Is there a correlation between cleverness and the want of one to talk about one’s self?  Does the fox not puff himself up incessantly, and with the slyness of his reputation, disarm the opponent, the enemy, or the target of his feast for his evening meal?  Or the crow who craws without end; does he not speak of himself?  Yet, the cheetah, the quiet one who, when he walks slowly past a potentially prey, neither speaks nor needs to speak.  For the quiet of his strength need not be spoken of; the strength of his ferocity need not be stated in words; and the swiftness of its ability to kill – one merely shudders with quietude and respect.  For there is no “I” for a cheetah; only a trailing blur and the salty smell of sweat that comes only from fear.  

                                                            -- From The Personhood of the I

 Federal and Postal Disability Retirement:  SF 3112A (7/20/2010)

      The central focus of preparing a Federal Disability Retirement application under FERS or CSRS is the Applicant’s Statement of Disability – the Standard Form 3112A.  All applicants who are filing for Federal Disability Retirement benefits must complete this form – regardless of whether one is under FERS or CSRS.  It is a daunting, foreboding (and some would say, forbidding) form.  People approach this form with fear and loathing, and for very good reasons:  It requires the applicant to discuss the most personal aspects of the case:  one’s medical condition and the impact of one’s medical conditions upon one’s job.

      To a large extent, the SF 3112A is the crux and the crucible of a Federal Disability Retirement application.  It is where the focus of debate will center upon, for it is precisely the forum where the applicant is making the claim that he or she is entitled and eligible for Federal Disability Retirement benefits under FERS or CSRS.  If you imagine a large exhibit with multiple ‘boxes’ to show how various entities are related to each other, the SF 3112A would be the largest box, and the one in the epicenter – with all other boxes pointing to the centrality of SF 3112A.  For, all of the other submissions – from the Supervisor’s Statement (SF 3112B) to the Agency Certification of Reassignment and Accommodation Efforts (SF 3112D); to the Application for Immediate Retirement, Schedules A, B & C, and all of the other “forms” – all of them either attack, defend, or support the SF 3112A in one way or another.

      If the SF 3112A appears intimidating, it is written in a way where it is obviously meant to be that way.  Question 4 asks the Applicant to “fully describe” one’s diseases and injuries, and then immediately follows with a warning:  “We consider only the diseases and/or injuries you discuss in this application.”  Thus, at the outset, the Office of Personnel Management is requiring of the Applicant two (2) things:  (1) That you discuss any and all of the most personal medical information, with the open-ended imperative that you must “fully” describe your medical conditions, and (2) a clear warning that if you omit something, then such an omission may be disallowed (implying that it may endanger the entirety of the Federal Disability Retirement application).  The natural inclination in response to Block 4 of SF 3112A, of course, is to list every medical condition ever suffered, from the beginning of time to the unforeseen future.  To approach this question in such a methodology (or lack thereof), would be a mistake; and further, it may be counterproductive.  For, if the Office of Personnel Management approves a Federal Disability Retirement application based upon a secondary medical condition which may be neither permanent nor of long duration, then if later an approved annuitant is requested to fill out a Medical Questionnaire for an updated status of his or her medical condition – well, you can guess what may happen.   

      Next, in Block 5 of SF 3112A, Applicant’s Statement of Disability – it asks the applicant to describe how the particular disease or injury (discussed and described in the previous block) “interferes” with the performance of one’s duties, attendance or conduct.  Now, the concept of “interferes” is a rather “softened” statement of the law.  And that is one of the problems with Block 5 of SF 3112A – it gives no guidance as to the requirements of the law. For instance, in the prevailing and longstanding law on the matter, as stated in Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals for the Federal Circuit set the applicable standard for disability retirement determinations, stating that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.”

      Thus, the language under the law provides a much “harsher” standard in comparison to the language contained in SF 3112A – as well as a more “expansive” criteria for eligibility.  The term “deficiency” provides a clearer guideline as to what needs to be discussed when bridging the two primary conceptual entities:  one’s medical conditions, and one’s job.  Compare that with the nebulous word, “interferes”, as if mere interruption or temporary influence of one’s medical conditions upon one’s ability to perform one’s job, is enough to meet the eligibility criteria for Federal Disability Retirement benefits.  Don’t allow for the language to disarm you; “interfere” is not the legal criteria to be followed.

      Furthermore, Bruner expands the definitional criteria of eligibility for Federal Disability Retirement benefits by introducing the concept of “incompatibility” with either “useful service” or “retention” in the position – a concept which is nowhere contained in the word “interferes”.   And, indeed, Bruner is a 1993 U.S. Court of Appeals for the Federal Circuit case.  There are many, many cases which have come after Bruner, which further refine and somewhat expand the definitional foundation of eligibility and entitlement to Federal Disability Retirement benefits.  For, what Bruner is saying, in effect, is:  Even if you don’t have any service deficiency with respect to performance, even if you don’t have any service deficiency with respect to conduct, and even if you don’t have any service deficiency with respect to attendance – you may still be eligible for Federal Disability Retirement benefits under FERS or CSRS if it can be shown that your medical condition is “incompatible” with either useful service or retention in the position.

    And isn’t this the crux and crucible for most Federal Employees?  Don’t most of you work yourselves raw until you are no longer able to work, anymore?   Such loyalty results in the self-defeating evidence when it comes to filing for Federal Disability Retirement benefits, and further, when you are completing SF 3112A:  the Federal or Postal employee has an excellent record of attendance; the performance reviews are outstanding; and there are no conduct issues.  Thus, when one begins to fill out Block 5 of SF 3112A, Applicant’s Statement of Disability – just after it asks the potential applicant to describe one’s diseases and injuries --  how can one argue about how those medical conditions “interfere” with the performance of one’s duties, attendance or conduct? 

      And so the person – that discouraged Federal or Postal employee who can barely get up in the morning to be dragged out of bed --   puts aside the Federal Disability Retirement application because he or she has made a determination of ineligibility.  You have just done the work for the Office of Personnel Management.  All because a form carefully chose the word, “interferes”.

      Remember that words are chosen carefully – whether by an individual, a group, or an Agency.  But carefully chosen words rarely comprise the “full story”, and this is certainly the case when completing the SF 3112A in preparing a Federal Disability Retirement application.  The “full story” must always embrace the full expanse of the law, and for that, one should consult with, and obtain the advice of an attorney who is knowledgeable about Federal Disability Retirement law.  

Federal Disability Retirement under FERS or CSRS: Understanding the Different Perspectives and Differing Interests (5/15/2010)

 As with most things in life, attempting to secure a Federal Disability Retirement annuity under FERS or CSRS requires an extraordinary amount of time, effort, planning, and the collection, formulation and coordination of a compendium of information. Multiple questions arise at the early stages of planning: Can I live on 60% of the average of one’s highest-3 consecutive years of salary for the first year, then upon the second and subsequent years at 40% (planning stage)? Will my doctor support me (collection of information stage)? How must it be stated, and what must be stated, on the Applicant’s Statement of Disability (Standard Form 3112A, both for FERS & CSRS) (formulation stage)? How do I get the doctor to cooperate, make sure my Supervisor does his or her portion, and who fills out the Agency Certification of Reassignment and Accommodation Efforts (SF 3112D) (coordination stage)? And these are just a small fraction of the questions one needs to ask in preparing to file for Federal Disability Retirement benefits.

Before engaging in the minutiae of preparing an application for Federal Disability Retirement, it is often a good idea to take a macro-perspective of the process as a whole.

What a potential applicant for Federal Disability Retirement needs to understand, at a minimum, are the varying perspectives of (potentially) differing interests involved in the totality of the process of this “thing” called Federal Disability Retirement under FERS or CSRS. The four (4) main interests involved are: (1) The individual applicant who will be filing for Federal Disability Retirement benefits; (2) The Agency for which the applicant works; (3) The Doctor who is treating the applicant who is contemplating filing for Federal Disability Retirement benefits; and (4) The Office of Personnel Management. The key to success in filing and winning an approval is to recognize the different perspectives of each of the four main interests, to coordinate the differing interests, and then to formulate a plan to garner the proper support from each.

