PostalReporter.com - Disability Retirement and the = Law Today by Robert McGill

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Civil Service Retirement =20 Articles

Web of = Betrayal : A Work=20 Saga for the 21st Century --"Wendy Ghannam is a former = federal=20 employee turned whistleblower. She suffered a = disability from=20 her job and was basically threatened, denied her=20 rights

Read Wendy's = Article:=20 Federal Workers Beware!!

Robert McGill: I am an Attorney who = represents=20 Federal and Postal workers from all across the = United=20 States, including Alaska, Hawaii and Puerto = Rico. =20 I do not charge for telephone = consultations. If=20 you would like to contact me, you may call me at = 1-800-990-7932, I also=20 advertise in the Attorney Directory of the = Federal=20 Times.=20 www.federaldisabilitylawyer.com

When the cat had = cornered the=20 mouse in the farmer=92s barn, the only place = which the=20 mouse discovered to hide was behind the stock of = the=20 farmer=92s double-barrel shotgun leaning against = the wall;=20 and when the dog chased the cat later in the = week, the=20 cat tried in vain to climb up the length of the = same=20 silent shotgun; and when the bewildered cow = stampeded=20 towards the irritating bark of the dog, the dog = ran with=20 its tail between its hind legs right past the = steely=20 double barrels. It was only later in the = night,=20 when the fox tried to invade the chicken coop, = that the=20 shotgun was picked up =96 by the farmer, the = only one who=20 knew what the shotgun was for, and how to use=20 it. -- =20 Anonymous

Federal=20 Disability Retirement: The Full Arsenal of = Weapons

= When a Federal or Postal Employee = decides to file=20 for Federal Disability Retirement benefits, he = or she is=20 confronted with a compendium of =93Standard = Forms=94 =96 from=20 SF 3107 (2801 for CSRS employees), to the 3112 = series=20 (for both CSRS & FERS employees). The = initial=20 reaction in confronting the multiplicity of = forms is=20 usually an admixture of anxiety, puzzlement, = disbelief,=20 confusion, and concern. Indeed, it is=20 understandable that individuals filing for = medical=20 disability retirement will often feel = overwhelmed by the=20 need to answer questions which =96 depending = upon what=20 information is provided, and how it is = characterized =96=20 will determine the outcome of a Federal = Disability=20 Retirement application.

= Furthermore,=20 while the completion of the Standard Forms = themselves=20 comprise an essential element of the Federal = Disability=20 Retirement packet, it is merely one = element. The=20 forms themselves merely=20 provide:

Basic personal and = professional=20 information=20
The Applicant=92s = Statement of=20 disability and a description of how the = disability=20 has impacted his or her ability/inability to = perform=20 the essential elements of one=92s job =
Supervisor=92s Statement = =96 a=20 supervisor=92s assessment of the = employee=92s=20 performance, and any impact seen upon the = Agency=92s=20 operation and mission=20
The Agency=92s statement = =96 whether an=20 accommodation was attempted or even = possible;=20 whether reassignment was attempted or even = possible;=20 etc.=20
Medical documentation as = an=20 attachment, which should support the = Applicant=92s=20 Statement and rebut any contrary perspective = provided by the Agency=20
Addressing of other = issues =96 of=20 spousal survivor annuity, life insurance, = health=20 insurance, etc.

= Beyond=20 the Standard Forms, however, there is a need by = the=20 applicant to recognize that an effective = Disability=20 Retirement application is surrounded by a = plethora of=20 statutes, case-law holdings (Legal Opinions = rendered by=20 Administrative Law Judges at the Merit Systems=20 Protection Board, by the Federal Circuit Court = of=20 Appeals, and other legal jurisdictional forums), = and=20 persuasive peripheral elements. These = comprise the=20 =93full arsenal of weapons=94 which, depending = upon each=20 individual case, need to be utilized in the = proper=20 tailoring and customization of a particular = case,=20 depending upon the unique facts and medical=20 circumstances of the case. Some of the = =93arsenal of=20 weapons=94 which can be used, may include the = following=20 (and this is by no means an exhaustive list, but = a minor=20 sampling):

A Social Security = Disability=20 determination. In the rare instance = when the=20 Social Security Administration renders a = decision=20 prior to a FERS or CSRS-Offset Disability = Retirement=20 application, what should be done? What = legal=20 arguments should be used?=20
If your Agency is = contemplating=20 termination, what should you do? Can = you, or=20 should you, attempt to influence the basis = of the=20 termination?=20
If your Agency has = proposed=20 termination, what should you do?=20
If your Agency has = already=20 terminated you, but did not delineate any = medical=20 basis, should an appeal be filed with the = Merit=20 Systems Protection Board?=20
Should an adverse = Supervisor=92s=20 Statement be contested in any way?=20
Does the Bruner = Presumption apply=20 in the case?=20
Even if the Bruner = Presumption does=20 not directly apply, should the principles = underlying=20 the case of Bruner v. OPM be = argued?=20
Does it matter how the = Agency=20 completes the SF 3112D?=20
Can medical evidence = obtained after=20 termination be used to apply for Disability=20 Retirement benefits under the principles = delineated=20 in Reilly v. OPM?=20
What should you do if the = Office of=20 Personnel Management tries to diminish your = medical=20 evidence based upon the fact that your = doctor=92s=20 opinion relies upon =93subjective=94 = evidence, as=20 opposed to =93objective=94 medical = evidence?=20
When is it appropriate to = argue the=20 principles espoused in Vanieken-Ryals v. = OPM?=20

These are just = a small=20 slice of the larger arsenal of weapons =96 = legal,=20 procedural, and substantive =96 which can be = used, and=20 should be used, when it is appropriate. = And=20 appropriateness is determined by the = individual=20 tailoring needs of each particular case, based = upon the=20 unique facts and circumstances, the medical = conditions,=20 the impact of such medical conditions upon the=20 particular kind of job one engages in, = etc. This=20 is why an attorney who is experienced in Federal = Disability Retirement Law can be of assistance = =96 based=20 upon the attorney=92s experience, legal = knowledge, and=20 discretionary judgment as to the needs of each=20 case. Like the mouse, the cat and the dog = who knew=20 not what weapon lay in the arsenal of the barn, = a=20 Federal Disability Retirement applicant should = not enter=20 into the fray without knowing which weapons to = use, and=20 how to use them.

For more information, contact = me in one=20 of these ways:
* = View my=20 Postal Workers blog at=20 USPSdisabilityRetirement.com

* Email me = at=20 federal.lawyer@yahoo.com

* Call me = at=20 1-800-990-7932

Sincerely,

Robert R. McGill,=20 Esquire

FEDERAL = DISABILITY=20 RETIREMENT LAWS, MEDICAL CONDITIONS, AND THE=20 INTERSECTING COMPLICATIONS WITH OWCP, SOCIAL = SECURITY=20 AND FERS &=20 = CSRS

    =20 The story is told of the = fawn that=20 came upon its own reflection in the lake, and = stared=20 ceaselessly with fascination into the mysterious = parallel universe which confronted it. It = could=20 not comprehend the beauty of this creature = staring back=20 at her, with the serenity of the vast pasture of = blue=20 and white sparkling in the background. As=20 nightfall came, the herd of deer moved on to = safe havens=20 within the forest; this particular fawn, = fascinated by=20 the complexity inherent in this untouchable = universe,=20 mesmerized by its unknowability, waited in = frozen=20 suspense =96 only to be found the next morning, = a rotting,=20 half-eaten carcass fed upon by morning=20 vultures.
         =             &= nbsp;        -- =20 From Fables Old and=20 = New

     It=20 is indeed a complex world. The multiple = issues=20 surrounding Federal Disability Retirement Laws, = the=20 Civil Service Retirement System (CSRS), the = Federal=20 Employees Retirement System (FERS), the = intersection=20 between such benefits received under Federal = Disability=20 Retirement and the choices to be made with = benefits=20 potentially received from the Office of Workers=20 Compensation Programs (OWCP), the difference = between=20 Temporary Total Disability benefits and a=20 Scheduled Award, and further compounded by = Social=20 Security Disability Insurance (SSDI) payments; = and add=20 to all of this the aggressive implementation of = the=20 National Reassessment Program initiated by the = U.S.=20 Postal Service and -- have you paused, yet, to = take a=20 breath?

I = receive=20 telephone calls weekly by Federal and Postal = employees=20 who are scared, confused, concerned and puzzled = by the=20 maze of information, the conflicting (or = apparently=20 conflicting) nature of the vast amount of = information=20 =93out there=94 in the world of the = Internet. The=20 Internet is a wonderful arena of information;=20 information, properly understood and verified = for=20 accuracy, can lead to proper choices being = made. =20 Too much information, on the other hand, can = lead one to=20 confusion and an inability to make the = =93right=94=20 choices. Extrapolating from this vast = universe of=20 information, this Article is meant to provide = some=20 meaningful guidance for the Federal and Postal = employee=20 considering filing for Federal Disability = Retirement=20 benefits under CSRS or = FERS.

