Early Medical Retirement for Disabled Federal Workers: Harm of Linguistic Impurities

The integrity of the law is kept intact by the careful scrutiny of compliance, via oversight by guardians whose responsibility it is to maintain, challenge and question the diversionary attempt, however minor and in what seemingly inconsequential modalities, such imperceptible excursions into areas outside of the linguistic purity of the law, regulations and case-law interpretation when attempted.

In Federal Disability Retirement law, it is the Federal Agency itself — the U.S. Office of Personnel Management (OPM) — which often must be kept “in check”.  For, it is precisely those “allowances” of language which provides for licenses not otherwise granted which, if left unchallenged, will continue to repetitively reappear in subsequent decisions rendered for future Federal Disability Retirement applicants.

Thus, in a Federal Disability Retirement denial, it may be that a decision of denial of a Federal Disability Retirement application may state that the medical evidence “does not show that your medical conditions kept you out of the workplace altogether”, or that the diagnostic testing did not establish that the Federal Disability Retirement applicant “had a disabling disease which caused a disablement which incapacitated” the individual — implying, thereby, a standard of medical disability far above and beyond what is necessary for eligibility for Federal Disability Retirement benefits.

Such misstatements must be challenged and refuted; otherwise, the integrity of the law is left soiled and smeared, and future attempts by Federal and Postal Workers may be harmed by the careless allowance of linguistic impurities to surface and fester.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Manufactured Legal Criteria

Even assuming good faith, the application of a manufactured legal criteria can lead to a harm which can be irreversible.  The consequence of a Federal or Postal employee relying upon a mis-stated, non-existent legal criteria can potentially result in simply raising one’s hands in frustration, as a sign of futility, and giving up on the process of attempting to pursue a Federal Disability Retirement application under FERS or CSRS.  

David Hume’s philosophical argument concerning causality and the fact that, because there is no “necessary connection” between two objects which meet, which result in one object “causing” the movement or sequential effect of the second object, may be a technically ingenious analysis of an intellectual discourse.  In the “real world”, however, when two objects collide, there are causal consequences.  

Similarly, in a Federal Disability Retirement application under FERS or CSRS, when the Office of Personnel Management requires that one submit “objective evidence” to justify the medical doctor’s conclusions of disability, what the Office of Personnel Management is requiring is a “necessary connection” which does not exist in “the law”.  Years of clinical examinations; notations of progressive deterioration; limited flexion and mobility; consistent complaints of pain; the aggregate of such complaints in and of itself constitutes evidence — but of course OPM ignores such evidence as being merely “subjective“.  

Just as Hume’s requirement of a necessary connection violates the pragmatic standards applicable in the “real world”, so OPM’s requirement of “objective medical evidence” betrays the legal criteria in a Federal Disability Retirement application. Fighting the misapplication of a non-existent legal criteria is like denying a negative, however; it can be done, but you must use the law as a sword, and not merely as a shield.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Standard of Proof

In reviewing a Federal Disability Retirement application under CSRS or FERS, the mandate of burden is determined both by statute and regulation, and the Merit Systems Protection Board reiterates the burden of proof in each of its decisions — that of proving one’s case by a “Preponderance of the Evidence“.  

This is a relatively low standard of proof — of showing that one is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS based upon a showing that, with all of the evidence considered, it is more likely than not that the Federal or Postal employee has shown that he or she cannot perform, because of one or more medical conditions, one or more of the essential elements of one’s job.  

There is often a question as to whether this same standard of evidentiary showing applies to the Office of Personnel Management, and this question is posed because of the statements made in many of the denial letters (which then prompts a necessary request for Reconsideration, or an administrative appeal to the 2nd Stage of the process; or, if denied at the 2nd Stage — the Reconsideration Stage — then an appeal to the Merit Systems Protection Board) issued by the Office of Personnel Management, to wit:  The evidence you submitted did not show a “compelling” reason why you could not…; The medical evidence did not show that you had to be “excluded from the workplace completely”; and other statements which seems to require a higher showing than that of “preponderance of the evidence“. 

OPM is supposed to follow the same standard of proof — that of preponderance of the evidence.  Sometimes, they need to be reminded of it.  

However, inasmuch as the safety mechanism for review of an improper standard is an appeal to the Merit Systems Protection Board, such a reminder often must take the form of an appeal.  Without the appeal basis, the Office of Personnel Management can ignore the relevant statutory burden of proof.  But then, that would not be the first time that an agency acted in a non-compliant manner.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law II

A more extensive article on the recent case of Reilly v. OPM has already appeared in FedSmith.com, because it is an important step forward in Federal Disability Retirement Law.  Decided July 15, 2009 by the United States Court of Appeals for the Federal Circuit, it topples another idol of a false standard imposed by OPM:  that medical documentation which is written by a doctor after a Federal or Postal employee is separated from Federal Service may be dismissed as being near-irrelevant in evaluating and reviewing a Federal disability retirement application. This has never made sense, since many medical conditions are progressive and degenerative in nature, and that is precisely what the Court in Reilly argues.  “The field of forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition,” the Court in Reilly argued, citing the classic example that “inferencesabout prior intoxication can be drawn from blood alcohol tests conducted at a later time.”  Further, where “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent evidence can be very probative of a prior disability.” Of course medical evidence gathered within the 1-year period after separation of service should be given probative value.  The Court in Reilly states that principle clearly.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirements: Groundless Denials of FERS/CSRS Disability Retirement Applications

One would assume that when a disability retirement application has been reviewed by someone at the Office of Personnel Management, and a decision of denial has been rendered, that such a decision will — at a bare minimum — be based upon a legally sufficient ground. In other words, that the legal criteria asserted in the decision will be correctly delineated.