Thus, let us take each interest in the order listed:

1. The individual applicant who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS. Whether because of medical conditions which have impacted the physical body – from Cervical, Lumbar or Thoracic degenerative diseases, or Shoulder Impingement Syndrome; Lupus; Multiple Sclerosis; Parkinson’s Disease; Carpal Tunnel Syndrome; Plantar Fasciitis; Multiple Chemical Sensitivity (including allergies); Fibromyalgia; Chronic Fatigue Syndrome; Migraine headaches; or a host of other medical conditions not listed (this is not intended to be an exhaustive list, by any stretch of the imagination) – to Psychiatric diagnoses of Major Depression, Generalized Anxiety Disorder; panic attacks, Agoraphobia; Obsessive-Compulsive Disorder; ADD or ADHD; Autism Spectrum Disorders (including Asperger’s); Post Traumatic Stress Disorder, etc. (again, this list is not meant to be exhaustive), the important point is to know that the individual has come to a stage in his or her life where a medical disability has become so intractable, despite surgery, physical therapy, medication regimens; psychotropic medications; psychotherapeutic intervention; and multiple other reasonable modalities of treatments – all of which have been merely temporary and palliative in nature; but work is and has been suffering; and the individual cannot perform one or more of the essential elements of the job, and the medical condition is expected to last for a minimum of 12 months. The time has come to file. Work and career have been a major part of one’s life, and it is difficult to come to acknowledge the reality that such work cannot be performed anymore, and the years invested with an Agency must come to an end. This is where “quality of life” issues become important: Am I coming home each day just to recuperate to make it to work for another day? Am I using up so much LWOP that my performance is suffering? Am I in danger of being placed on a PIP? Is my Agency thinking about terminating me? Before it reaches a critical point, it is important to begin planning; and the first step in planning is to acknowledge bluntly and forthrightly, that the time has come to file for Federal Disability Retirement under FERS or CSRS.

2. The Agency for which the applicant works. Agencies are strange organic entities. They reflect, on a microcosmic scale, the people at all levels who work for the Agency. Don’t ever expect that loyalty is a bilateral avenue – it is not. Your loyalty for twenty years to an Agency will not be remembered on the day you start to impede the mission of the Agency. An employee’s loyalty to an Agency is rewarded only to the extent that the level of performance reflects positively upon the immediate Supervisor. Once the performance level begins to falter, the true avenue of loyalty reveals itself: it is a unilateral avenue. Your years of loyalty are forgotten. Is there a solution to this problem? To some extent; by persuading those who are open to persuasion, that the applicant for Federal Disability Retirement benefits and the Agency have a common goal: the Agency wants the vacant position which the applicant presently fills; the applicant wants to secure his or her financial security by obtaining Federal Disability Retirement benefits. Thus, the emphasis upon the commonality of goals can result in a positive result which is beneficial to both parties.

3. The Doctor who is treating the applicant. He or she is the critical linchpin of the case, and to garner the support of the most valuable resource in a Federal Disability Retirement case is essential. By his or her very nature, the doctor hates such administrative details of the job. To be asked to write a medical narrative report is anathema to the very essence of who a doctor is. A doctor is trained to treat patients. The administrative headaches of writing a convincing, excellent narrative report is the last thing that a doctor wants to do. It is therefore critically important to explain to the doctor, in clear and concise terms, the nature of Federal Disability Retirement; how it differs from Social Security or Worker’s Comp; what elements and issues need to be addressed in the narrative report; and why helping to obtain Federal Disability Retirement benefits is in the best interests of the patient.

4. The Office of Personnel Management. This is the toughest out of the four. This is the Agency which receives and reviews all Federal Disability Retirement applications under FERS or CSRS. They apply the legal criteria in determining whether or not the applicant qualifies. Not everyone who makes a decision is fully informed of the governing laws, and so it is imperative that an Application for Federal Disability Retirement is well-formulated, concisely written, descriptively delineated, and supported by credible medical documentation. The Office of Personnel Management (OPM) will never meet you; you are a faceless entity with merely a paper trail. As such, the paper submission must be convincing, persuasive, and meet the burden of proof by a preponderance of the evidence.

A successful Federal Disability Retirement application under FERS or CSRS, submitted to the Office of Personnel Management, must take into account all of the four (4) interests described above, and coordinate them, taking into account the differing perspectives which will often involve seemingly opposing interests. It is the ability to garner the support of each, to coordinate and extrapolate the advantages from each, and to compile, formulate, and prepare an excellent presentation which will have a high chance of being approved by the Office of Personnel Management. This is where one might consider the “5th” entity – that of an Attorney who specializes in Federal Disability Retirement laws. It is a consideration worth pursuing, especially because it concerns the future financial security of a Federal or Postal employee which we are speaking about – you.

       If a word can mean more than one thing, must it have an equal number of corresponding objects in the world in order for the word to be real?  Must each word correspond to something in “the world” in order for the word to have any meaning?  If a word has no corresponding reference to the “real world”, is it really a word, or merely  made-up nonsense, without meaning, like Bertrand Russell’s clever and mischievous statement, “The present king of France is bald”.  Since there is no king of France, can it make any sense that the statement refers to baldness without an existing king?  Yet, we know the meaning; and so perhaps words can be nonsense while having meaning.      --  From Philosophical Conundrums

 FERS & CSRS Disability Retirement Benefits:  The Difference between ‘Accommodation’ used in a General Sense, and in a Legal Sense

      When a Federal or Postal employee files an application for Federal Disability Retirement benefits under FERS or CSRS, one of the many issues immediately introduced, and which must be confronted, is the legal issue of “accommodation”.  The fact that you can show that a medical condition prevents you from performing one or more of the essential elements of your job, is merely the first step in proving eligibility for Federal Disability Retirement benefits.  Can the Agency ‘accommodate’ the individual’s medical condition?  Is the action initiated by the Agency a legally viable ‘accommodation’ such that it can prevent eligibility for disability retirement benefits?  Or, as in most cases, are the actions merely ‘accommodating’ measures which do not rise to the level of a ‘legal accommodation’? 

     The prevailing Court cases which govern the issue of accommodations in Federal Disability Retirement law continues to be the United States Court of Appeals for the Federal Circuit case, Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001) (and its companion case, which extended the same concept to FERS employees, in Marino v. OPM, 243 F.3d 1375 (Fed. Cir. 2001) ).  The impact of Bracey and Marino have been previously discussed in other articles; for purposes of the present discussion, it is sufficient to point out that both cases essentially stand for the legal proposition that an agency cannot prevent a Federal or Postal employee from being eligible for Federal Disability Retirement benefits "by assigning an injured employee to an ad hoc set of light duties as long as it continues to pay the employee at the same level as before". (Bracey, 236 F.3d 1356, at p. 1362)  This is the clearest way of understanding the distinction between the ‘legal’ sense of the term ‘accommodation’, and the ‘general’ sense of the term.

     In the general sense of the term, an Agency’s efforts to accommodate a Federal or Postal employee in the workplace are indeed a laudable goal and mission.  Don’t misunderstand the import of what the Court in Bracey stated:  if an Agency wants to retain a valued employee, there is nothing wrong, nefarious or improper with assigning an injured employee an ad hoc set of light duties, and continue to pay the employee at the same level as before.  The primary issue is whether or not assigning such an ad hoc set of duties will preclude and prevent one from filing for, and obtaining, Federal Disability Retirement benefits from the Office of Personnel Management.  The answer can be found in the manner in which the U.S. Merit System Protection Board interprets the Bracey and Marino cases. 

     A true test and application of the distinction between the ‘legal’ sense of the term, and the ‘general’ sense of the term, can be seen in the case of Selby v. OPM, Docket #SF-844E-05-0118-I-1 (June 9, 2006).  This is an especially interesting case because of the factual setting, and the legal application of the principles espoused in Bracey and Marino.   The factual setting of this case is interesting for a number of reasons:  First, the “unrebutted evidence shows that the light-duty assignments performed by the appellant bore no relation to the essential duties of his official position,” thereby fitting nicely into the Bracey view concerning “ad hoc” duties; Second, the appellant was only working 6 hours per day, and performed many clerical duties (which clearly were not part of his position description as a Tool Room Mechanic), and received two hours of OWCP compensation per day; and Third, the appellant filed for Federal Disability Retirement benefits after he had been separated from Federal Service pursuant to a reduction-in-force (RIF).  In other words, this is a case which, as a factual paradigm, would test the applicability of Bracey and Marino, because it shows that the appellant:  (A) continued to work in his “position”; (B) was “accommodated” (in the general sense, not the legal sense) by his Agency, and (C) did not even file for disability retirement because of his medical condition (he had been working in his light-duty position since 1986, and did not get a RIF until August, 2003), but rather, he filed for Federal Disability Retirement benefits because he had been separated from Federal Service pursuant to a RIF. 