In = order to=20 clarify some of the maze of confusion, the = following=20 will attempt to somewhat systematically = categorize the=20 cornucopia of information out there. Like = the fawn=20 in the fable, it is important to resist being = frozen by=20 the vastness of the information =93out there=94, = and to=20 simplify the information into compartments of=20 understandable portions: =

1. If=20 it is merely a matter of money =96 i.e., the = highest=20 income, without regard to other issues =96 and = the Federal=20 or Postal employee suffers a partial or total = disability=20 as a result of an injury incurred at work, then = the=20 Federal Employee=92s Compensation Act =

(FECA), (otherwise known as = =93Federal=20 Workers Compensation=94, or OWCP or Department = of=20 Labor/OWCP) is the path to follow. = However, you=20 must understand that FECA is not a = retirement=20 system. This concept is an = important one=20 to ponder and follow to its logical = conclusion. =20 Because it is not a retirement system, it is = instead a=20 system in which an injured Federal or Postal = employee is=20 compensated for, during the time of disability, = with=20 a view towards returning the = Federal or=20 Postal employee back to work. As such, as = part of=20 its =93program=94, benefits consist of cash = compensation=20 equaling two-thirds of lost earning capacity if = the=20 Federal or Postal Worker has no dependents, or=20 three-fourths of lost earning capacity if the = worker has=20 dependents. Thus, a Federal or Postal = Worker with=20 a dependent would be receiving 75% of one=92s = gross=20 salary, and that is indeed an attractive = benefit. On top=20 of it all, FECA benefits are not subject to = income=20 taxes. Again, this is a good benefit if it = is=20 merely a matter of money and, I would add, if = the=20 medical condition & injury appears to be of = a=20 temporary nature. =

2. FECA=20 (OWCP/Federal Workers Compensation) covers = Federal and=20 Postal Employees immediately upon = employment. It=20 does not have the legal criteria, as is the case = under=20 FERS & CSRS disability retirement, of = meeting=20 minimum eligibility requirements of a certain = number of=20 years of Federal Service (for CSRS, 5 years =96 = which, if=20 one pauses and thinks about it, anyone who is = under CSRS=20 should already meet that requirement; for FERS, = a=20 minimum of 18 months of Federal Service). = Thus,=20 for the Federal or Postal employee who walks = into his=20 Federal Office Building on the first (or 10 = thousandth)=20 day of work, slips and breaks a leg, FECA is = probably a=20 good Federal benefit to file for. But FECA = does=20 not just pay cash compensation =96 it also = provides for=20 payment of medical expenses related to the = work-related=20 illness or injury, as well as =93vocational = rehabilitation=20 assistance=94 and =93payment for attendant care=20 services=94. These other =93benefits=94 = are where the=20 problems arise; for, anyone who has been under = the thumb=20 of FECA is well-aware of the multiple and = oppressive=20 problems: From getting approval for a = diagnostic=20 test or surgery; to having the Vocational Rehab = Nurse=20 sitting in on the doctor-patient appointment; to = sending=20 the Federal or Postal employee to a = Second-opinion=20 doctor (or a =93referee=94 Third opinion doctor) = who=20 miraculously declares that there is nothing = wrong with=20 the employee, and he or she may =93return to = full=20 duty=94.

3. FERS=20 and CSRS disability retirement benefits have the = overall=20 advantage for any Federal or Postal Employee who = has a=20 minimum of 18 months of Federal Service (for = FERS=20 employees) or 5 years (for CSRS employees), who = realize=20 that the medical disability that one has, is = impacting=20 the ability to perform one or more of the = essential=20 elements of one=92s job; that the medical = condition will=20 last for a minimum of 12 months; and most = importantly,=20 that the future requires that one thinks not = only about=20 the present financial compensation, but about = one=92s=20 future employment, future potential earnings, = and future=20 potential benefits. Thus, FECA payments = should=20 normally be looked at as a temporary benefit for = a=20 limited duration of time, in order to medically = recover=20 to go back to work. That is certainly how = OWCP=20 views it. Of course, if you are receiving = FECA=20 payments, you may also apply for Federal = Disability=20 Retirement benefits under FERS & CSRS, and = then=20 elect to stay on OWCP, and keep the approved = FERS or=20 CSRS disability retirement benefits =93in = limbo=94; and,=20 technically, one may switch back and forth = between the=20 two =96 although, as a practical matter, the = headaches=20 inherent in attempting to do so are more = prohibitive=20 than the regulations would make you=20 think.

4. Remember that FERS and = CSRS=20 disability retirement benefits are just that =96 = they are=20 retirement benefits. Just as = there=20 are logical consequences for staying under a=20 non-retirement benefit such as FECA (such as = being=20 compelled to undergo vocational rehabilitation = in order=20 to place you in a job -- any job -- = in order=20 to get you =93back to work=94; or being sent to = a Second or=20 Third Opinion doctor for determination of your = medical=20 condition), there are logical advantages to = being=20 medically =93retired=94 under OPM disability=20 retirement. Such logical advantages = include: =20 being able to work in some other capacity and = earning up=20 to 80% of what your former Federal or Postal = position=20 currently pays; receiving Cost of Living = Adjustments=20 after the first 12 months; not being subjected = to the=20 onerous FECA rules and regulations; having your = years on=20 Federal Disability Retirement count towards your = total=20 number of years of Federal Service, which is = important=20 when your Federal Disability Retirement benefit = gets=20 recalculated as =93regular retirement=94 when = you turn age=20 62; being able to live in retirement, yet to = pursue a=20 second career; and other benefits. Of = course,=20 under FERS, the Federal or Postal Employee who = files for=20 Federal Disability Retirement benefits must also = file=20 for Social Security Disability benefits, = also. =20 This, because the Federal Government wants to = determine=20 whether you qualify not only as an individual = medically=20 disabled from your particular Federal or Postal = job, but=20 further, from any gainful employment at = all. If it=20 is found that you qualify under SSDI as well as = under=20 FERS disability retirement, then there is a = coordinating=20 offset of benefits =96 100% offset in the first = year, and=20 60% offset every year thereafter, until age=20 62.

5. Do=20 you actually want to get SSDI, as well as FERS=20 Disability Retirement benefits? Generally=20 speaking, this question is normally a moot = point,=20 because most people who qualify for Federal = Disability=20 Retirement benefits under FERS do not = concurrently=20 qualify for Social Security Disability benefits=20 (SSDI). This is because SSDI has a = =93higher legal=20 standard=94 =96 one of =93total disability=94 = from gainful=20 employment, as opposed to being disabled from = being able=20 to perform one or more of the essential elements = of=20 one=92s Federal or Postal job. Here are = the three=20 essential rules (in my view) concerning = SSDI: =20 First, you need to get a receipt showing you = filed for=20 SSDI at or before the time of approval of the = Federal=20 Disability Retirement application by the Office = of=20 Personnel Management; Second, if the SSDI = application is=20 denied, it will not impact your FERS Federal = Disability=20 Retirement application; Third, if your SSDI is = approved,=20 you need to inform the Office of Personnel = Management as=20 soon as possible, for two reasons: One, = the SSDI=20 approval can legally help you get your FERS = Disability=20 Retirement application approved, and Two, = because there=20 is an offset of payments, OPM needs to be = informed of=20 the approval.

The = above=20 compartments of information comprise only a = miniscule=20 fraction of the greater, macro-aggregate of = information=20 =93out there=94. For instance, I have not = even touched=20 upon the issue of SSDI ceilings of earned = income; of=20 what happens when an individual reaches = =93Substantial=20 Gainful Activity=94 (SGA); of the advantage of = filing for=20 a Scheduled Award while switching over to OPM = Federal=20 Disability Retirement benefits (because a = Scheduled=20 Award can be received from FECA concurrently = with OPM=20 disability retirement benefits); and further, = the entire=20 impact of the National Reassessment Program = (NRP)=20 implemented by the U.S. Postal Service to = essentially=20 throw everyone who is not =93fully productive=94 = in his or=20 her craft back onto OWCP roles, and whether or = not OWCP=20 will automatically respond by reinstituting = compensatory=20 benefits (not very likely to be = =93automatic=94), and what=20 this means for the Postal employee who should = certainly=20 consider filing for Federal Disability = Retirement=20 benefits under FERS; or the Federal Employee who = works=20 for the FAA and loses his or her medical = certification =96=20 does this automatically insure that one is = eligible for=20 Federal Disability Retirement benefits = (answer: No=20 it does not); or the vast and multitudinous = issues that=20 surround the universe of medical conditions, the = Federal=20 or Postal Employee, FECA, FERS &=20 CSRS.

=20 The world is indeed a = complex place,=20 with complex issues and a vast universe of=20 information. The key to all of this is to = resist=20 acting like the fawn in the fable =96 do not get = mesmerized by the vast complexity of it all; = instead,=20 wade through the information, and consider = consulting an=20 attorney who is knowledgeable about the legal = issues=20 which impact your life.

New = Developments in=20 Federal Disability Retirement

(7/23/09)

When the law = "works", it=20 is indeed a benefit to society. Now, cynics = will=20 view the "working of law" as that which benefits = one=20 side of the equation, while undermining or = damaging the=20 "opponent's" side of the case. Thus, according = to this=20 perspective, every case, every decision, every = statute=20 is simply the natural consequence resulting from = the=20 adversarial process =96 where there are winners = and=20 losers. A corollary of this view = encompasses the=20 idea that "history" is merely that which is = written by=20 the prevailing power-structure, and that no = objective=20 standard of historical analysis exists, but = merely=20 subjective perspectives combined with power, = position,=20 and advantage.

=20

Yet, as the=20 Aristotelian view is that man's essence is = constituted=20 by his rational nature, so the evolution of = case-law,=20 expanded, delineated and explained by Court = decisions=20 rendered over time, reveal that rationality and = reasoned=20 approaches to complex problems reflect a logical = structure. Legal refinements pursuant to = the=20 initial passage of a statute are the inevitable = evolving=20 process of the law. When the application of = rational principles and the rules of logic = reflect a=20 reasoned perspective, it tends to benefit = society as a=20 whole.

A recent = case, decided=20 on July 15, 2009, reflects a rational, reasoned=20 approach, and benefits all Federal and Postal = employees=20 who become disabled while employed by the = Federal=20 Government, and who find a need to file for = Federal=20 Disability Retirement Benefits under FERS or = CSRS. =20 Yes, it is a case decided by the U.S. Court of = Appeals=20 for the Federal Circuit, where there were two=20 "litigants", and yes, one side won, and the = other side=20 lost.

But the mere = fact that=20 there are winners and losers does not mean that = the=20 proper law was not decided; rather, when a = decision is=20 rendered with structural compliance with = statutory=20 authority, with reasoned principles delineated=20 concisely, one may objectively declare that the = "law" is=20 working. It represents a "good day" when = Federal=20 and Postal employees are reinforced with "the=20 law". The principles expounded may = not=20 immediately benefit the Federal or Postal = employee today=20 or tomorrow; but when the need for filing for = Federal=20 disability retirement benefits comes to = fruition, the=20 benefit of today's good law will be there for=20 you.