Unfortunately, that is too often not the case. In fact, many of the legal claims asserted by the Office of Personnel Management have no justification in law, and are exaggerated at best, and a mis-statement of the applicable laws, at worst. But for disability retirement applicants who are unrepresented, the individual may well read the decision, believe what the decision states, and become convinced that the burden is too onerous to overcome, and fail to request reconsideration in the case, discouraged that he or she will never be able to meet the legal burden imposed in the initial denial.

Thus, for instance, when an OPM denial letter states that there was “no evidence showing hallucinations, delusions or other symptoms of psychosis,” and therefore the disability retirement is denied, one might conclude: “Since I don’t have those conditions, I must not be qualified for disability retirement.” Wrong! Or, when OPM says: “There was no evidence of hospitalization or the need for such treatment,” one might become completely discouraged and say, “Oh, disability retirement requires that my medical condition is such that it requires hospitalization in order to qualify, and therefore I cannot qualify“. Wrong! Such overstated and exaggerated claims by the Office of Personnel Management are commonplace, and unnecessarily place a burden upon disability retirement applicants through mis-statements of the law. Never allow an OPM mis-statement of the law to persuade you to abandon your case; instead, seek competent legal counsel to explain what the law of disability retirement really is, and proceed from here.

Sincerely,

Robert R. McGill, Esquire

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire

Summary Legal Update for FERS & CSRS Disability Retirement

On my website, Federal Disability Retirement Lawyer, I give a more extensive explanation of a recent and important case impacting federal disability retirement applications, but I think that it is important for everyone filing, or contemplating filing, for disability retirement under FERS or CSRS, to be aware of the recent United States Court of Appeals case for the Federal Circuit, Vanieken-Ryals v. OPM, #2006-3260, decided on November 26, 2007, in which it was found that OPM’s adherence to the rule that they will refuse to “consider such medical evidence…for being ‘purely subjective’ is a critical legal error…and clearly prejudicial.”

Often, in cases involving cognitive impairment, psychiatric disabilities, disabilities involving diffuse and chronic pain, and those conditions such as Fibromyalgia, Chronic Fatigue, etc. the Federal Circuit Court in Vanieken-Ryals has essentially held that OPM’s adherence to “objective evidence” is “unsupported in the law, was arbitrary, capricious and contrary to law.”

The Judge therein stated that OPM must consider the medical evidence that is submitted, and cannot attack a medical condition unless there is a doubt as to the “credentials or veracity [of the doctor],” and this is especially true where the doctor has “utilized established diagnostic criteria and [is] consistent with ‘generally accepted professional standards’ ” of medical practice.

This is an important case for Federal disability retirement applicants to use when filing for psychiatric medical disabilities, and for those “hard to define” cases (again, e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.), because OPM will often declare as a basis for denial that the applicant lacked “objective medical evidence” or that there was no “objective diagnostic tests” showing the medical condition. This is, to use a very well-know legal term, now considered “baloney”. As long as the doctor has applied established diagnostic criteria and generally accepted professional standards, unless OPM can attack the credentials of the doctor, they must consider the medical evidence.

Sincerely,

Robert R. McGill, Esquire

Important Cases Which Impact Disability Retirement Applications

The recent case of Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, cannot be overemphasized for its importance to the disability retirement process. It is, in my view, a landmark case which will greatly advance potential disability retirement applicants who base their disabilities upon psychiatric conditions. In representing my clients, I have repeatedly argued that the Office of Personnel Management’s insistence upon “objective medical evidence”, especially when it involves clients who suffer from psychiatric medical conditions (e.g., Major Depression, Anxiety, panic attacks, Bi-Polar Disorder, etc.) is not only unfair, but irrational. My past arguments were met with varying degrees of success, but the essential argument that I made over the years went something like this: Psychiatric disabilities by their inherent nature are “subjective”, because there is no diagnostic test which can objectively determine symptoms of psychiatric disabilities. Indeed, while there are multiple psychological tests which can be administered, the results are still based upon the subjective responses of the patient. Furthermore, a doctor’s clinical examination, long-term evaluation by a treating doctor, and the consistent assessment by one’s treating doctor, provide for the best and most ‘objective’ basis for a valid medical opinion. Further (my argument would often go), even physical disabilities (like a bulging disc) which can be ascertained by an MRI, cannot provide a conclusive basis to determine the extent of one’s pain or inability to perform certain tasks, for pain is by definition a “subjective” condition; there are, indeed, some who have bulging discs but have very little pain, and others who have a minimal bulging disc which completely debilitates the individual. These were rational arguments made, and while fairly persuasive when combined with case-law citations, the force of such arguments often depended upon the receptiveness of OPM’s representative or, at the Merit Systems Protection Board level, the receptiveness of the Administrative Judge.