     The Merit System Protection Board sided with the Appellant, and upheld the Administrative Judge’s decision that the Appellant was entitled to disability retirement benefits.  What is especially interesting is that the dissenting Judge in this case argued that it wasn’t “logical” that the appellant should be deemed “disabled,” since he was able to work all of those years up until the time he was separated because his job was terminated (the decision was a 2 – 1 decision in favor of granting disability retirement benefits).  But this is not an issue of logic; rather, it is an issue of applying the precedential case of Bracey and Marino, and following what the law demands by the higher and authoritative U.S. Court of Appeals for the Federal Circuit.  The concept of being “disabled” must be understood in the narrow and legal sense of the term when applying it within the purview of Federal Disability Retirement laws. “Disabled” means that one is unable to perform one or more of the essential elements of one’s job – not whether he couldn’t do any job at all.  Clearly, from 1986 until his separation from Federal Service in 2003, the appellant was working – but working how?   He was working in a light-duty position; he was working only 6 hours per day; and he was receiving 2 hours of OWCP compensation per day.  This last fact should not be misunderstood as to its import and significance, for the MSPB itself emphasized this very point:  “The fact that he (the appellant) was receiving two hours of workers compensation a day also buttresses his claim that his injuries prevented him from performing many of the critical elements of his position.” 

     Part of being able to perform the essential elements of one’s position, is to be able to perform the full panoply of the position – including the full 8 hours of work required.  The issue here is not whether or not the Appellant was “disabled”; the issue is whether the Appellant was disabled from one or more of the essential elements of his job.  Further, what one must understand – and what the factual scenario of Selby v. OPM clearly shows -- is that the Appellant, Mr. Selby, could have filed for disability retirement benefits at any time during the period from 1986 – August, 2003, as well as for up to one year after being separated from Federal Service.  It was laudable that Mr. Selby’s Agency allowed him to work in a light-duty capacity; it was laudable that Mr. Selby continued to work from 1986 until his separation from Federal Service in 2003, and was willing to do all sorts of ad hoc jobs, duties and tasks.  None of this, however, prevented him from being continuously eligible for Federal Disability Retirement benefits.

     As the two Administrative Judges in Selby v. OPM stated, “Where, as here, an employee is given a light-duty assignment that does not enable him to continue performing the critical or essential elements of his official position, Bracey compels a finding that he has not been afforded an accommodation disqualifying his entitlement to a disability annuity.”  The term and concept of “accommodation” has a narrow, specific meaning when used in the context of Federal Disability Retirements laws under FERS & CSRS.  There is also a more general, non-legal use of the term, but every Federal and Postal employee who is considering filing for Federal Disability Retirement benefits must understand the distinction between the two.  The meaning of a word is important in determining its significance within the proper context and use of the term.  Here, the term “accommodation” has a specific meaning within a narrow context.  Know the term, within the proper context, in order to understand the use of the term.  Otherwise, one’s lack of knowledge may be to the detriment of being eligible for Federal or Postal Disability Retirement benefits.  

Federal Disability Retirement:  The Full Arsenal of Weapons (2/2/10)
 

    When a Federal or Postal Employee decides to file for Federal Disability Retirement benefits, he or she is confronted with a compendium of “Standard Forms” – from SF 3107 (2801 for CSRS employees), to the 3112 series (for both CSRS & FERS employees).  The initial reaction in confronting the multiplicity of forms is usually an admixture of anxiety, puzzlement, disbelief, confusion, and concern.  Indeed, it is understandable that individuals filing for medical disability retirement will often feel overwhelmed by the need to answer questions which – depending upon what information is provided, and how it is characterized – will determine the outcome of a Federal Disability Retirement application.

     Furthermore, while the completion of the Standard Forms themselves comprise an essential element of the Federal Disability Retirement packet, it is merely one element.  The forms themselves merely provide:
 

• Basic personal and professional information
• The Applicant’s Statement of disability and a description of how the disability has impacted his or her ability/inability to perform the essential elements of one’s job
• Supervisor’s Statement – a supervisor’s assessment of the employee’s performance, and any impact seen upon the Agency’s operation and mission
• The Agency’s statement – whether an accommodation was attempted or even possible; whether reassignment was attempted or even possible; etc.
• Medical documentation as an attachment, which should support the Applicant’s Statement and rebut any contrary perspective provided by the Agency
• Addressing of other issues – of spousal survivor annuity, life insurance, health insurance, etc.

      Beyond the Standard Forms, however, there is a need by the applicant to recognize that an effective Disability Retirement application is surrounded by a plethora of statutes, case-law holdings (Legal Opinions rendered by Administrative Law Judges at the Merit Systems Protection Board, by the Federal Circuit Court of Appeals, and other legal jurisdictional forums), and persuasive peripheral elements.  These comprise the “full arsenal of weapons” which, depending upon each individual case, need to be utilized in the proper tailoring and customization of a particular case, depending upon the unique facts and medical circumstances of the case.  Some of the “arsenal of weapons” which can be used, may include the following (and this is by no means an exhaustive list, but a minor sampling):
 

• A Social Security Disability determination.  In the rare instance when the Social Security Administration renders a decision prior to a FERS or CSRS-Offset Disability Retirement application, what should be done?  What legal arguments should be used?
• If your Agency is contemplating termination, what should you do?  Can you, or should you, attempt to influence the basis of the termination?
• If your Agency has proposed termination, what should you do?
• If your Agency has already terminated you, but did not delineate any medical basis, should an appeal be filed with the Merit Systems Protection Board?
• Should an adverse Supervisor’s Statement be contested in any way?
• Does the Bruner Presumption apply in the case?
• Even if the Bruner Presumption does not directly apply, should the principles underlying the case of Bruner v. OPM be argued?
• Does it matter how the Agency completes the SF 3112D?
• Can medical evidence obtained after termination be used to apply for Disability Retirement benefits under the principles delineated in Reilly v. OPM?
• What should you do if the Office of Personnel Management tries to diminish your medical evidence based upon the fact that your doctor’s opinion relies upon “subjective” evidence, as opposed to “objective” medical evidence?
• When is it appropriate to argue the principles espoused in Vanieken-Ryals v. OPM?

      These are just a small slice of the larger arsenal of weapons – legal, procedural, and substantive – which can be used, and should be used, when it is appropriate.  And appropriateness is determined by the individual tailoring needs of each particular case, based upon the unique facts and circumstances, the medical conditions, the impact of such medical conditions upon the particular kind of job one engages in, etc.  This is why an attorney who is experienced in Federal Disability Retirement Law can be of assistance – based upon the attorney’s experience, legal knowledge, and discretionary judgment as to the needs of each case.  Like the mouse, the cat and the dog who knew not what weapon lay in the arsenal of the barn, a Federal Disability Retirement applicant should not enter into the fray without knowing which weapons to use, and how to use them.

For more information, contact me in one of these ways:
    * View my Postal Workers blog at http://USPSdisabilityRetirement.com

       Federal Disability Retirement and the Postal Employee Today

    * Email me at federal.lawyer@yahoo.com

    * Call me at 1-800-990-7932
 

Sincerely,
 

Robert R. McGill, Esquire

     I receive telephone calls weekly by Federal and Postal employees who are scared, confused, concerned and puzzled by the maze of information, the conflicting (or apparently conflicting) nature of the vast amount of information “out there” in the world of the Internet.  The Internet is a wonderful arena of information; information, properly understood and verified for accuracy, can lead to proper choices being made.  Too much information, on the other hand, can lead one to confusion and an inability to make the “right” choices.  Extrapolating from this vast universe of information, this Article is meant to provide some meaningful guidance for the Federal and Postal employee considering filing for Federal Disability Retirement benefits under CSRS or FERS.
 