=20

Before I = briefly=20 discuss the "new" case, however, let me set the = scene=20 with what I consider a consistent, reasoned and = logical=20 "foundational" case =96 almost a precursor of = the present=20 case. Previously, I had written a number of = articles on the recent case of = Vanieken-Ryals v.=20 OPM, 508 F.3d 1034 (Fed. Cir. 2007), = precisely=20 because it represented a major (and, in my view, = a=20 correct) decision which "toppled" an irrational=20 imposition of a baseless standard championed by = OPM --=20 that there is a distinction to be made between=20 "objective" as opposed to "subjective" evidence=20 concerning validity of medical findings (example = of the=20 absurdity: How do you prove the existence of = pain?=20

While an MRI = may show=20 a given physical condition, you cannot prove = that such a=20 physical condition equates to pain, leaving = aside any=20 quantification of such pain. Indeed, all that = can be=20 shown would be, at most, a 1-to-1 correspondence = between=20 an image of a dysfunction which exists = simultaneously=20 with a private sensation known as=20 "pain". Similarly, how do you prove the = existence=20 of Major Depression? Anxiety? Panic=20 attacks?). Thus, the false imposition by = the Office=20 of Personnel Management of a legal standard = (which, by=20 the way, is not delineated in any statutory = authority,=20 as pointed out by the Court in = Vanieken-Ryals)=20 was correctly swept away by the Federal Circuit = Court.=20

Further,=20 Vanieken-Ryals stood for the = proposition that,=20 so long as a Disability retirement applicant's = treating=20 doctor arrives at the medical opinion based upon = "established diagnostic criteria" which are "not = inconsistent with generally accepted = professional=20 standards", unless OPM can attack the = credentials or=20 veracity of the medical opinions, proper = probative=20 weight must be given both by OPM and by the = Merit=20 Systems Protection Board in reviewing, = evaluating, and=20 rendering a decision on a Federal disability = retirement=20 application.

Vanieken-Ryals stands for the = important=20 proposition that, absent a statutory basis, a = federal=20 agency (i.e., The Office of Personnel = Management) will=20 not be allowed to arbitrarily impose legal = standards=20 which are non-existent, which were never = mandated by=20 Congress, and which are not grounded in a sound, = legally-defensible, rational basis.

Now, Reilly=20 v. OPM, decided July 15, 2009 by the = United=20 States Court of Appeals for the Federal Circuit, = has=20 toppled another idol of a false standard imposed = by OPM:=20 that medical documentation which post-dates = separation=20 from Federal Service may be considered = near-irrelevant=20 in evaluating and reviewing a Federal disability = retirement application.

This has = never made=20 sense, for at least 2 reasons: First, since a = person is=20 allowed to file for Federal disability = retirement=20 benefits within 1 year of being separated from = service,=20 why would medical documentation dated after the=20 separation be considered irrelevant? = Second, and=20 certainly logically connected to the first = reason,=20 medical conditions rarely "appear" suddenly. = Most=20 conditions are progressive and degenerative in = nature,=20 and indeed, that is what the Court in = Reilly=20 argues. "The field of forensic medicine abounds = with=20 examples of subsequent medical examinations = relevant to=20 a prior condition," the Court in Reilly = argued,=20 citing the classic example that "inferences = about prior=20 intoxication can be drawn from blood alcohol = tests=20 conducted at a later time." Further, where=20 "proximity in time, lay testimony, or some other = evidence provides the requisite link to the = relevant=20 period the subsequent evidence can be very = probative of=20 a prior disability."

Thus, what = the Court=20 in Reilly is stating, is that it makes=20 absolutely no logical sense to allow a Federal = or Postal=20 employee under FERS or CSRS to have the legal = right to=20 file for disability retirement benefits within = one (1)=20 year of being separated from service, and yet = have the=20 probative weight of medical reports post-dating = the=20 separation completely undermined by OPM's = baseless=20 assertion that such medical documentation fails = to=20 address the medical conditions during the time = of=20 Federal service.

Here, a = caveat=20 is in order: This is not to = say that=20 medical reports and documentation no longer = needs to=20 address and "relate back" to the period of = Federal=20 service; the disability retirement applicant = still needs=20 to create the tripartite nexus between (a) the = Federal=20 position, (b) the medical condition, and (c) the = inability to perform the essential elements of = (a)=20 because of (b). This obviously requires = medical=20 documentation which "relates back" to the period = of=20 Federal service.

What the = case=20 does do, however, is to reverse = OPM's=20 arbitrary and capricious methodology of = reviewing=20 post-service medical documentation as being = irrelevant=20 and immaterial merely because it fails to = directly=20 address the medical conditions during the time = of=20 Federal Service. Certainly, progressively=20 degenerative conditions can be reasonably argued = to have=20 previously =96 on the spectrum of linear time = =96 impacted=20 and prevented the performance of essential = elements of a=20 job if the doctor can describe the severity of = the=20 present condition and compare it to a prior = point in=20 time =96 during the time of Federal = Service.

Furthermore, = as a=20 practical matter, it is still important to try = and=20 obtain the proper medical documentation during = the=20 period of Federal Service, for pragmatic=20 reasons:

often, health = insurance is an=20 issue, and while reinstatement of health = insurance=20 normally occurs upon approval of a disability=20 retirement application, temporary loss of = health=20 insurance may lead to greater difficulty in = obtaining=20 proper medical documentation from one's = treating=20 doctors, and
doctors often show = some=20 trepidation in "relating back" medical = conditions,=20 supposing it to reflect negatively upon their = medical=20 integrity =96 often a byproduct of having been = subjected=20 to depositions or cross-examinations in other = legal=20 contexts.

=20

In=20 conclusion: Vanieken-Ryals &=20 Reilly are two recent cases which = provide=20 greater legal muscle for the Federal and Postal = employee=20 in filing for Federal disability retirement=20 benefits. They represent needed legal = refinements=20 in the "evolving" process of law. Both = cases=20 strengthen the position of Federal and Postal = employees=20 in filing for disability retirement = benefits. Grant=20 another win for the Federal employee, the law, = and the=20 process of law. Reilly expounds a = rational, logical opinion, citing ample legal = precedents=20 and providing sound reasoning =96 reinforcing = the=20 philosophical view that, indeed, Aristotle was=20 fundamentally right after all -- that man's = essence is=20 still constituted by his rational = nature.

Student: =20 Is it a choice if you can only choose one, = and you=20 are only presented with = one?
Master: =20 Ah, but does the choosing occur in the act, = or in the=20 imagination? Is one limited by what one = sees, or=20 by the unlimited desires of a man=92s=20 = imagination?
= &= nbsp; Koan #233 from Master Todaiji=92s = Personal=20 Notebook

FERS=20 & CSRS Disability Retirement: = Understanding=20 the Complexities of the Law

The law=20 is often a compendium of complexities for the = lay=20 person. Non-lawyers who enter into the = =93arena of=20 law=94 often find it befuddling, confusing, and = moreover,=20 against the very grain of what law is = =93meant=94 to=20 be. Law is meant to provide = =93justice=94. But=20 if Justice is indeed the goal, one must know,=20 understand, and apply the law properly. = This is no=20 less true for those Applicants who are = attempting to=20 obtain disability retirement benefits from the = Office of=20 Personnel Management.

=20 I have written many articles on multiple issues, = over=20 the years, on laws and cases impacting upon = Disability=20 Retirement for FERS & CSRS employees of the = Federal=20 Service. In response to my articles, I = have=20 received many inquiries about the =93meaning=94 = of this or=20 that statement I made, in a particular article I = had=20 written, or in an explanatory statement I = made. =20 Often, I am surprised by the question posed, = which=20 prompts me to ask myself: Did I write so=20 badly? Did I fail to explain myself=20 adequately? Or did the reader = misunderstand what I=20 had written?

=20 The truth is probably a combination of both =96 = that I=20 failed to write clearly and concisely, and the = reader=20 (as a non-lawyer) failed to fully understand = what I=20 meant to convey. This article is meant, on = a=20 microcosmic level, to explain some small part of = the=20 law, and to interpret the language of a case, in = order=20 to help the non-lawyer somewhat understand how = to read=20 into legal language.

=20 In the past, I have often referred to the = benefit of=20 securing the =93Bruner Presumption=94 in a = case. The=20 =93Bruner Presumption=94 is so named from a = Federal Circuit=20 Court case, Bruner v. Office of = Personnel=20 Management, 996 F.2d 290 (Fed. Cir. = 1993). It=20 essentially stands for the proposition that, if = a=20 Federal employee under FERS or CSRS is removed = for his=20 or her medical inability to perform the duties = of his or=20 her position, that such a specified removal = constitutes=20 =93prima facie=94 evidence of entitlement to = disability=20 retirement. Now, one might interpret this = to mean=20 that, because =93prima facie=94 means =93on the = face of it=94,=20 that nothing further needs to be done. = Disability=20 retirement is a =93sure thing=94. Nothing = could be=20 further from the truth. For, in the same = breath=20 that the Merit Systems Protection Board speaks = about the=20 Bruner Presumption, the following = statement will=20 also always appear: =93Notwithstanding the = shifting=20 burdens of production, however, the appellant = retains=20 the burden of persuasion at all times.=94 = Trevan v.=20 OPM, 69 F.3d 520 (Fed. Cir. 1995). = What=20 this means is that, regardless of the = Bruner=20 Presumption, the appellant always has to = provide=20 the underlying medical documentation to show = that he or=20 she was unable to perform the essential elements = of his=20 or her job.

=20 Now, to the above, one might ask: Then, = what is=20 the purpose of the Bruner=20 Presumption? The purpose is = essentially to=20 raise a higher bar against the Office of = Personnel=20 Management. Think about it this way: = at an=20 MSPB Hearing, the Office of Personnel Management = has a=20 right to cross-examine witnesses, have the = Supervisor=20 testify over the telephone, etc., to rebut the=20 Bruner Presumption. In order = to=20 fight against this, the Applicant must present = strong=20 medical evidence anyway, to ensure that the = Judge is=20 persuaded of your medical disability. =

=20 So, is the Bruner Presumption of any = use? =20 The short answer is: Yes. It makes = any=20 effort by the Office of Personnel Management to=20 undermine or attack the employee=92s disability = retirement=20 application much, much harder. Is the=20 Bruner Presumption = necessary? =20 No. Most people don=92t need it, precisely = because,=20 so long as an individual has a supportive doctor = who=20 will provide the necessary nexus between one=92s = medical=20 condition and one=92s positional duties, = there is=20 normally no need for that =93higher bar=94 to = fight against=20 the Office of Personnel Management.

=20 Beyond this, of course, is the question of how = one=20 obtains the Bruner = Presumption. The=20 obvious answer is to be removed for one=92s = =93medical=20 inability to perform=94 one=92s job. = However, most=20 Agency removal actions are not so cooperative, = and that=20 is where people get into trouble. For instance, = what if=20 a person is removed for being excessively = absent, and=20 those absences are as a result of one=92s = medical=20 conditions? Shouldn=92t the Bruner=20 Presumption apply in that instance? = One=20 would think so, because of the logical = connection which=20 should be able to be established. = Unfortunately,=20 however, it is not that easy =96 logic and = logical=20 connections do not necessarily prevail in = arguing for=20 the Bruner Presumption before a Merit Systems = Protection=20 Board Administrative Law Judge. Of course, = an MSPB=20 Administrative Judge is himself/herself = constrained by=20 legal precedents handed down by the Federal = Circuit=20 Courts and other MSPB cases handed down by the = Full=20 Board. For instance, it has become = established=20 precedent that =93removal for extended absences = is=20 equivalent to removal for physical inability to = perform=20 where it is accompanied by specifications = indicating=20 that the decision to remove was based on medical = documentation suggesting that the appellant was = disabled=20 and unable to perform her duties.=94 =20 Ayers-Kavtaradze v. Office of = Personnel=20 Management, 91 M.S.P.R. 397 = (2002) In=20 other words, it is not enough that there exists=20 concurrent medical documentation supporting =96 = outside of=20 the document proposing to remove you =96 that = you had a=20 medical condition; rather, the actual proposal = to remove=20 you must specify within the document of proposed = removal=20 a reference of a disabling medical=20 condition.

