Federal & Postal Disability Retirement Lawyer: Figures Larger than Life

Once, mythological figures and characters looming larger than life itself wandered amidst the common populace of everyday working folks; their very presence bestowed a greater sense of purpose, of a pride in knowing that better days lay ahead, and that even in the upheavals of tempestuous travails and turmoils which interrupted every economy and fiefdom because of the inevitable vicissitudes of economic activity, that somehow we would all survive through the common efforts of community.  But the pureness of the mountain stream became poisoned, diluted and polluted by egomaniacal intrusions of selfish constructs; “we” did not matter much, if at all, and the accolades of accretion demanded greater self-congratulatory spotlights of self-centered egoism.

Thus was the “selfie” born.  In the midst of such a society, empathy for the disabled will be wanting and rare; the saying that he would shove his own grandmother under a moving bus is not merely a warning, but a confirmation of normative character.  For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, it is well to know who, and what, one is dealing with.

Agencies and Post Offices which may have shown care and comaraderie during better times, may not continue the surface-appearance of comity and cooperation when it becomes clear that the Federal or Postal employee can no longer remain as fully productive as in years past.  Human nature being what it is, the self-contradiction of man’s thought processes can always amaze and delude:  One believes that one is neither naive nor ignorant; concomitantly, that the world is generally an evil arena of life; but, somehow, one’s own friends, family, and agency are the exception, when the callous experiences of life have shown us otherwise.

Filing for Federal Disability Retirement benefits by the Federal employee or the U.S. Postal worker, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, through the U.S. Office of Personnel Management, is a clear indication to one’s agency or the U.S. Postal Service that you are no longer “one of us”, and more to the point, can no longer contribute to the betterment of the agency, the Postal Service, or to the advancement of management’s careers and objectives.

You become considered as mere dead weight and fodder for the wasteland of problems and pecuniary penchants of piracy and pernicious paupers.  You become erased and digitally deleted from those seemingly happy images of office parties and ceremonial accolades where words of praise once were dispensed with generous helpings and heaps of adjectives and adverbs not often heard.  You become the nobody that you always were perceived to be behind those lying eyes, had always been, and forever considered; you just didn’t know it before the occurrence of confirmed establishment.

Perhaps we know too much today, because information is cheap and available; and perhaps giants never roamed the earth in epochs extinguished by time and modernity; for the figures larger than life are nowhere to be found, but in what we make of our lives through sheer effort, planning, and genuine concern for the man sitting right next to us.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Disability Retirement: OPM’s Generic Denial

Often, cases are mishandled not because of the “present” mistake, but because the case was never prepared for the “long-term” event.  Let me elaborate and explain. Obviously, an applicant for disability retirement benefits under FERS & CSRS wants to win the case at the earliest stage of the process.  The attorney who is handling any such disability retirement case, similarly, would like to “win” the case at the earliest stage possible.  However, sometimes that is simply not going to be the case. 

In an initial denial, it is often important to not only address the case for the Reconsideration Stage, but also to prepare the case for the next stage — the Merit Systems Protection Board (and, similarly, in preparing an application for Disability Retirement, it is important to prepare such an application not only for the initial review at OPM, but also for the Reconsideration Stage).  By this, I mean that, because there is at least a “possibility” that the disability retirement application will be denied again at the Reconsideration Stage, it is important to point out the deficiencies, the lack of clarity, the inadequate reasoning, the outright lies and mis-statements which the Office of Personnel Management may have engaged in as part of the “Discussion” Section of the denial letter.  Often, while OPM may give some “lip-service” to make it appear as if your case was thoroughly reviewed, a closer reading (on second thought, it need not even be a closer reading) clearly shows that OPM did a shabby job in denying a case.  It is what I ascribe as OPM’s “generic denial” — a denial so devoid of any particularity or care as to reveal a complete lack of proper administrative review of the case.  Such lack of proper administrative review is what needs to be shown; it needs to be shown because, if OPM denies the case again, then it is advantageous to the applicant to have the Administrative Law Judge at the Merit Systems Protection Board see that he will be hearing a case which may not have been necessary — but for the lack of diligence on the part of OPM.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact 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”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. 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. Further, the Court went on to state that 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.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Lawless Supervisor

Every now and then (or perhaps more often than we like to think) a Supervisor will fill out the SF 3112B (Supervisor’s Statement) with such venom and innuendo and half-truths, as to make the disability retirement applicant out to be John Gotti’s half-brother and reincarnate of the conceptual paradigm of the greatest incompetent the Federal Government has ever seen (next to the Supervisor himself, of course). Or, it will state that the applicant has been “under investigation”, or that he/she has “mislead” the Agency, or other such half-truth, unsubstantiated allegation. The problem in addressing such a Supervisor’s Statement with the Office of Personnel Management (if, in fact, one has the opportunity to address the issue before it gets to OPM or, as is more often the case, if the disability retirement application is denied, and the Supervisor’s Statement is referenced in the initial decision of denial), is the following: If you address it too forcefully, or emphasize it, then you are in danger of focusing the “fight” on the truth or falsity of what the Supervisor has said. In other words, you have essentially allowed the Supervisor to win the fight by shifting your focus upon the venom of the Supervisor. It is more likely the wiser course of action to grant minimal attention to the Supervisor’s Statement; give it the due response it deserves, addressing the falsity of the statement, and how it is entirely unsubstantiated; and, sometimes, express outrage that OPM would have even considered such scandalous charges when it has been unverified; then focus most of the attention upon the validity and force of the Medical Narrative Report that accompanies the disability retirement application. For, after all, always remember that this is a “Medical Disability Retirement Application” — with the emphasis upon “medical”, and not “Supervisor”.

Sincerely,

Robert R. McGill, Esquire