     In order to clarify some of the maze of confusion, the following will attempt to somewhat systematically categorize the cornucopia of information out there.  Like the fawn in the fable, it is important to resist being frozen by the vastness of the information “out there”, and to simplify the information into compartments of understandable portions: 
 

      1.  If it is merely a matter of money – i.e., the highest income, without regard to other issues – and the Federal or Postal employee suffers a partial or total disability as a result of an injury incurred at work, then the Federal Employee’s Compensation Act

(FECA), (otherwise known as “Federal Workers Compensation”, or OWCP or Department of Labor/OWCP) is the path to follow.  However, you must understand that FECA is not a retirement system.  This concept is an important one to ponder and follow to its logical conclusion.  Because it is not a retirement system, it is instead a system in which an injured Federal or Postal employee is compensated for, during the time of disability, with a view towards returning the Federal or Postal employee back to work.  As such, as part of its “program”, benefits consist of cash compensation equaling two-thirds of lost earning capacity if the Federal or Postal Worker has no dependents, or three-fourths of lost earning capacity if the worker has dependents.  Thus, a Federal or Postal Worker with a dependent would be receiving 75% of one’s gross salary, and that is indeed an attractive benefit. On top of it all, FECA benefits are not subject to income taxes.  Again, this is a good benefit if it is merely a matter of money and, I would add, if the medical condition & injury appears to be of a temporary nature.  
 

      2.  FECA (OWCP/Federal Workers Compensation) covers Federal and Postal Employees immediately upon employment.  It does not have the legal criteria, as is the case under FERS & CSRS disability retirement, of meeting minimum eligibility requirements of a certain number of years of Federal Service (for CSRS, 5 years – which, if one pauses and thinks about it, anyone who is under CSRS should already meet that requirement; for FERS, a minimum of 18 months of Federal Service).  Thus, for the Federal or Postal employee who walks into his Federal Office Building on the first (or 10 thousandth) day of work, slips and breaks a leg, FECA is probably a good Federal benefit to file for.  But FECA does not just pay cash compensation – it also provides for payment of medical expenses related to the work-related illness or injury, as well as “vocational rehabilitation assistance” and “payment for attendant care services”.  These other “benefits” are where the problems arise; for, anyone who has been under the thumb of FECA is well-aware of the multiple and oppressive problems:  From getting approval for a diagnostic test or surgery; to having the Vocational Rehab Nurse sitting in on the doctor-patient appointment; to sending the Federal or Postal employee to a Second-opinion doctor (or a “referee” Third opinion doctor) who miraculously declares that there is nothing wrong with the employee, and he or she may “return to full duty”.
 

      3.  FERS and CSRS disability retirement benefits have the overall advantage for any Federal or Postal Employee who has a minimum of 18 months of Federal Service (for FERS employees) or 5 years (for CSRS employees), who realize that the medical disability that one has, is impacting the ability to perform one or more of the essential elements of one’s job; that the medical condition will last for a minimum of 12 months; and most importantly, that the future requires that one thinks not only about the present financial compensation, but about one’s future employment, future potential earnings, and future potential benefits.  Thus, FECA payments should normally be looked at as a temporary benefit for a limited duration of time, in order to medically recover to go back to work.  That is certainly how OWCP views it.  Of course, if you are receiving FECA payments, you may also apply for Federal Disability Retirement benefits under FERS & CSRS, and then elect to stay on OWCP, and keep the approved FERS or CSRS disability retirement benefits “in limbo”; and, technically, one may switch back and forth between the two – although, as a practical matter, the headaches inherent in attempting to do so are more prohibitive than the regulations would make you think.
 

      4.  Remember that FERS and CSRS disability retirement benefits are just that – they are retirement benefits.  Just as there are logical consequences for staying under a non-retirement benefit such as FECA (such as being compelled to undergo vocational rehabilitation in order to place you in a job --  any job  -- in order to get you “back to work”; or being sent to a Second or Third Opinion doctor for determination of your medical condition), there are logical advantages to being medically “retired” under OPM disability retirement.  Such logical advantages include:  being able to work in some other capacity and earning up to 80% of what your former Federal or Postal position currently pays; receiving Cost of Living Adjustments after the first 12 months; not being subjected to the onerous FECA rules and regulations; having your years on Federal Disability Retirement count towards your total number of years of Federal Service, which is important when your Federal Disability Retirement benefit gets recalculated as “regular retirement” when you turn age 62; being able to live in retirement, yet to pursue a second career; and other benefits.  Of course, under FERS, the Federal or Postal Employee who files for Federal Disability Retirement benefits must also file for Social Security Disability benefits, also.  This, because the Federal Government wants to determine whether you qualify not only as an individual medically disabled from your particular Federal or Postal job, but further, from any gainful employment at all.  If it is found that you qualify under SSDI as well as under FERS disability retirement, then there is a coordinating offset of benefits – 100% offset in the first year, and 60% offset every year thereafter, until age 62.   
 

      5.  Do you actually want to get SSDI, as well as FERS Disability Retirement benefits?  Generally speaking, this question is normally a moot point, because most people who qualify for Federal Disability Retirement benefits under FERS do not concurrently qualify for Social Security Disability benefits (SSDI).  This is because SSDI has a “higher legal standard” – one of “total disability” from gainful employment, as opposed to being disabled from being able to perform one or more of the essential elements of one’s Federal or Postal job.  Here are the three essential rules (in my view) concerning SSDI:  First, you need to get a receipt showing you filed for SSDI at or before the time of approval of the Federal Disability Retirement application by the Office of Personnel Management; Second, if the SSDI application is denied, it will not impact your FERS Federal Disability Retirement application; Third, if your SSDI is approved, you need to inform the Office of Personnel Management as soon as possible, for two reasons:  One, the SSDI approval can legally help you get your FERS Disability Retirement application approved, and Two, because there is an offset of payments, OPM needs to be informed of the approval.
 

     The above compartments of information comprise only a miniscule fraction of the greater, macro-aggregate of information “out there”.  For instance, I have not even touched upon the issue of SSDI ceilings of earned income; of what happens when an individual reaches “Substantial Gainful Activity” (SGA); of the advantage of filing for a Scheduled Award while switching over to OPM Federal Disability Retirement benefits (because a Scheduled Award can be received from FECA concurrently with OPM disability retirement benefits); and further, the entire impact of the National Reassessment Program (NRP) implemented by the U.S. Postal Service to essentially throw everyone who is not “fully productive” in his or her craft back onto OWCP roles, and whether or not OWCP will automatically respond by reinstituting compensatory benefits (not very likely to be “automatic”), and what this means for the Postal employee who should certainly consider filing for Federal Disability Retirement benefits under FERS; or the Federal Employee who works for the FAA and loses his or her medical certification – does this automatically insure that one is eligible for Federal Disability Retirement benefits (answer:  No it does not); or the vast and multitudinous issues that surround the universe of medical conditions, the Federal or Postal Employee, FECA, FERS & CSRS.
 

     The world is indeed a complex place, with complex issues and a vast universe of information.  The key to all of this is to resist acting like the fawn in the fable – do not get mesmerized by the vast complexity of it all; instead, wade through the information, and consider consulting an attorney who is knowledgeable about the legal issues which impact your life.

1. often, health insurance is an issue, and while reinstatement of health insurance normally occurs upon approval of a disability retirement application, temporary loss of health insurance may lead to greater difficulty in obtaining proper medical documentation from one's treating doctors, and
2. doctors often show some trepidation in "relating back" medical conditions, supposing it to reflect negatively upon their medical integrity – often a byproduct of having been subjected to depositions or cross-examinations in other legal contexts. 

     I have written many articles on multiple issues, over the years, on laws and cases impacting upon Disability Retirement for FERS & CSRS employees of the Federal Service.  In response to my articles, I have received many inquiries about the “meaning” of this or that statement I made, in a particular article I had written, or in an explanatory statement I made.  Often, I am surprised by the question posed, which prompts me to ask myself:  Did I write so badly?  Did I fail to explain myself adequately?  Or did the reader misunderstand what I had written?
 

     The truth is probably a combination of both – that I failed to write clearly and concisely, and the reader (as a non-lawyer) failed to fully understand what I meant to convey.  This article is meant, on a microcosmic level, to explain some small part of the law, and to interpret the language of a case, in order to help the non-lawyer somewhat understand how to read into legal language.
 