As you can see, = the =93arena=20 of legal battles=94 can be a complex maze. = Lawyers=20 who are familiar with Disability Retirement = laws,=20 statutes, procedures and cases, are able to = (hopefully)=20 maneuver around, through, and over the many = legal=20 landmines which present themselves as obstacles = to a=20 Federal or Postal employee who files for = disability=20 retirement benefits under FERS or CSRS. =20

=20 Because Disability Retirement is an important = benefit=20 available to all Federal and Postal employees = who have a=20 minimum of 18 months of Federal Service (for = FERS) and a=20 minimum of 5 years for CSRS employees, it is = crucial to=20 know the governing laws, statutes, procedures = and cases=20 which impact an application. It is an important = benefit=20 which should be looked upon as an investment to = attain a=20 level of financial security, in the event that a = Federal=20 or Postal employee finds that he or she can no = longer=20 perform one or more of the essential elements of = employment. I am an attorney who specializes in=20 obtaining disability retirement benefits for = Federal and=20 Postal employees. To contact me, you may email = me at=20 federal.lawyer@yahoo.com, find me at www.federaldisabilitylawyer.com, or call me at = 1-800-990-7932,=20 to discuss the particulars of your case. =

Sincerely,

Robert R. = McGill,=20 Esquire

The = Law is a web=20 of words, understood by few, practiced by some,=20 diversely impacting many, applying to all, and=20 protecting a universal principle: an orderly = society=20 which ensures freedom. =20

&nbs= p; = ; = = -- Anonymous Lawyer

Legal landmines in Federal = Disability=20 Retirement Law

Law is=20 an evolving process. Statutes are merely = the=20 beginning point. Thereafter, cases are = tried=20 before Judges, and the evolution of the law, = within the=20 context of a particular sector of law, begins to = unfold. As the evolution of law begins to = unfold,=20 the complexity of the legal process becomes more = and=20 more intricately intertwined. A body of = law=20 develops, and grows. Yes, to a great = extent,=20 lawyers create the complexities which grow = within that=20 body of law. The intersecting and = intertwining=20 cases address multiple issues which have been=20 =93litigated=94 through the judicial process of = putting on a=20 case before a Judge. For Disability = Retirement=20 issues, the body of law is created through the = Hearing=20 Process heard before an Administrative Judge at = the=20 Merit Systems Protection Board. =

=20 The complexities which develop over time become = the=20 potential =93landmines=94 in any area of = law. For=20 those Federal and Postal Employees who are = considering=20 applying for disability retirement benefits, = such legal=20 landmines must be carefully negotiated, = maneuvered=20 about, and where necessary, avoided. There = are=20 many issues in the body of law involving = disability=20 retirement, and it is well to be aware of some = of=20 them.

=20 Here is a short compendium of some intertwining = and=20 intersecting issues, extracted from a recent,=20 illustrative case, addressing just a small = portion of=20 the greater =93body of law=94 comprising the = Disability=20 Retirement issues:

n =20 =93Situational=20 Disability=94 issues have always been a = difficult landmine=20 to negotiate around. Often, Federal and = Postal=20 employees are subjected to multiple on-the-job = stresses,=20 from sexual harassment from predatory co-workers = to=20 supervisors with egocentric vendettas; from = workloads=20 and work hours consisting of unreasonable = demands; and=20 numerous other potential contexts which can be = perceived=20 and interpreted as potential =93situational = disability=94=20 scenarios. In a recent case of = Yoshimoto v.=20 OPM, MSPB Docket No. DE-844E-07-0435-I-1 = (June 5,=20 2008), interestingly enough, the origin of the=20 Appellant=92s medical/psychiatric disabilities = stemmed=20 from a long history of suffering a hostile work=20 environment involving physical and verbal sexual = harassment. This type of situation can = often=20 defeat a disability retirement application, = because it=20 sends a =93red flag=94 to OPM if the disability = retirement=20 application focuses upon this aspect of a = case. =20 Now, in all fairness, from OPM=92s perspective,=20 allegations of a hostile work environment can = rarely be=20 confirmed or denied, unless there has been a = judicial=20 finding of facts in a separate legal = forum. Thus,=20 OPM is often befuddled as to what to do with = such=20 allegations. On the other hand, the reason = why OPM=20 will often deny cases which allege or focus upon = medical=20 conditions which arise within the context of a = =93hostile=20 work environment=94 is because the Applicant is = able to=20 perform the actual functions of the particular = job,=20 absent the hostile work = environment. In=20 other words, it becomes an issue of the work=20 environment, and not the medical = condition. In=20 this particular case, however, the MSPB, on a = Petition=20 for Review, found not only that the medical = condition of=20 the Appellant was so severe as to be = incompatible with=20 working in any Post Office setting =96 there was = evidence=20 that she could not hold any jobs outside of the = Post=20 Office, either. Thus, the important point = here was=20 that the Appellant was able to prove that her=20 psychiatric conditions had become much more than = a=20 =93situational=94 condition limited to her = particular=20 hostile work environment =96 something that the = Office of=20 Personnel Management attempted to portray it = as. =20

n =20 Further, the=20 case itself is illustrative of how the law = evolves over=20 time and impacts a case in multiple ways. = For=20 instance, I have previously written (in = articles, blogs=20 and responses to specific questions) of the = significance=20 of the recent case of Vanieken-Ryals v. = OPM, 508=20 F.3d 1034 (Fed. Cir. 2007). In the=20 Yoshimoto case, it is cited multiple = times. =20 It is cited for purposes of refuting OPM=92s = persistent=20 but unfounded assertions that psychiatric = disabilities=20 must be proven by =93objective=94 methods = (thereby=20 propagating the mythical bifurcation between=20 =93subjective=94 and =93objective=94 in = psychiatric medical=20 disabilities). As the Board Members in=20 Yoshimoto observed, the =93absence of = =91objective=92=20 measures or tests as described by OPM is not=20 dispositive.=94 Thus, legal landmines can = take=20 various forms: the Office of Personnel = Management=20 can, and often does, mis-state the applicable = law, and=20 it is up to the Disability Retirement Applicant, = along=20 with his or her attorney, to know the law, point = out the=20 mis-statement or mis-application of the law to = the OPM=20 Representative, and not be fooled into thinking = that=20 merely because the Office of Personnel = Management denies=20 your case and makes statements and assertions = which=20 =93sound legal=94, that your case cannot be = won.

n =20 The = Board in=20 Yoshimoto correctly stated the law, and = rebuffed=20 and refuted OPM=92s multiple arguments, to = include: =20 (A) The mere fact that the origin of one=92s = medical=20 disabilities may be found in the job=92s = inherent=20 stresses, or other factors, does not necessarily = make it=20 a =93situational=94 disability. Thus, the = cause=20 of the condition =93is not relevant in = determining whether=20 an employee is eligible for disability = retirement,=94 but=20 further (B) it is instead =93whether the = condition=20 prevents the employee from rendering useful and=20 efficient service in her position.=94 (Citing = Marucci=20 v. Office of Personnel Management, 89 = M.S.P.R. 442=20 (2001), as well as 5 C.F.R. Section 844.103(a) = as=20 relevant authorities). Thus, OPM was = trying to get=20 by with multiple arguments to defeat this = particular=20 disability retirement application, and = attempting to=20 side-step the central one: Did Ms. = Yoshimoto=92s=20 medical conditions prevent her from performing = one or=20 more of the essential elements of her job, = regardless of=20 whether the origin and inception of the medical=20 disabilities occurred as a result of her = work-place=20 hostilities? OPM was obviously successful=20 throughout the Initial Application Stage, the=20 Reconsideration Stage, and even at the Hearing; = it was=20 only upon a Petition for Review of the Initial = Decision=20 that OPM=92s denial of disability retirement = benefits was=20 finally overturned and rejected.

n =20 Of = further=20 interest is a peculiar statement made = by the=20 Board towards the end of the Yoshimoto=20 case. An issue which had been brought up = concerned=20 the fact that the Appellant had been denied = benefits=20 both by the Social Security Administration as = well as by=20 the Office of Worker=92s Compensation = Programs. Now,=20 I have always argued, and have been consistently = successful in arguing, that a negative decision = by=20 either SSA or OWCP has no impact whatsoever upon = a=20 disability retirement application. At the = same=20 time, however, I have argued that when an SSA = case has=20 been approved, it must be looked upon with = mandated=20 favor per Trevan v. Office of = Personnel=20 Management, 69 F.3d 520, 526-27 (Fed. Cir. = 1995),=20 where the Federal Circuit Court found that in = making a=20 determination of eligibility for disability = retirement=20 under FERS, the Board must consider an = award of=20 SSA disability benefits together with medical = evidence=20 provided by the appellant to OPM, and other = evidence of=20 disability. Here, however, the Board = makes a=20 peculiar statement. In reading and = interpreting=20 Trevan, the Board stated: =93in = considering a=20 disability retirement application under FERS, = OPM and=20 the Board must consider an award of Social = Security=20 disability benefits, but may find that this = evidence is=20 outweighed by the medical evidence.=94 = This is the=20 first time that I have seen a denial of SSA = benefits=20 being used as a =93sword=94, and the Board seems = to give=20 some credence and weight to that prospect. = We=20 shall have to =93wait and see=94 if such an = argument is used=20 in the future.

n =20 And, = finally,=20 the Board cites Suter v. Office of Personnel=20 Management, 88 M.S.P.R. 80 (2001), for the=20 proposition that =93OWCP=92s determination that = an appellant=20 does not qualify for compensation is not=20 dispositive of the appellant=92s rights under = the=20 disability retirement statutes,=94 and =93OPM = and the Board=20 must consider an award or a termination of OWCP=20 benefits, but may find that this evidence is = outweighed=20 by other medical evidence.=94 Again, a = negative OWCP=20 determination is being used as a =93sword=94, = whereas,=20 normally, OWCP determinations have no impact = upon=20 disability retirement issues unless there = has=20 been an approval.

