Retirement application will be approved at the first stage, and prepares such a packet, is often the person who regrets having said “this or that”, or wishes that “x, y or z” had not been included.  This is especially true when it gets denied the first time, and then the second time, and it is now being reviewed by an Administrative Judge.  On the other hand, I have found that there are few, if any, issues which are not ultimately “correctable” or able to be “explained away”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Doctor's Opinion

As an attorney who represents Federal and Postal employees to “obtain” Federal Disability Retirement benefits, it is important to make distinctions within the process of securing the Federal benefit:  while it is important to solicit and secure the medical opinion of the treating doctor, the resistance from such doctors — if in fact there is any resistance at all — most often comes about because the doctor doesn’t understand the “process”. 

Doctors are medical providers.  They are in the practice of medicine because they believe in applying the science of medicine to help their patients get better.  Helping someone obtain Federal Disability Retirement benefits under FERS or CSRS is not part of “practicing medicine”.  Yet, in many ways, it is.  It is part of practicing medicine because, to allow the patient to continue to work in a job which he or she cannot perform, will only exacerbate and worsen the medical condition. 

Further, doctors never like to “disable” their patients.  To counter this medical opinion, it is important to clearly inform the doctor what the process of Federal disability retirement is and is not.  It is the job of the attorney hired to represent a Federal or Postal worker to obtain disability retirement benefits, to clearly and cogently explain the entire process to the treating doctor.  That is what I do, at the very start, in representing my clients.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Experience & the Medical Condition

Often, when a client receives the finalized disability retirement packet, I receive a response that goes something like:  “I didn’t realize I was so bad off, until I read through the prepared packet.”  While I have not personally experienced the medical conditions of my many clients over the years, I have the experience of having spoken to them, and have learned about the symptoms, the words which best describe the pain, the impact, and the symptoms which are experienced on a daily basis. 

That is why it is an absurdity for the Office of Personnel Management, for example, to continually and redundantly refer to Fibromyalgia cases as ones with symptoms which “wax and wane”.  Or, with severe Major Depression, Anxiety and panic attacks, the Office of Personnel Management will systematically deny many such claims by stating that there is no “objective medical evidence” to show that the individual is unable to continue to provide efficient service in a cognitive-intensive job.  It is the job of the attorney, in a Federal Disability Retirement case, to be the one who projects the experience of the disabled Federal or Postal employee.  The attorney does not have to personally experience the medical condition in order to properly and descriptively convey the impact of the symptoms and debilitating conditions; however, it is helpful if the attorney has had a wide range of experience — by having spoken to multiple individuals over the years who have personally experienced such conditions.  In this way, the attorney can obtain the experience to express the medical experience of the applicant.

Sincerely,

Robert R. McGill, Esquire