     In the past, I have often referred to the benefit of securing the “Bruner Presumption” in a case.  The “Bruner Presumption” is so named from a Federal Circuit Court case, Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993).  It essentially stands for the proposition that, if a Federal employee under FERS or CSRS is removed for his or her medical inability to perform the duties of his or her position, that such a specified removal constitutes “prima facie” evidence of entitlement to disability retirement.  Now, one might interpret this to mean that, because “prima facie” means “on the face of it”, that nothing further needs to be done.  Disability retirement is a “sure thing”.  Nothing could be further from the truth.  For, in the same breath that the Merit Systems Protection Board speaks about the Bruner Presumption, the following statement will also always appear:  “Notwithstanding the shifting burdens of production, however, the appellant retains the burden of persuasion at all times.” Trevan v. OPM, 69 F.3d 520 (Fed. Cir. 1995).  What this means is that, regardless of the Bruner Presumption, the appellant always has to provide the underlying medical documentation to show that he or she was unable to perform the essential elements of his or her job.
 

     Now, to the above, one might ask:  Then, what is the purpose of the Bruner Presumption?  The purpose is essentially to raise a higher bar against the Office of Personnel Management.  Think about it this way:  at an MSPB Hearing, the Office of Personnel Management has a right to cross-examine witnesses, have the Supervisor testify over the telephone, etc., to rebut the Bruner Presumption.  In order to fight against this, the Applicant must present strong medical evidence anyway, to ensure that the Judge is persuaded of your medical disability.   
 

     So, is the Bruner Presumption of any use?  The short answer is:  Yes.  It makes any effort by the Office of Personnel Management to undermine or attack the employee’s disability retirement application much, much harder.  Is the Bruner Presumption necessary?  No.  Most people don’t need it, precisely because, so long as an individual has a supportive doctor who will provide the necessary nexus between one’s medical condition and one’s positional duties,  there is normally no need for that “higher bar” to fight against the Office of Personnel Management.
 

     Beyond this, of course, is the question of how one obtains the Bruner Presumption.  The obvious answer is to be removed for one’s “medical inability to perform” one’s job.  However, most Agency removal actions are not so cooperative, and that is where people get into trouble. For instance, what if a person is removed for being excessively absent, and those absences are as a result of one’s medical conditions?  Shouldn’t the Bruner Presumption apply in that instance?  One would think so, because of the logical connection which should be able to be established.  Unfortunately, however, it is not that easy – logic and logical connections do not necessarily prevail in arguing for the Bruner Presumption before a Merit Systems Protection Board Administrative Law Judge.  Of course, an MSPB Administrative Judge is himself/herself constrained by legal precedents handed down by the Federal Circuit Courts and other MSPB cases handed down by the Full Board.  For instance, it has become established precedent that “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.”  Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002)   In other words, it is not enough that there exists concurrent medical documentation supporting – outside of the document proposing to remove you – that you had a medical condition; rather, the actual proposal to remove you must specify within the document of proposed removal a reference of a disabling medical condition.
 

     As you can see, the “arena of legal battles” can be a complex maze.  Lawyers who are familiar with Disability Retirement laws, statutes, procedures and cases, are able to (hopefully) maneuver around, through, and over the many legal landmines which present themselves as obstacles to a Federal or Postal employee who files for disability retirement benefits under FERS or CSRS.   
 

     Because Disability Retirement is an important benefit available to all Federal and Postal employees who have a minimum of 18 months of Federal Service (for FERS) and a minimum of 5 years for CSRS employees, it is crucial to know the governing laws, statutes, procedures and cases which impact an application. It is an important benefit which should be looked upon as an investment to attain a level of financial security, in the event that a Federal or Postal employee finds that he or she can no longer perform one or more of the essential elements of employment. I am an attorney who specializes in obtaining disability retirement benefits for Federal and Postal employees. To contact me, you may email me at federal.lawyer@yahoo.com, find me at www.federaldisabilitylawyer.com, or call me at 1-800-990-7932, to discuss the particulars of your case.

Sincerely,

 
Robert R. McGill, Esquire  

The Law is a web of words, understood by few, practiced by some, diversely impacting many, applying to all, and protecting a universal principle: an orderly society which ensures freedom. 

                                                -- Anonymous Lawyer

  Legal landmines in Federal Disability Retirement Law

      Law is an evolving process.  Statutes are merely the beginning point.  Thereafter, cases are tried before Judges, and the evolution of the law, within the context of a particular sector of law, begins to unfold.  As the evolution of law begins to unfold, the complexity of the legal process becomes more and more intricately intertwined.  A body of law develops, and grows.  Yes, to a great extent, lawyers create the complexities which grow within that body of law.  The intersecting and intertwining cases address multiple issues which have been “litigated” through the judicial process of putting on a case before a Judge.  For Disability Retirement issues, the body of law is created through the Hearing Process heard before an Administrative Judge at the Merit Systems Protection Board. 

     The complexities which develop over time become the potential “landmines” in any area of law.  For those Federal and Postal Employees who are considering applying for disability retirement benefits, such legal landmines must be carefully negotiated, maneuvered about, and where necessary, avoided.  There are many issues in the body of law involving disability retirement, and it is well to be aware of some of them.

     Here is a short compendium of some intertwining and intersecting issues, extracted from a recent, illustrative case, addressing just a small portion of the greater “body of law” comprising the Disability Retirement issues:

n       “Situational Disability” issues have always been a difficult landmine to negotiate around.  Often, Federal and Postal employees are subjected to multiple on-the-job stresses, from sexual harassment from predatory co-workers to supervisors with egocentric vendettas; from workloads and work hours consisting of unreasonable demands; and numerous other potential contexts which can be perceived and interpreted as potential “situational disability” scenarios.  In a recent case of Yoshimoto v. OPM, MSPB Docket No. DE-844E-07-0435-I-1 (June 5, 2008), interestingly enough, the origin of the Appellant’s medical/psychiatric disabilities stemmed from a long history of suffering a hostile work environment involving physical and verbal sexual harassment.  This type of situation can often defeat a disability retirement application, because it sends a “red flag” to OPM if the disability retirement application focuses upon this aspect of a case.  Now, in all fairness, from OPM’s perspective, allegations of a hostile work environment can rarely be confirmed or denied, unless there has been a judicial finding of facts in a separate legal forum.  Thus, OPM is often befuddled as to what to do with such allegations.  On the other hand, the reason why OPM will often deny cases which allege or focus upon medical conditions which arise within the context of a “hostile work environment” is because the Applicant is able to perform the actual functions of the particular job, absent the hostile work environment.  In other words, it becomes an issue of the work environment, and not the medical condition.  In this particular case, however, the MSPB, on a Petition for Review, found not only that the medical condition of the Appellant was so severe as to be incompatible with working in any Post Office setting – there was evidence that she could not hold any jobs outside of the Post Office, either.  Thus, the important point here was that the Appellant was able to prove that her psychiatric conditions had become much more than a “situational” condition limited to her particular hostile work environment – something that the Office of Personnel Management attempted to portray it as. 

n      Further, the case itself is illustrative of how the law evolves over time and impacts a case in multiple ways.  For instance, I have previously written (in articles, blogs and responses to specific questions) of the significance of the recent case of Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007).  In the Yoshimoto case, it is cited multiple times.  It is cited for purposes of refuting OPM’s persistent but unfounded assertions that psychiatric disabilities must be proven by “objective” methods (thereby propagating the mythical bifurcation between “subjective” and “objective” in psychiatric medical disabilities).  As the Board Members in Yoshimoto observed, the “absence of ‘objective’ measures or tests as described by OPM is not dispositive.”  Thus, legal landmines can take various forms:  the Office of Personnel Management can, and often does, mis-state the applicable law, and it is up to the Disability Retirement Applicant, along with his or her attorney, to know the law, point out the mis-statement or mis-application of the law to the OPM Representative, and not be fooled into thinking that merely because the Office of Personnel Management denies your case and makes statements and assertions which “sound legal”, that your case cannot be won.

n      The Board in Yoshimoto correctly stated the law, and rebuffed and refuted OPM’s multiple arguments, to include:  (A) The mere fact that the origin of one’s medical disabilities may be found in the job’s inherent stresses, or other factors, does not necessarily make it a “situational” disability.  Thus, the cause of the condition “is not relevant in determining whether an employee is eligible for disability retirement,” but further (B) it is instead “whether the condition prevents the employee from rendering useful and efficient service in her position.” (Citing Marucci v. Office of Personnel Management, 89 M.S.P.R. 442 (2001), as well as 5 C.F.R. Section 844.103(a) as relevant authorities).  Thus, OPM was trying to get by with multiple arguments to defeat this particular disability retirement application, and attempting to side-step the central one:  Did Ms. Yoshimoto’s medical conditions prevent her from performing one or more of the essential elements of her job, regardless of whether the origin and inception of the medical disabilities occurred as a result of her work-place hostilities?  OPM was obviously successful throughout the Initial Application Stage, the Reconsideration Stage, and even at the Hearing; it was only upon a Petition for Review of the Initial Decision that OPM’s denial of disability retirement benefits was finally overturned and rejected.