=20 Disability Retirement Law involves a complexity = of=20 issues which cannot easily be understood or=20 applied. A review of the case of = Yoshimoto=20 is illustrative and instructive in how, within = the span=20 of a single case, multiple issues arise, any one = of=20 which can defeat a Federal Disability Retirement = application. Disability Retirement is a benefit=20 available to all Federal and Postal employees = who have a=20 minimum of 18 months of Federal Service (for = FERS) and a=20 minimum of 5 years for CSRS employees. It = is an=20 important benefit which should be looked upon as = an=20 investment to attain a level of financial = security, in=20 the event that a Federal or Postal employee = finds that=20 he or she can no longer perform one or more of = the=20 essential elements of employment. I am an = attorney=20 who specializes in obtaining disability = retirement=20 benefits for Federal and Postal employees. = To=20 contact me, you may email me at federal.lawyer@yahoo.com or = call me at=20 1-800-990-7932, to discuss the particulars of = your=20 case.

Sincerely,=20

Robert R.=20 McGill, Esquire

FERS & CSRS Disability = Retirement:=20 The Case Does Not End Until A Final Order Is = Issued And=20 The Time For Appeals Has = Expired

-- = The myth of=20 the groundhog has long been lost, of how it was = once the=20 most beautiful creature in the kingdom, and all = the=20 animals knelt in awe and envy, until one day the = groundhog, whose fidelity to a single mate for = life was=20 known far and wide, was subjected to the = cruelest of=20 crimes: his wife was kidnapped, and the ransom = note read=20 that she had been buried alive, and it was up to = the=20 husband to dig throughout the ends of the earth = before=20 the last suffocating breath of the fair lady = would=20 expire; and so the groundhog determined to dig, = and dig,=20 and dig, and to this day it continues in its=20 perseverance and persistence, revealing the = eternal=20 love, fidelity, and search throughout the = kingdom, for=20 the love forever lost, but never forgotten. =

-- From=20 Stories Long Forgotten

=20 In Law, not only is persistence necessary (as = well as=20 being a virtue), it is necessary in order to = prevail. It=20 is always disheartening to go up against a = governmental=20 Agency; it is even harder when a person suffers = from a=20 medical condition which impacts one=92s physical = abilities, or perhaps one=92s emotional or = cognitive=20 capabilities -- or both. The process of = obtaining=20 disability retirement under FERS or CSRS from = the Office=20 of Personnel Management is a long road -- at the = Initial=20 Application Stage, it will often take from 8 - = 10=20 months. A thumbnail sketch of why it takes this = long is=20 as follows: first, obtaining the proper medical=20 narratives and records; formulating the = Applicant=92s=20 Statement of Disability; preparing a = coordinating legal=20 memorandum; filing through the Agency and = obtaining the=20 Supervisor=92s Statement and other necessary = forms=20 completed; routing it through other channels = until=20 arrival at Boyers, PA; assignment of a CSA = number =96 and=20 finally to the Office of Personnel Management in = Washington, D.C. Then, if it is denied at the = Initial=20 Stage, the right to Request Reconsideration; = then, if it=20 is denied at the Reconsideration Stage, the = right to an=20 appeal to the Merit Systems Protection Board = (MSPB);=20 then, even if the Applicant prevails at the MSPB = Stage=20 of the process, there is always the possibility = that the=20 Office of Personnel Management may file a = Petition for=20 Review with the full Board of the Merit Systems=20 Protection Board.

It is=20 important when undertaking the process of filing = for=20 disability retirement, to be mentally prepared = to go the=20 distance. Part of the =93distance=94 that a = person must be=20 prepared to undergo, is to be denied. Mentally, = that is=20 sometimes difficult to be prepared for. This is=20 particularly true of a Disability Retirement = Applicant,=20 precisely because of the impending and onerous = financial=20 considerations =96 for a disability annuity can = often mean=20 the difference between financial security and = financial=20 ruination. And, indeed, an attorney who = represents an=20 Applicant for Disability Retirement can cushion = the=20 impact of a denial by mentally and emotionally = preparing=20 the applicant, by objectively assessing the = chances of=20 approval, and providing a wider perspective as = to the=20 legal and medical requirements necessary to get = an=20 approval at the next stage.

What=20 is disheartening to see, is when an individual = almost=20 went the full distance =96 but fell just short; = as a=20 result, a lifetime annuity was lost forever. =

This=20 is precisely what appeared to happen in the = recent Merit=20 Systems Protection Board Case of Sylvia M. = Reilly=20 v. Office of Personnel Management, Docket = No.=20 DE-831E-07-0359-I-1, decided on March 14, 2008. = In=20 Reilly v. OPM, the Office of Personnel = Management=20 denied the disability retirement application of = Ms.=20 Reilly; it then denied her application again at = the=20 Reconsideration Stage =96 but she won the = case=20 before the Administrative Judge at the Merit = Systems=20 Protection Board. The problem, however, is that = after=20 winning at the MSPB level, the Office of = Personnel=20 Management then filed a Petition for Review = (PFR) -- and=20 the =93appellant did not respond to the = PFR=94 (at=20 page 2 of the decision, emphasis added) Now, = there are=20 many issues which are discussed in the decision = issued=20 by the Board, including medical evidence showing = disability after the Appellant=92s date of = resignation and=20 medical notations that minimized the severity of = her=20 medical condition. However, it is clear = why the=20 Board=92s decision is so one-sided =96 since = nobody=20 responded to the Petition for Review, and since = nobody=20 countered and refuted the statements of the=20 representative from the Office of Personnel = Management,=20 there was nothing else that the Board could have = done,=20 except to accept the one-sided statements of = OPM. Think=20 about this logically: if you have 2 people = debating an=20 issue, and only one of them shows up, who wins = the=20 debate? The Full Board had no choice =96 and, = indeed, they=20 did what one would expect: the victory won at = the=20 Hearing level was reversed, and the disability=20 retirement benefits that had been granted =96 = after such a=20 long and hard-fought battle =96 was lost. =

=20 Persistence and Perseverance means one must stay = in the=20 battle throughout the entire process. To give up = just=20 when victory is in hand, is the same as not = having tried=20 at all. In this respect, it is important to have = an=20 Attorney represent an individual in obtaining = disability=20 retirement benefits from the Office of Personnel = Management. In pursuing one=91s entitlement to = disability=20 retirement benefits, one must always take the = long-term=20 perspective, and pursue that right with = aggressiveness=20 and persistence. Like the groundhog who = eternally=20 pursues, and applicant must be ready to =93go = the=20 distance=94. It is an investment for one=91s = future, and it=20 is important to pursue your future investment=20 aggressively, and to sustain your investment for = a long=20 time into the future.

For=20 more information, contact me in one of these = ways:=20

View my = website at www.FederalDisabilityLawyer.com=20
Email me at = federal.lawyer@yahoo.com
Call me at=20 1-800-990-7932

Sincerely, =

Robert R. = McGill,=20 Esquire

Important Cases which = Impact=20 Disability Retirement Applications

What is=20 'history' but the story of the victorious? It is = the=20 culmination of the incremental and persistent = drive of=20 countless and nameless individuals; the residue = of an=20 onslaught of thousands of nameless soldiers who = died=20 before the final wave defeats an army; the = extraordinary=20 sacrifice of ordinary individuals, the true = heroes of=20 history; for how many unheralded soldiers who = merely do=20 their duty, how many nameless tombstones helped = secure=20 victory? We shall never know -- only that = persistence in=20 the pursuit of excellence is never a lost cause. =

-- From History, A Long-Term = Approach

The recent case of=20 Vanieken-Ryals v. OPM, U.S. Court = of=20 Appeals for the Federal Circuit, decided on = November 26,=20 2007, cannot be overemphasized for its = importance to the=20 disability retirement process. It is, in my = view, a=20 landmark case which will greatly advance = potential=20 disability retirement applicants who base their=20 disabilities upon psychiatric conditions. In=20 representing my clients, I have repeatedly = argued that=20 the Office of Personnel Management's insistence = upon=20 "objective medical evidence", especially when it = involves clients who suffer from psychiatric = medical=20 conditions (e.g., Major Depression, Anxiety, = panic=20 attacks, Bi-Polar Disorder, etc.) is not only = unfair,=20 but irrational.

My past arguments were met = with=20 varying degrees of success, but the essential = argument=20 that I made over the years went something like = this:=20 Psychiatric disabilities by their inherent = nature are=20 "subjective", because there is no diagnostic = test which=20 can objectively determine symptoms of = psychiatric=20 disabilities. Indeed, while there are multiple=20 psychological tests which can be administered, = the=20 results are still based upon the subjective = responses of=20 the patient. Furthermore, a doctor=92s clinical=20 examination, long-term evaluation by a treating = doctor,=20 and the consistent assessment by one's treating = doctor,=20 provide for the best and most 'objective' basis = for a=20 valid medical opinion. Further (my argument = would often=20 go), even physical disabilities (like a bulging = disc)=20 which can be ascertained by an MRI, cannot = provide a=20 conclusive basis to determine the extent of = one=92s pain=20 or inability to perform certain tasks, for pain = is by=20 definition a "subjective" condition; there are, = indeed,=20 some who have bulging discs but have very little = pain,=20 and others who have a minimal bulging disc which = completely debilitates the individual. These = were=20 rational arguments made, and while fairly = persuasive=20 when combined with case-law citations, the force = of such=20 arguments often depended upon the receptiveness = of OPM=92s=20 representative or, at the Merit Systems = Protection Board=20 level, the receptiveness of the Administrative = Judge.=20

With the = opinion=20 expressed by the Court in Vanieken-Ryals = v.=20 OPM, we no longer need to rely upon the = arbitrary=20 receptiveness of an individual, for we have a = firm legal=20 basis to counter the irrational basis that OPM = routinely=20 gives in their denials based upon an=20 objective/subjective distinction. =

The Court in = Vanieken-Ryals=20 made several important declarations in their = opinion:=20

1. = That=20 OPM can no longer make the argument that an = Applicant=92s=20 disability retirement application contains = "insufficient=20 medical evidence" because of its lack of = "objective=20 medical evidence", especially when the = application is=20 based upon psychiatric medical conditions. This, = because=20 there is no statute or regulation which "imposes = such a=20 requirement" that "objective" medical evidence = is=20 required to prove disability.