With the opinion expressed by the Court in Vanieken-Ryals v. OPM, we no longer need to rely upon the arbitrary receptiveness of an individual, for we have a firm legal basis to counter the irrational basis that OPM routinely gives in their denials based upon an objective/subjective distinction.

The Court in Vanieken-Ryals made several important declarations in their opinion:

1. 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”, especially when the application is based upon psychiatric medical conditions. This, because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability.

2. 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.

3. 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.”

Ultimately, for purposes of this article, which is (hopefully) read by many non-lawyers, the essence of the Vanieken-Ryals case is that it exponentially strengthens a disability retirement application based solely upon psychiatric medical disabilities. The case itself contains many other elements which provide for strong ammunition, when used wisely and with knowledge, for the disability retirement practitioner of law. It makes a strong and unequivocal statement that OPM’s and MSPB’s adherence to a rule which systematically demands for “objective” medical evidence and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.” This is indeed strong language which can be used as a sword to prevail in a disability retirement case.

Persistence in the pursuit of a client’s right and entitlement to disability retirement benefits is never a lost cause, and those who have hesitated from filing for disability retirement because they suffer from purely psychiatric medical disabilities, or from disabilities which are often harder to “objectively” justify (e.g., Fibromyalgia, Chronic Fatigue Syndrome, etc.) have a greater chance because of the bold legal opinion as expressed by the Court in Vanieken-Ryals.

This is a landmark case of incalculable importance and impact, which cannot be overemphasized. I have already cited the case on numerous occasions at the MSPB level, and the fact that it is a Court of Appeals decision makes it binding upon all MSPB judges. It gives greater hope for those who suffer from Psychiatric Disabilities alone, that their cases will not somehow be looked upon with less chance of approval than a person with a physical medical condition.

Other case updates: While Vanieken-Ryals was not a case that I represented, there are some case-updates from my own files which may be of some interest to my readers. All information provided is already in the public record of the written Opinion of the Judges, and there is no information revealed here that violates my attorney-client confidentiality. I wish that I could claim that I win all of my cases; I cannot. However, it is my firm belief that persistence in the pursuit of a client’s disability retirement application is never a lost cause, and here are three cases which reinforce my philosophy:

1. Tucker v. OPM (DA-844E-07-0314-I-1) The Office of Personnel Management kept denying Ms. Tucker’s disability retirement application. This case was finally won at the Hearing level. However, the Office of Personnel Management filed a Petition for Review. I responded with — among other arguments — the fact that the Office of Personnel Management failed to make any legal arguments showing that the Hearing Judge committed any legal errors. The Full Board rejected OPM’s Petition and affirmed the decision in my favor. No further appeals have been filed. I am happy for my client that after so many years, she will now get her disability retirement. Persistence in rebutting OPM’s attempt to reverse a Hearing Judge’s decision is never a lost cause.

2. Hartsock-Shaw v. OPM (PH-844E-06-0658-I-1) This one is the converse of the previous one, in that the Hearing Judge initially affirmed OPM’s denial of my client’s disability retirement application. I filed a Petition for Review, because I believed the Judge was wrong in not applying the Bruner Presumption in this case. The Full Board vacated the Initial Decision and Remanded the case back to the Hearing Judge, requiring further testimony on the issue of whether the Bruner Presumption should have been applied. We were able to factually prove that the circumstantial evidence necessitated the finding that my client was removed for her medical inability to perform her job, even though there was no final letter of removal issued by the Postal Service that we could find. The Judge sided with us, reversed her prior decision, and granted my client her disability retirement benefits. Persistence paid, and persistence in the pursuit of a disability retirement claim is never a lost cause.

3. Heiter v. OPM (AT-0831-07-0435-I-1) This is an interesting case. It has to do with a client who lost his disability retirement benefits because he tried to go to work for Federal Express. He was being punished for trying. One would think that a disability retirement annuitant would be commended and praised for trying — but, no, because he applied for, got the job with, and then quit, a job with Federal Express, he was deemed to have been ‘less than honest’ for having retired on disability from a Postal Job, and therefore OPM cut off his disability retirement benefits. We went to Hearing on the matter; the doctor testified unequivocally that he couldn’t do the job — neither the Federal Express one nor his prior Postal job — but he couldn’t fault his patient for having tried. OPM made a big deal about the fact that my client periodically went bowling. The Judge ruled in OPM’s favor. I filed a Petition for Full Review. The Board reversed the Initial Decision, and reinstated my client’s disability retirement annuity.

Here again, persistence pays, and persistence in pursuit of a disability claim is never a lost cause.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. In pursuing one‘s entitlement to disability retirement benefits, one must always take the long-term perspective, and pursue that right with aggressiveness and persistence. It is an investment for one‘s future, and it is important to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways:

• View my website at www.FederalDisabilityLawyer.com
• Email me at federal.lawyer@yahoo.com
• Call me at 1-800-990-7932

 

Sincerely,

Robert R. McGill, Esquire