n      Of further interest is a peculiar statement made by the Board towards the end of the Yoshimoto case.  An issue which had been brought up concerned the fact that the Appellant had been denied benefits both by the Social Security Administration as well as by the Office of Worker’s Compensation Programs.  Now, I have always argued, and have been consistently successful in arguing, that a negative decision by either SSA or OWCP has no impact whatsoever upon a disability retirement application.  At the same time, however, I have argued that when an SSA case has been approved, it must be looked upon with mandated favor per Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), where the Federal Circuit Court found that in making a determination of eligibility for disability retirement under FERS, the Board must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability.   Here, however, the Board makes a peculiar statement.  In reading and interpreting Trevan, the Board stated:  “in considering a disability retirement application under FERS, OPM and the Board must consider an award of Social Security disability benefits, but may find that this evidence is outweighed by the medical evidence.”  This is the first time that I have seen a denial of SSA benefits being used as a “sword”, and the Board seems to give some credence and weight to that prospect.  We shall have to “wait and see” if such an argument is used in the future.

n      And, finally, the Board cites Suter v. Office of Personnel Management, 88 M.S.P.R. 80 (2001), for the proposition that “OWCP’s determination that an appellant does not qualify for compensation is not dispositive of the appellant’s rights under the disability retirement statutes,” and “OPM and the Board must consider an award or a termination of OWCP benefits, but may find that this evidence is outweighed by other medical evidence.”  Again, a negative OWCP determination is being used as a “sword”, whereas, normally, OWCP determinations have no impact upon disability retirement issues unless there has been an approval. 

     Disability Retirement Law involves a complexity of issues which cannot easily be understood or applied.  A review of the case of Yoshimoto is illustrative and instructive in how, within the span of a single case, multiple issues arise, any one of which can defeat a Federal Disability Retirement application. Disability Retirement is a benefit available to all Federal and Postal employees who have a minimum of 18 months of Federal Service (for FERS) and a minimum of 5 years for CSRS employees.  It is an important benefit which should be looked upon as an investment to attain a level of financial security, in the event that a Federal or Postal employee finds that he or she can no longer perform one or more of the essential elements of employment.  I am an attorney who specializes in obtaining disability retirement benefits for Federal and Postal employees.  To contact me, you may email me at federal.lawyer@yahoo.com or call me at 1-800-990-7932, to discuss the particulars of your case. 

Sincerely,

Robert R. McGill, Esquire

 -- The myth of the groundhog has long been lost, of how it was once the most beautiful creature in the kingdom, and all the animals knelt in awe and envy, until one day the groundhog, whose fidelity to a single mate for life was known far and wide, was subjected to the cruelest of crimes: his wife was kidnapped, and the ransom note read that she had been buried alive, and it was up to the husband to dig throughout the ends of the earth before the last suffocating breath of the fair lady would expire; and so the groundhog determined to dig, and dig, and dig, and to this day it continues in its perseverance and persistence, revealing the eternal love, fidelity, and search throughout the kingdom, for the love forever lost, but never forgotten.

-- From Stories Long Forgotten

 
    In Law, not only is persistence necessary (as well as being a virtue), it is necessary in order to prevail. It is always disheartening to go up against a governmental Agency; it is even harder when a person suffers from a medical condition which impacts one’s physical abilities, or perhaps one’s emotional or cognitive capabilities -- or both. The process of obtaining disability retirement under FERS or CSRS from the Office of Personnel Management is a long road -- at the Initial Application Stage, it will often take from 8 - 10 months. A thumbnail sketch of why it takes this long is as follows: first, obtaining the proper medical narratives and records; formulating the Applicant’s Statement of Disability; preparing a coordinating legal memorandum; filing through the Agency and obtaining the Supervisor’s Statement and other necessary forms completed; routing it through other channels until arrival at Boyers, PA; assignment of a CSA number – and finally to the Office of Personnel Management in Washington, D.C. Then, if it is denied at the Initial Stage, the right to Request Reconsideration; then, if it is denied at the Reconsideration Stage, the right to an appeal to the Merit Systems Protection Board (MSPB); then, even if the Applicant prevails at the MSPB Stage of the process, there is always the possibility that the Office of Personnel Management may file a Petition for Review with the full Board of the Merit Systems Protection Board.

    It is important when undertaking the process of filing for disability retirement, to be mentally prepared to go the distance. Part of the “distance” that a person must be prepared to undergo, is to be denied. Mentally, that is sometimes difficult to be prepared for. This is particularly true of a Disability Retirement Applicant, precisely because of the impending and onerous financial considerations – for a disability annuity can often mean the difference between financial security and financial ruination. And, indeed, an attorney who represents an Applicant for Disability Retirement can cushion the impact of a denial by mentally and emotionally preparing the applicant, by objectively assessing the chances of approval, and providing a wider perspective as to the legal and medical requirements necessary to get an approval at the next stage.

    What is disheartening to see, is when an individual almost went the full distance – but fell just short; as a result, a lifetime annuity was lost forever.

    This is precisely what appeared to happen in the recent Merit Systems Protection Board Case of Sylvia M. Reilly v. Office of Personnel Management, Docket No. DE-831E-07-0359-I-1, decided on March 14, 2008. In Reilly v. OPM, the Office of Personnel Management denied the disability retirement application of Ms. Reilly; it then denied her application again at the Reconsideration Stage – but she won the case before the Administrative Judge at the Merit Systems Protection Board. The problem, however, is that after winning at the MSPB level, the Office of Personnel Management then filed a Petition for Review (PFR) -- and the “appellant did not respond to the PFR” (at page 2 of the decision, emphasis added) Now, there are many issues which are discussed in the decision issued by the Board, including medical evidence showing disability after the Appellant’s date of resignation and medical notations that minimized the severity of her medical condition. However, it is clear why the Board’s decision is so one-sided – since nobody responded to the Petition for Review, and since nobody countered and refuted the statements of the representative from the Office of Personnel Management, there was nothing else that the Board could have done, except to accept the one-sided statements of OPM. Think about this logically: if you have 2 people debating an issue, and only one of them shows up, who wins the debate? The Full Board had no choice – and, indeed, they did what one would expect: the victory won at the Hearing level was reversed, and the disability retirement benefits that had been granted – after such a long and hard-fought battle – was lost.

    Persistence and Perseverance means one must stay in the battle throughout the entire process. To give up just when victory is in hand, is the same as not having tried at all. In this respect, it is important to have an Attorney represent an individual in obtaining disability retirement benefits from the Office of Personnel Management. 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. Like the groundhog who eternally pursues, and applicant must be ready to “go the distance”. 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

What is 'history' but the story of the victorious? It is the culmination of the incremental and persistent drive of countless and nameless individuals; the residue of an onslaught of thousands of nameless soldiers who died before the final wave defeats an army; the extraordinary sacrifice of ordinary individuals, the true heroes of history; for how many unheralded soldiers who merely do their duty, how many nameless tombstones helped secure victory? We shall never know -- only that persistence in the pursuit of excellence is never a lost cause.

        In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations.
 

    OPM’s Medical Questionnaire

    At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence -- that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully -- is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.

    Some basic rules in responding to OPM’s Medical Questionnaire:

    Rule #1:  Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.

    Rule #2:  Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it -- why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.

    Rule #3:  Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations -- one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.

    Finally, Rule #4:  Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”

    Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.
 

    Second Issue: Accommodations

    Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “'subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.

    The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that "the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position." In Bracey, the Court clearly stated that an employee must be reassigned to a "vacant" position, and not one which was merely "made up", and the reasoning of the court is clear: the Court Stated:

    "We Agree with Mr. Bracey that OPM's argument fails, because the term ‘vacant position’ in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A 'position' in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it." Id. at p. 1359

    Further, the Court went on to state that the term "vacant position" means "something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position." Id. at 1360.

    Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.

    I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired -- a right -- in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future -- one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.