2. = As long=20 as the treating doctor of the disability = retirement=20 applicant utilizes "established diagnostic = criteria" and=20 applies modalities of treatment which are = "consistent=20 with 'generally accepted professional = standards'", then=20 the application is eligible for consideration. =

3. = It is=20 "legal error for either agency (OPM or the MSPB) = to=20 reject submitted medical evidence as entitled to = no=20 probative weight at all solely because it lacks=20 so-called 'objective' measures such as = laboratory=20 tests."

Ultimately, for purposes = of this=20 article, which is (hopefully) read by many = non-lawyers,=20 the essence of the Vanieken-Ryals case is that = it=20 exponentially strengthens a disability = retirement=20 application based solely upon psychiatric = medical=20 disabilities. The case itself contains many = other=20 elements which provide for strong ammunition, = when used=20 wisely and with knowledge, for the disability = retirement=20 practitioner of law. It makes a strong and = unequivocal=20 statement that OPM=92s and MSPB=92s adherence to = a rule=20 which systematically demands for "objective" = medical=20 evidence and refuses to consider "subjective" = medical=20 evidence, is "arbitrary, capricious, and = contrary to=20 law." This is indeed strong language which can = be used=20 as a sword to prevail in a disability retirement = case.=20

Persistence in the pursuit = of a=20 client's right and entitlement to disability = retirement=20 benefits is never a lost cause, and those who = have=20 hesitated from filing for disability retirement = because=20 they suffer from purely psychiatric medical=20 disabilities, or from disabilities which are = often=20 harder to "objectively" justify (e.g., = Fibromyalgia,=20 Chronic Fatigue Syndrome, etc.) have a greater = chance=20 because of the bold legal opinion as expressed = by the=20 Court in Vanieken-Ryals.

This is a landmark case of = incalculable importance and impact, which cannot = be=20 overemphasized. I have already cited the case on = numerous occasions at the MSPB level, and the = fact that=20 it is a Court of Appeals decision makes it = binding upon=20 all MSPB judges. It gives greater hope for those = who=20 suffer from Psychiatric Disabilities alone, that = their=20 cases will not somehow be looked upon with less = chance=20 of approval than a person with a physical = medical=20 condition.

Other case=20 updates: While Vanieken-Ryals was = not a=20 case that I represented, there are some = case-updates=20 from my own files which may be of some interest = to my=20 readers. All information provided is already in = the=20 public record of the written Opinion of the = Judges, and=20 there is no information revealed here that = violates my=20 attorney-client confidentiality. I wish that I = could=20 claim that I win all of my cases; I cannot.=20 However, it is my firm belief that = persistence in=20 the pursuit of a client=92s disability = retirement=20 application is never a lost cause, and here are = three=20 cases which reinforce my philosophy: =

1. = Tucker v. OPM = (DA-844E-07-0314-I-1) =20 The Office of Personnel Management kept denying = Ms.=20 Tucker=92s disability retirement application. = This case=20 was finally won at the Hearing level. However, = the=20 Office of Personnel Management filed a Petition = for=20 Review. I responded with -- among other = arguments -- the=20 fact that the Office of Personnel Management = failed to=20 make any legal arguments showing that the = Hearing Judge=20 committed any legal errors. The Full Board = rejected=20 OPM=92s Petition and affirmed the decision in my = favor. No=20 further appeals have been filed. I am happy for = my=20 client that after so many years, she will now = get her=20 disability retirement. Persistence in rebutting = OPM=92s=20 attempt to reverse a Hearing Judge=92s decision = is=20 never a lost cause.

2. = Hartsock-Shaw v. OPM=20 (PH-844E-06-0658-I-1) This one = is the=20 converse of the previous one, in that the = Hearing Judge=20 initially affirmed OPM=92s denial of my = client=92s=20 disability retirement application. I filed a = Petition=20 for Review, because I believed the Judge was = wrong in=20 not applying the Bruner Presumption in this = case. The=20 Full Board vacated the Initial Decision and = Remanded the=20 case back to the Hearing Judge, requiring = further=20 testimony on the issue of whether the Bruner = Presumption=20 should have been applied. We were able to = factually=20 prove that the circumstantial evidence = necessitated the=20 finding that my client was removed for her = medical=20 inability to perform her job, even though there = was no=20 final letter of removal issued by the Postal = Service=20 that we could find. The Judge sided with us, = reversed=20 her prior decision, and granted my client her = disability=20 retirement benefits. Persistence paid, and = persistence=20 in the pursuit of a disability retirement claim = is never=20 a lost cause.

3. = Heiter v. OPM = (AT-0831-07-0435-I-1) =20 This is an interesting case. It has to do with a = client=20 who lost his disability retirement benefits = because he=20 tried to go to work for Federal Express. He was = being=20 punished for trying. One would think that a = disability=20 retirement annuitant would be commended and = praised for=20 trying -- but, no, because he applied for, got = the job=20 with, and then quit, a job with Federal Express, = he was=20 deemed to have been =91less than honest=92 for = having=20 retired on disability from a Postal Job, and = therefore=20 OPM cut off his disability retirement benefits. = We went=20 to Hearing on the matter; the doctor testified=20 unequivocally that he couldn=92t do the job -- = neither the=20 Federal Express one nor his prior Postal job -- = but he=20 couldn=92t fault his patient for having tried. = OPM made a=20 big deal about the fact that my client = periodically went=20 bowling. The Judge ruled in OPM=92s favor. I = filed a=20 Petition for Full Review. The Board reversed the = Initial=20 Decision, and reinstated my client=92s = disability=20 retirement annuity.

Here again, persistence = pays,=20 and persistence in pursuit of a disability claim = is=20 never a lost cause.

I am an attorney who = specializes=20 in representing Federal and Postal employees to = obtain=20 and retain disability retirement benefits. In = pursuing=20 one=91s entitlement to disability retirement = benefits, one=20 must always take the long-term perspective, and = pursue=20 that right with aggressiveness and persistence. = It is an=20 investment for one=91s future, and it is = important to=20 pursue your future investment aggressively, and = to=20 sustain your investment for a long time into the = future.=20

For more information, = contact me=20 in one of these ways:

View my website at http://www.federaldisabi= litylawyer.com/=20
Email me at mai= lto:federal.lawyer@yahoo.com?subject=3DFederal-Disability=20
Call me at 1-800-990-7932

Sincerely,

Robert R. McGill, Esquire

It is said that the = giraffe is=20 the funniest-looking of all animals, with its = long neck=20 and long legs. It was originally named = camelopardalis -- a description = combining two=20 animals, the camel and the leopard, because of = its=20 physical shape and appearance. Some would pity = such an=20 animal, which does not have its own identity, = but is=20 known by a combination of two other animals. But = such=20 pity would be unfounded, for one thing is clear: = its=20 long legs make it a fast runner to outrun its = enemy; its=20 strong legs can kick with such force as to = shatter the=20 skull of a charging lion; and its long neck has = the=20 advantage of seeing its enemies at a greater = distance.=20 All in all, while one may pity the appearance of = a=20 giraffe, appearances are often illusory, and in = this=20 instance, its gawky appearance belies its = effectiveness=20 in defending itself, making it a formidable = animal which=20 is always prepared to defend itself = aggressively.=20
-- From "Animal Facts and=20 Perspectives"

In this = article, I=20 will be addressing two separate issues: First, = the issue=20 of OPM=92s Medical Questionnaire, and next, the = issue of=20 Accommodations.

OPM=92s Medical Questionnaire =

At=20 each stage of the process, an annuitant must = always see=20 his or her monthly annuity as a right which must = be=20 fought and protected. In recent months, I = have=20 seen an increase in cases where an individual = has been=20 an annuitant, but has lost his or her annuity = because=20 OPM=92s Medical Questionnaire (sent out to = selected=20 annuitants every two years) was not taken = seriously.=20 Whether the increase is by coincidence -- that a = greater=20 number of annuitants failed to respond to the = Medical=20 Questionnaire seriously, or because the Office = of=20 Personnel Management is scrutinizing annuitants = more=20 carefully -- is irrelevant; what is relevant is = that,=20 whether you are fighting to obtain your = disability=20 retirement, or fighting to keep your = disability=20 annuity, the approach should always be = consistently the=20 same: be prepared to defend your disability = annuity=20 aggressively.

Some=20 basic rules in responding to OPM=92s Medical=20 Questionnaire:

Rule=20 #1: Take it seriously. Yes, = the four=20 questions seem fairly straightforward and = innocuous: Get=20 your treating doctor to provide current clinical = findings based upon a recent examination; get a = current=20 diagnosis; a current prognosis; and finally, a = clinical=20 assessment of risk of injury or hazard to self = if you=20 returned to your former job. This all sounds = simple=20 enough, and it is, if you follow the first rule: = take=20 it seriously.

Rule=20 #2: Don=92t have your doctor send in = the=20 updated medical report directly to OPM = without=20 letting you first see it. I have represented = more people=20 for breaking this rule. Think about it -- why = would you=20 allow a report to be sent to OPM without first = reviewing=20 it? Take responsibility; protect your disability = annuity. Make sure the doctor is addressing the = issues=20 that need to be addressed =96 and properly. =

Rule=20 #3: Make sure that your doctor = addresses the=20 specific medical conditions for which you = obtained your=20 disability retirement. While you may = have had 5=20 different disabilities that impacted your = ability to=20 perform your job when you first applied, when = the Office=20 of Personnel Management grants you your = disability=20 retirement, if the first one listed on your = application=20 qualifies you, they will grant you the = disability=20 retirement based upon that first disability, and = will=20 not proceed to consider the remaining 4 = disabilities. In=20 responding to OPM=92s Medical Questionnaire, the = disability annuitant must establish that he/she = suffers=20 from the same disability upon which the = disability=20 retirement was based, and that he remains unable = to=20 perform the duties of the last position he = occupied=20 prior to being granted disability retirement, or = that=20 his condition is incompatible with useful and = efficient=20 service or retention in the position. See = Tompkins v.=20 Office of Personnel Management, 72 M.S.P.R. = 400, 404=20 (1996); Prestien v. Office of Personnel=20 Management, 8 M.S.P.R. 698, 704-05 (1981). = Further,=20 an annuitant is not entitled to continuation of=20 disability retirement simply on the basis that = his=20 physical condition is unchanged since he was = granted=20 disability retirement, where present medical = evidence=20 does not establish that he is disabled. See = Dougherty=20 v. Office of Personnel Management, 36 = M.S.P.R. 117,=20 121 (1988). When I have represented a client and = obtained disability retirement for my client, I = send out=20 a letter apprising the client of his future = rights and=20 obligations -- one of them being, to keep in = regular=20 contact with his treating doctor, so that when = or if a=20 Medical Questionnaire is received, there is = already an=20 established doctor-patient relationship, and you = don=92t=20 go about scrambling to find a doctor who is = willing to=20 write a responsive report to the Medical = Questionnaire.=20

=20 Finally, Rule #4: Keep it = simple.=20 The doctor=92s response to OPM=92s Medical = Questionnaire=20 need not be lengthy and complex: indeed, it can = be a=20 single paragraph, and refer to a recent = examination, and=20 include treatment or office notes, and simply = state:=20 Current diagnosis; symptoms; prognosis; and a = statement=20 that =93X = is still=20 disabled based upon medical condition Y from his = former=20 job as a ________, and cannot go back to his = former job=20 because of his medical = conditions.=94

Thus,=20 to reiterate: Take the OPM Medical Questionnaire = seriously; keep in regular contact with your = doctor;=20 make sure the doctor addresses the medical = conditions=20 that you were found to be disabled for; and = don=92t allow=20 the doctor to send it directly to OPM without = first=20 reviewing it.

=20 Second Issue:=20 Accommodations

=20 Recent cases by the Merit Systems Protection = Board=20 continue to affirm the very important legal = principle of=20 protecting Federal and Postal employees from = being=20 assigned ad hoc, or =93made-up=94 jobs, while still = being slotted=20 in the original position, as reflected in = one=92s PS or SF=20 form 50. Just because you are offered a = =93modified = position=94 that appears to be = =91official=92, if you haven=92t been = reassigned=20 to a vacant position that actually exists, then = you are=20 still eligible for disability retirement. = Don=92t be=20 fooled. In the recent case of Cadman v. = OPM,=20 Docket No. CH-844E-07-0002-I-1, the Merit = Systems=20 Protection Board, upon a Petition for Review by = the=20 Appellant, again revisited this issue, and again = referred to the important case of Ancheta v. = Office=20 of Personnel Management, 95 M.S.P.R. 343 = (2003). In=20 Ancheta, the Board held that a modified = job in=20 the Postal Service that does not =93comprise the core = functions of=20 an existing position=94 is not a =93position=94 or a =93vacant = position=94 for purposes of = determining=20 eligibility for disability retirement. The Board = noted=20 that a =93modified=94 job in the Postal = Service may=20 include =93'subfunctions=92 = culled from=20 various positions that are tailored to the = employee=92s=20 specific medical restrictions,=94 and thus may not = constitute=20 =93an = identifiable=20 position when the employee for whom the = assignment was=20 created is not assigned to those = duties.=94 Id., at p. 14. The = Board thus=20 suggested that a =93modified=94 job in the Postal = Service=20 generally would not constitute a =93position=94 or a =93vacant = position.=94 Id. Thus, what the = Board in=20 Ancheta was saying, and reaffirmed and = reiterated=20 in Cadman, is that the =93made-up=94 job that the Postal = Service puts=20 on an =93official-looking=94 Modified Job Offer = Sheet, is in=20 all likelihood not an accommodation. This is = true of=20 jobs in non-Postal Federal Agencies, also. =

The=20 Board=92s holdings in Cadman and = Ancheta,=20 and the long line of such legal reasonings, = clearly=20 strengthen Postal and Federal employees=92 = rights=20 concerning disability retirement, when placed in = the=20 context of longstanding law as held by the = Federal=20 Circuit Court in Bracey v. Office of = Personnel=20 Management, 236 F.3d 1356, 1358 (Fed. = Cir.=20 2001). I have previously addressed this issue in = my=20 other articles, of course, but let me reiterate = that in=20 Bracey, the Federal Circuit Court = delineated and=20 outlined the applicable provisions governing = disability=20 retirement, stating that "the pertinent OPM = regulation=20 elaborates on the statutory definition by = providing that=20 an employee is eligible for disability = retirement only=20 if (1) the disabling medical condition is = expected to=20 continue for at least one year; (2) the = condition=20 results in a deficiency in performance, conduct, = or=20 attendance, or is incompatible with useful and = efficient=20 service or retention in the employee=92s = position; and (3)=20 the agency is unable to accommodate the = disabling=20 condition in the employee=92s position or in an = existing=20 vacant position." In=20 Bracey, the Court clearly stated = that an=20 employee must be reassigned to a "vacant" position, and not one = which was=20 merely "made=20 up", and = the=20 reasoning of the court is clear: the Court = Stated:=20

=20 "We Agree = with Mr.=20 Bracey that OPM's argument fails, because the = term=20 =91vacant position=92 in section 8337 refers to = an=20 officially established position that is graded = and=20 classified, not to an informal assignment of = work that=20 an agency gives to an employee who cannot = perform the=20 duties of his official position. A 'position' in = the=20 federal employment system is required to be = classified=20 and graded in accordance with the duties,=20 responsibilities, and qualification requirements = associated with it."=20 Id. at p. 1359

=20 Further, the Court went on to state that the = term=20 "vacant=20 position" = means=20 "something = that is=20 definite and already in existence rather than an = unclassified set of duties devised to meet the = needs of=20 a particular employee who cannot perform the = duties of=20 his official position." Id. at 1360. =

=20 Putting Bracey, Ancheta, and = Cadman=20 together, Federal and Postal employees have a = formidable=20 argument which protects their disability = retirement=20 rights: When you become medical unable to = perform one or=20 more of the essential elements of you job, as = outlined=20 in your position description, Agencies cannot = leave you=20 in the same job slot and make up different = things for=20 you to do. The idea of =91accommodation=92 is a = term of art,=20 and must not be viewed in the way that the = =91general=20 public=92 might view it: if you have a medical = condition=20 or disability, and your employer says that the = Agency=20 has =91created=92 a position that somehow does = away with=20 those essential elements of your job that you = cannot do=20 anymore, that is NOT an accommodation. In fact, = an=20 accommodation is the very opposite: it is where = the=20 Agency provides some means such that you CAN = continue to=20 do all of the essential elements of your job.=20

I=20 know that I keep reminding you of this, but I = think that=20 it is worth repetitive reminders: Disability = retirement=20 is a benefit that all Federal and Postal = employees=20 signed onto when you became employed. Many = private=20 sector jobs don=92t offer this benefit, but = then, such=20 private sector jobs of equivalent positional=20 requirements often pay more in base salaries. It = is one=20 of the benefits you acquired -- a right -- in = the event=20 of a medical condition or disability which = prevents you=20 from continuing in your career. As such, when = you can no=20 longer continue in your Federal or Postal job, = you must=20 look upon disability retirement as a right and = an=20 investment for your future -- one which must be=20 aggressively sought after, and once obtained, = protected=20 with similar diligence and aggressiveness. =

I am=20 an attorney who specializes in representing = Federal and=20 Postal employees to obtain and retain disability = retirement benefits. Like the giraffe, you = cannot allow=20 for appearances to fool you; you must always and = aggressively protect your rights and future. The = leopard=20 is known for quickly and aggressively capturing = its=20 prey; the camel is known for long and sustained = trips.=20 You need to be both a leopard and a camel =96 to = pursue=20 your future investment aggressively, and to = sustain your=20 investment for a long time into the future. =

For=20 more information, contact me in one of these = ways:=20

View my = website at www.Federaldisabilitylawyer.com=20
Email me at = DisabilityAtty@msn.com =
Call me at=20 1-800-990-7932

Sincerely, =

Robert R. = McGill,=20 Esquire

The General was = informed that the=20 trek through the desert would take five days. = The=20 soldiers were well-rested; their swords were = sharpened;=20 the spears were repaired; the horses were = re-shoed;=20 enough food was gathered. The Army marched forth = through=20 the scorching desert sands, under the heat of an = unforgiving sun. Many years later, the skeletal = remains=20 of a once mighty army were discovered. The army = had=20 perished, because they had failed to provide for = a basic=20 necessity -- water.

-- From = "Stories=20 Long Forgotten"=20

In = Filing for=20 Disability Retirement, Remember the=20 Basics
Posted on May 7, 2007 =

In the opening = sentence=20 of Davis v. the Office of Personnel = Management,=20 PH-844E-06-0242-I-1, the Merit Systems = Protection Board=20 reminds us all that the "burden of proving = entitlement=20 to a retirement benefit is on the applicant..." = In past=20 articles, I have discussed a variety of issues, = from=20 important legal principles based upon = Bruner v.=20 OPM, to showing how to build the "proper = bridge"=20 in preparing a disability retirement = application. In=20 preparing a disability retirement application, = however,=20 remember to always satisfy the "basics", because = if you=20 fail at the basic level, you will never get to = the=20 =93substantive=94 level to argue your case. =

=20 Davis is a case about a disability = retirement=20 applicant whose application was denied at the = first=20 Stage (the "initial application stage") because = she "did=20 not present any medical evidence to support her = claim."=20 Strike One -- how can you file a medical = disability=20 retirement application without any medical = evidence?=20

Next,=20 Ms. Davis failed to file her "Request for=20 Reconsideration" within the 30-day period. She = filed it=20 5 days late. Strike Two -- you won=92t even be = able to=20 argue the substance of your disability = retirement case=20 if you don=92t take care of the "basics" -- like = filing=20 your Request for Reconsideration in a timely = manner. In=20 OPM=92s denial letter, it clearly stated: "Your = Request=20 for Reconsideration must be received by OPM = within 30=20 calendar days from the date of your initial = denial=20 letter." Ms. Davis had no excuse.

Now,=20 every now and then -- but very, very rarely -- = an=20 exception will come along. Such was the case in=20 Goodman v. Office of Personnel = Management,=20 100 M.S.P.R. 43 (2005), which was cited as a=20 distinguishing case by the Board. In = Goodman,=20 multiple factors allowed the appellant to be = excused for=20 her tardiness -- including, being misled by OPM = verbally=20 over the telephone; receiving the denial letter = some=20 three weeks after being postmarked (thereby = leaving her=20 with only a week to respond); and being a = quadriplegic=20 who had to rely upon others to assist her in = responding.=20 Be aware: only under the most exceptional of=20 circumstances will being late in responding be = excused.=20 You must take care of the basics, before going = on to the=20 substance of a case.