    I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – 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 DisabilityAtty@msn.com
• Call me at 1-800-990-7932

Sincerely,

 
Robert R. McGill, Esquire

In Filing for Disability Retirement, Remember the Basics
Posted on May 7, 2007

In the opening sentence of Davis v. the Office of Personnel Management, PH-844E-06-0242-I-1, the Merit Systems Protection Board reminds us all that the "burden of proving entitlement to a retirement benefit is on the applicant..." In past articles, I have discussed a variety of issues, from important legal principles based upon Bruner v. OPM, to showing how to build the "proper bridge" in preparing a disability retirement application. In preparing a disability retirement application, however, remember to always satisfy the "basics", because if you fail at the basic level, you will never get to the “substantive” level to argue your case.

    Davis is a case about a disability retirement applicant whose application was denied at the first Stage (the "initial application stage") because she "did not present any medical evidence to support her claim." Strike One -- how can you file a medical disability retirement application without any medical evidence?

    Next, Ms. Davis failed to file her "Request for Reconsideration" within the 30-day period. She filed it 5 days late. Strike Two -- you won’t even be able to argue the substance of your disability retirement case if you don’t take care of the "basics" -- like filing your Request for Reconsideration in a timely manner. In OPM’s denial letter, it clearly stated: "Your Request for Reconsideration must be received by OPM within 30 calendar days from the date of your initial denial letter." Ms. Davis had no excuse.

    Now, every now and then -- but very, very rarely -- an exception will come along. Such was the case in Goodman v. Office of Personnel Management, 100 M.S.P.R. 43 (2005), which was cited as a distinguishing case by the Board. In Goodman, multiple factors allowed the appellant to be excused for her tardiness -- including, being misled by OPM verbally over the telephone; receiving the denial letter some three weeks after being postmarked (thereby leaving her with only a week to respond); and being a quadriplegic who had to rely upon others to assist her in responding. Be aware: only under the most exceptional of circumstances will being late in responding be excused. You must take care of the basics, before going on to the substance of a case.

    Ms. Davis filed an appeal to the Full Board. Her appeal was, as you might guess, denied. The Board stated that in cases such as this, where Ms. Davis "fails to show that she was not notified of the deadline and was not otherwise aware of it, or that she was prevented by circumstances beyond her control from making the request within the time limit, we will not reach the issue of whether OPM was unreasonable or abused its discretion in denying her untimely request for reconsideration." (italics added).

    Strike three. Ms. Davis is out. As I have reiterated throughout this article, unless you take care of the basics, you cannot even get to the substance of your disability retirement claim. Like the parable of the mighty army which could defeat its enemy, that army could not survive to fight the battle unless it took care of a basic need -- water for its troops to cross the scorching desert to meet its enemy. It failed to take care of the basics.

    In life, we are all busy doing multiple things, and when a Federal or Postal Employee comes to a point in his or her life where filing for disability retirement becomes a necessity, it is often a good idea to hire an attorney -- not only to ensure that the "basics" are taken care of, bur further, to make sure that you get the opportunity to argue the substance of your particular case. My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at DisabilityAtty@msn.com, or visit my website at www.Federaldisabilitylawyer.com.

As an aside, let me point out some other "basics":

    1.  Remember that you have one (1) year from the date you are separated from service to file for disability retirement. The one (1) year date does not begin when you stop working; it doesn’t begin when you get placed on LWOP; it doesn’t begin from the time you get disabled. It begins from the date you are separated from Federal Service.

    2.  For my clients (and those who are not my clients) whom I got disability retirement for -- remember that you are allowed to get another job and make up to 80% of what your position currently pays, in addition to the disability annuity you are receiving. It is earned income that counts -- not rental income, not investment income, and certainly not your disability income.

    3.  A teaser -- I will probably address this issue in my next article -- the Office of Personnel Management seems to, more recently, be scrutinizing those who are already receiving medical disability retirement benefits. For those of my clients (and those who are not my clients) who receive disability retirement, remember to take OPM’s Medical Questionnaire seriously. I have had more cases than usual where disability annuitants have had their disability income discontinues. More on this later....

Robert R. McGill, Esquire

Disability Retirement and the Agency Cover of Accommodation

Deep in the woods, the mother rabbit and her bunnies passed by a dead fox. Curiosity overwhelmed the bunnies, and they began to hop in unison towards the corpse. "Stop!" shrieked the mother rabbit. The bunnies froze in their tracks. At about the same time, the corpse quivered, oh ever so slightly, almost imperceptibly. The mother rabbit gathered her bunnies, and hopped away hurriedly, whispering to them, "Remember, my lovelies, the mistake you make may cost you more than the satisfaction of your curiosity." -- From "Fables Long Forgotten"

First, a quick clarification: I have had periodic calls concerning the time-frame in filing for disability retirement. The Statute of Limitations in filing for disability retirement is one year from the date you are separated from Federal Service -- not from the date you were injured, or from the time you stopped working, etc.

Next, many Federal and Postal Workers ask me to represent them in obtaining disability retirement at the Second Stage (OPM's Reconsideration Stage), after having filed without representation. I have no problems with that -- indeed, sometimes (though rarely), individuals have such a severe degree of medical disabilities that an attorney is not necessary. For the majority of Federal and Postal Workers, however, representation beginning at the initial stage of a disability retirement application is necessary. If, however, for financial or other reasons (including stubbornness), an individual insists upon filing for disability retirement without a qualified Attorney, the following are a few things which you should NOT do in preparing your application:

Do not become non-compliant in a treatment regimen, medication regimen, or any aspect of a reasonable medical regimen designed to treat the disease or injury. This is a sure way to have your disability retirement application denied. For, when an employee "is unable to render useful and efficient service because that employee fails or refuses to follow or accept normal treatment, it is wholly proper to say that the employee's disability flows, not from the disease or injury itself (as the statute requires), but from the employee's voluntary failure or refusal to take the available corrective or ameliorative action." Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed. Cir. 1986) (A word of caution: this does not mean that all surgeries must be consented to).

Do not ignore the basis of a Notice of Removal. I have previously discussed the importance of obtaining the Bruner Presumption, whenever possible, in a disability retirement case. Beyond getting the Bruner Presumption, however, is the fact that any implication of misconduct or willful failure on the part of the Federal or Postal Employee should always be appealed, if not to have it completely amended, then to at least have such a basis for removal expunged, and instead to allow for the employee to resign, thereby nullifying misconduct as a basis for separation. Never give the Office of Personnel Management an additional reason to deny your disability retirement application.

Do not have your treating doctors send in medical documentation directly to the Agency Personnel Office. Always take charge of your own disability retirement application. Have the doctors send the medical documentation to you, and personally review and inspect each page of your submission for accuracy, relevance, and applicability to your medical condition. Never blindly submit medical documentation to the Office of Personnel Management. Again, never give the Office of Personnel Management an additional reason to deny your disability retirement application. This advice, of course, goes “hand-in-hand” with my policy of never signing the SF 3112C (Physician’s Statement), which often releases all of the medical documentation directly to the Agency.

These are just three fundamental "Do Not" rules in preparing and filing for disability retirement. When a Federal or Postal Employee comes to me at the Reconsideration Stage for legal representation, I find that I must first correct several fundamental errors committed by the applicant. While I can almost always correct the mistakes already made, the damage can only be minimized, and never completely eradicated, because the error is already known to the Office of Personnel Management. Still, I am normally able to convince the Office of Personnel Management to approve the disability retirement application

In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual’s choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available -- knowledge. Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength -- and this requires knowledge. Like the Mother Rabbit who cautions her bunnies, do not allow lack of knowledge to be your stumbling block. My name is Robert R. McGill, Esquire. I am an attorney who specializes in disability retirement claims for Federal and Postal Employees. If you would like to discuss your particular case, you may contact me at 1-800-990-7932, or email me at DisabilityAtty@msn.com

Legal Updates Impacting Disability Retirement Laws For FERS and CSRS Employees

Oct 23, 2005

- What is the difference between the madman, the mediocre, and the Master? The madman fails to master reality, and therefore is unable to function with knowledge; the mediocre may have some knowledge, but fails to master it; and the Master -- he is the rare one who sees the reality, seeks the knowledge, and is able to grasp both.
- From Ancient Parables

I have often discussed the legal advantages of being separated from Federal Service for one’s “medical inability to perform” one’s job, which results in what is commonly known as the “Bruner Presumption”, where such a termination results in a prima facie showing of his or her burden of proof. What this means is that, with such a termination, the “burden of production” shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993) Bruner was a 1993 case, and still applies today. However, further developments since then have expanded the applicability of the Bruner Presumption, and they are of importance for those filing for disability retirement.

The Merit Systems Protection Board has held that removal for “extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, Docket #DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. OPM, 91 M.S.P.R. 397 (2002). What this means is that, the mere fact that a removal letter does not specifically state that you are being separated from service for you “medical inability to perform” your job, does not necessarily mean that you are not entitled to the Bruner Presumption. That is why it is often important to have an attorney involved in negotiating the terms of a removal action, especially where removal is an action about to happen. For instance, if it is becoming clear that you have been on LWOP for a period approaching a year, it might be a good idea to submit medical reports and documents showing the medical basis for your LWOP. Or, if a Notice of Proposed Removal has been issued, it is important to respond to such a proposal by submitting medical documentation establishing the basis for your non-attendance at work.

Now, the next and natural question is: How far will the Merit Systems Protection Board go in giving you the Bruner Presumption? The answer: It is not always important to get the Bruner Presumption, as it is to argue for the Bruner Presumption. In my experience litigating these cases before the Board, I have found that it is helpful to make a forceful argument that my client should be entitled to the Bruner Presumption, based upon all of the circumstantial evidence. And, even if I am not able to convince the Administrative Judge that my client is entitled to the Bruner Presumption, the argument itself highlights the fact to the Judge that it was a close call -- and this often leads to a victory.

Indeed, as a rather funny aside, after I had submitted a legal memorandum and argued to a Judge during a Prehearing Conference that the Bruner Presumption should apply in a particular case, the Judge stated to me, “Mr. McGill, according to your argument, the Bruner Presumption should always apply!” To which I responded: “Your Honor, that would indeed be my preference.”

Furthermore, it is also of vital importance to appeal a removal action whenever possible and legally permissible, especially where the removal action was based upon the alleged misconduct of the individual. Why? Because by appealing the removal action, you always stand the chance of coming to a compromise with the Agency, and having the Agency change the basis of the removal to one of “inability to perform the job” or, at the very least, to “resignation based upon medical problems”. The case-law is consistent in holding that the Board will “generally give effect to the terms of a settlement agreement between an applicant for disability retirement and her employing agency in determining the applicant’s entitlement to disability retirement.” Jordan v. Office of Personnel Management, 77 M.S.P.R. 610, 614-17 (1998), recons. Denied, 86 M.S.P.R. 144 (2000); and Bynum v. OPM, DC-831E-00-0093-I-1 (June 29, 2001). Similarly, cases such as Morton v. OPM, PH-844E-99-0224-I-1 (June 28, 2001) -- where, while the Board found that the Appellant was not entitled to disability retirement, went out of its way to clarify the fact that the Administrative Judge was “improperly influenced by” the original removal action, and that the original removal action should not have been considered in making the determination concerning disability retirement entitlement. Similarly, in Lewis v. OPM, CH-831E-98-0434-I-2, the Board stated unequivocally that the Board “will give effect to the terms of a settlement agreement between an applicant for disability retirement and her employing agency, in determining the applicant’s entitlement to disability retirement.”

In other words, even if you were originally removed for misconduct, if your removal is later changed by a settlement agreement with the Agency, and you subsequently file for disability retirement, the Administrative Judge must keep a blind eye with respect to the original removal action.

In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual’s choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available -- knowledge. Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength -- and this requires knowledge. My name is Robert R. McGill, Esquire. I am an attorney who specializes in disability retirement claims. If you would like to discuss your particular case, you may contact me at 1-800-990-7932, or email me at DisabilityAtty msn.com.

Preparing the Proper Bridge to Win a Disability Retirement Case under FERS and CSRS

Then, there is the story of an old man who wanted to have peace and quiet , and become a recluse. So he built a castle, and began first by digging a moat so wide and deep that none would be able to violate his privacy. Thereafter, he filled the moat with water, and released crocodiles and other dangerous creatures to keep all strangers away. Next, he scattered broken glass and sharp objects on the outer perimeter of the moat, to ensure that none would be able to enter. Alas, when it came time to build his home in the middle of the moat, none could enter, for the old man had forgotten to first build a bridge. - From Stories Forgotten

Many individuals who have filed for disability retirement benefits with the Office of Personnel Management (OPM), get their applications rejected because they have not created the proper "nexus", or bridge, between their medical condition and the duties of their job. Remember, disability retirement is unlike Worker's Comp or Social Security. Under Worker's Comp, often the primary focus is to prove the causation between work and injury -- in other words, the "bridge" that needs to be constructed is one that shows that one's medical condition was directly caused by, or occurred at, the worksite. For Social Security disability, the focus is often upon establishing the existence of a specifically diagnosed medical condition, one which is accepted by the Social Security Administration as causing a 'debilitating' or 'disabling' condition, such that 'total disability' can be established. In each case, the "bridge" to be constructed is different. So it is also with disability retirement under OPM.

Remember that, for disability retirement under CSRS or FERS, it is not so important what the medical disability is, as it is to show that the symptoms one has impacts directly upon one's ability or inability to perform one's job. Indeed, in the bedrock case of Bruner v. OPM, 996 F.2d 290 (Fed.Cir. 1993), the Federal Circuit Court of Appeals stated that it is the "relationship between the service deficiency and the medical condition," (emphasis added) which is one of the important "bridges" which must be established in a disability retirement case. Thus, I find that many individuals who have attempted to file for disability retirement at the first stage, and who have had his or her application denied, come to me because of a failure of creating a "nexus", or a bridge, between what the diagnosed medical condition is, and what the job requires. Thus, by way of a simple example, an applicant might think that because he or she suffers from severe knee problems, that one needs only to have the doctor give a diagnosis, attach some medical records, and expect that OPM will grant him disability retirement. This might be true if the individual's job is as a Letter Carrier for the U.S. Postal Service (although, even in such an instance, OPM will be very skeptical and require a complete explanation); but it might not work if you work as a Computer Specialist with a Federal Agency, where you have a sedentary position not requiring daily repetitive use of your knees. In either case, what is important is to have the doctor show how the medical disability impacts upon one's ability to perform his or her job. (In the latter example, it may be that the chronic pain in his knee requires a medication regimen of narcotic pain relievers, and such medication impacts upon his ability to focus upon a cognitively-intense job. In such a case, I have been able to get OPM to accept such a claim, even in a sedentary job).

Often, individuals make the mistake of treating disability retirement claims under FERS and CSRS as if it was a Social Security claim. However, the "official diagnosis", or name of the disability, is not important for disability retirement claims. Instead, it is the relationship between the symptoms one has, and the impact of those symptoms upon the requirements of the job. Similarly, neither 'causation' nor 'permanent and stationary' are relevant for disability retirement claims (whereas they are obviously important in OWCP cases). Indeed, I have had clients who, despite having serious and debilitating medical disabilities, had their claims rejected by the Office of Personnel Management. At the Reconsideration Stage, I have been successful at getting them approved, not by obtaining more medical documentation, but rather, by clearly outlining to the Office of Personnel Management, in detail, what the applicant's job required, and showing the relationship between the serious medical condition and the requirements of the job.

This is similarly true at the Merit Systems Protection Board (M.S.P.B.) level of an appeal in disability retirement claims (the Third Stage in the process). At the M.S.P.B. level, I always insist upon having a medical doctor testify via a telephonic hearing. At the Telephone Hearing, I always have the doctor explain, in methodical detail, the relationship between the medical disability, and the kind of job the Applicant is required to do. Indeed, this requirement of mine has been successful -- not because of my own "brilliance" (although, admittedly, I would like to think that I have some part in the success of a disability retirement claim), but rather, because that is what the law requires. Thus, in Dunn v. OPM, 60 M.S.P.R. 426, 432 (1994), the Board stated therein that 'absent a clear and reasoned explanation of how a medical condition affects an employee's specific work requirements, a physician's conclusions on disability are unpersuasive', appeal dismissed, 91 F.3d 169 (Fed. Cir. 1996). Again, note how the law requires you to show the relationship, or "bridge", between the medical condition and the type of job one performs.

Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. In order to make such a claim valid, you must assert your legal right to it. My name is Robert R. McGill, Esquire. I am an attorney who specializes in disability retirement claims. If you would like to discuss your particular case, you may contact me at 1-800-990-7932, or email me at