Ms.=20 Davis filed an appeal to the Full Board. Her = appeal was,=20 as you might guess, denied. The Board stated = that in=20 cases such as this, where Ms. Davis "fails to = show that=20 she was not notified of the deadline and was not = otherwise aware of it, or that she was prevented = by=20 circumstances beyond her control from making the = request=20 within the time limit, we will not reach the = issue of=20 whether OPM was unreasonable or abused its = discretion in=20 denying her untimely request for = reconsideration."=20 (italics added).

=20 Strike three. Ms. Davis is out. As I have = reiterated=20 throughout this article, unless you take care of = the=20 basics, you cannot even get to the substance of = your=20 disability retirement claim. Like the parable of = the=20 mighty army which could defeat its enemy, that = army=20 could not survive to fight the battle unless it = took=20 care of a basic need -- water for its troops to = cross=20 the scorching desert to meet its enemy. It = failed to=20 take care of the basics.

In=20 life, we are all busy doing multiple things, and = when a=20 Federal or Postal Employee comes to a point in = his or=20 her life where filing for disability retirement = becomes=20 a necessity, it is often a good idea to hire an = attorney=20 -- not only to ensure that the "basics" are = taken care=20 of, bur further, to make sure that you get the=20 opportunity to argue the substance of your = particular=20 case. My name is Robert R. McGill, Esquire. I am = a duly=20 licensed Attorney who specializes in = representing=20 Federal and Postal Employees, to obtain = disability=20 retirement benefits through the Office of = Personnel=20 Management. If you would like to discuss your = particular=20 case, you may contact me at = 1-800-990-7932 or=20 email me at DisabilityAtty@msn.com, = or visit=20 my website at www.Federaldisabilitylawyer.com.=20

As an = aside, let me=20 point out some other "basics":

=20 1. Remember that you have one (1) year = from the=20 date you are separated from service to file for=20 disability retirement. The one (1) year date = does not=20 begin when you stop working; it doesn=92t begin = when you=20 get placed on LWOP; it doesn=92t begin from the = time you=20 get disabled. It begins from the date you are = separated from Federal Service.

=20 2. For my clients (and those who are not = my=20 clients) whom I got disability retirement for -- = remember that you are allowed to get another job = and=20 make up to 80% of what your position = currently=20 pays, in addition to the disability annuity = you are=20 receiving. It is earned income that counts = -- not=20 rental income, not investment income, and = certainly not=20 your disability income.

=20 3. A teaser -- I will probably = address this=20 issue in my next article -- the Office of = Personnel=20 Management seems to, more recently, be = scrutinizing=20 those who are already receiving medical = disability=20 retirement benefits. For those of my clients = (and those=20 who are not my clients) who receive disability=20 retirement, remember to take OPM=92s Medical = Questionnaire=20 seriously. I have had more cases than = usual where=20 disability annuitants have had their disability = income=20 discontinues. More on this later....

Robert R. = McGill,=20 Esquire

Disability=20 Retirement and the Agency Cover of=20 Accommodation

October 26,=20 2006

=93A man who = acts without=20 knowledge is a man who merely acts.=94 =97 From = =93Compendium=20 of Sage = Verses=94

I am=20 receiving too many phone calls from people who = have been=20 fooled by his/her Agency that they have been=20 =93accommodated=94, and therefore they cannot = file for=20 disability retirement. From Federal Workers at = all=20 levels who are told that they can take LWOP when = they=20 are unable to work, to Postal Workers who are = given=20 =93Limited-Duty Assignments=94 =97 all need to = be clear that=20 your are NOT BEING ACCOMMODATED, AND THEREFORE = YOU HAVE=20 A RIGHT TO FILE FOR DISABILITY RETIREMENT. Let = me=20 clarify this issue by first discussing the = important=20 case-law of Bracey v. Office of Personnel = Management,=20 236 F.3d 1356 (Fed. Cir. 2001). Bracey was, and = still=20 is, a landmark decision =97 one of those cases = that pushed=20 back the attempt by the Office of Personnel = Management=20 to create a broad definition of what = =93accommodation=94=20 means, and thereby try and undermine a Federal = and/or=20 Postal Employees=92 right to disability = retirement.=20

5=20 U.S.C. 8337(a) states that a disabled employee = is=20 eligible for disability retirement unless the = employee=20 is able to render =93useful and efficient = service in the=20 employee=92s position=94, or is qualified for = reassignment=20 to an existing vacant position in the agency at = the same=20 grade or level. What this basically means is = that, if=20 you have a medical condition and you cannot do = one or=20 more of the essential elements of your job, you = are=20 entitled to disability retirement unless your = Agency can=20 (a) do something so that you can continue to = work in=20 your job, or (b) reassign you to an existing = vacant=20 position at the same pay or grade (all of those = words=20 are key to understanding the Bracey decision). = As to the=20 first issue, if your medical condition, either = physical=20 or psychiatric, is impacting your ability to = perform the=20 key functions of your job (in other words, = =93useful and=20 efficient service=94 means that you must be able = to=20 perform the =93critical or essential=94 elements = of your=20 position), then it means that you are eligible = for=20 disability retirement =97 unless the Agency can = reassign=20 you to an existing vacant position (the second = issue).=20 As to the second issue, what the Court in Bracey = meant=20 is that there has to be an actual position = existing,=20 which is vacant, to which a person can be = reassigned and=20 slotted into, at the same pay or = grade.

In=20 Bracey, the Office of Personnel Management was = trying to=20 have it both ways: they argued that (a) an = individual is=20 =93accommodated=94 if he can do his =93job=94, = and the =93job=94=20 which the Agency was having Mr. Bracey do was a=20 =93light-duty=94 job that was made up by the = Agency. As a=20 result, the Office of Personnel Management had = denied=20 Mr. Bracey=92s application for disability = retirement, and=20 the case reached the Merit Systems Protection = Board, and=20 then to the U.S. Court of Appeals for the = Federal=20 Circuit on appeal. More recently, Agencies have = been=20 trying to convince Federal workers that they can = take=20 =93Leave Without Pay=94 and work less hours; or = revert to=20 part-time status; or perform some other = functions =97 and=20 this constitutes an =93accommodation=94. Or, in = the case of=20 Postal Workers, especially those who have = intersecting=20 OWCP issues, one is often told that = =93Limited-Duty=20 Assignments=94 constitute an = =93accommodation=94. However, for=20 the latter, it is important to review such = assignments =97=20 does it include jobs from another craft? Are you = offered=20 a new =93Limited Duty Assignment=94 each year, = or every two=20 years (which would imply that it is not a = permanent=20 assignment)? Can a new supervisor or Postmaster = come in=20 tomorrow and declare that there are no longer = any=20 =93Limited Duty Assignments=94 available (which = is often the=20 case)?

=20 Remember that a =93position=94 in the federal = employment=20 system is =93required to be classified and = graded in=20 accordance with the duties, responsibilities, = and=20 qualification requirements associated with it. = The=20 =91resulting position-classification=92 system = is =91used in=20 all phases of personnel administration=92. 5 = U.S.C.=20 5101(2)=94 (Bracey at page 1359). It cannot be a = position=20 =93consisting of a set of ungraded, unclassified = duties=20 that have been assigned to an employee who = cannot=20 perform the duties of his official position.=94=20 Id.

=20 Similarly, for Postal employees, you cannot be = slotted=20 in your craft position, but then be given duties = crossing over from other crafts; and you cannot = be told=20 that you have been slotted into an already = existing=20 =93vacant=94 position, but then be offered the = same=20 =93Limited-Duty=94 position a year later. If it = was truly a=20 permanent =93vacant=94 position, why would you = be offered=20 the same position a year later?

=20 Remember that under 5 C.F.R. Section = 831.502(b)(7), an=20 offered position must be, among other things, of = the=20 same tenure as the position from which the = employee=20 seeks disability retirement. =93Tenure=94 is = defined at 5=20 C.F.R. Section 210.102(b)(17) as =93the period = of time an=20 employee may reasonably expect to serve under = his=20 current appointment.=94

If=20 you are a Federal or Postal employee, and you = find this=20 discussion about the Bracey decision to be = somewhat=20 confusing, do not let the complexity of = disability=20 retirement laws keep you from inquiring about = your=20 eligibility. In its simplest form, disability = retirement=20 is about 2 issues: Are you able to perform the = essential=20 elements of your job? If not, Can your Agency = slot you=20 into an already-existing position at the same = pay, grade=20 and tenure, and not just in some =93made up=94 = position that=20 hasn=92t been graded and classified=94? If your = answer is=20 =93No=94 to both questions, then you are = entitled to=20 disability retirement benefits.

As=20 true with all things in life, it is always = better to=20 affirmatively act with knowledge, especially = knowledge=20 of the law. Like the Tibetan proverb, to act = without=20 knowledge of the law is to act blindly. To fail = to act,=20 or to allow your circumstances to control your = destiny,=20 is to allow your Federal Agency or the U.S. = Postal=20 Service to dictate your future for you. If you = are=20 disabled, and unable to perform the critical = elements of=20 your job, then you should consider the option of = disability retirement. Opting for disability = retirement=20 does not mean that you can no longer be = productive in=20 society in some other capacity; indeed, you are = allowed=20 to receive a disability annuity and go out and = get=20 another job, and make up to 80% of what your = position=20 currently pays. Opting for disability retirement = merely=20 means that you have a medical condition which is = no=20 longer a good =93fit=94 for the type of job you = currently=20 have.

Visit my = website at=20 www.Federaldisabilitylawyer.com

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Federal and Postal Workers: Things You = Shouldn't=20 do When Filing for CSRS or FERS Disability = Retirement=20

Deep in the = woods,=20 the mother rabbit and her bunnies passed by a = dead fox.=20 Curiosity overwhelmed the bunnies, and they = began to hop=20 in unison towards the corpse. "Stop!" shrieked = the=20 mother rabbit. The bunnies froze in their = tracks. At=20 about the same time, the corpse quivered, oh = ever so=20 slightly, almost imperceptibly. The mother = rabbit=20 gathered her bunnies, and hopped away hurriedly, = whispering to them, "Remember, my lovelies, the = mistake=20 you make may cost you more than the satisfaction = of your=20 curiosity." -- From "Fables Long=20 Forgotten"

First, a quick = clarification: I=20 have had periodic calls concerning the = time-frame in=20 filing for disability retirement. The Statute of = Limitations in filing for disability retirement = is one=20 year from the date you are separated from = Federal=20 Service -- not from the date you were injured, = or from=20 the time you stopped working, etc. =

Next,=20 many Federal and Postal Workers ask me to = represent=20 them in obtaining disability retirement at the = Second=20 Stage (OPM's Reconsideration Stage), after = having filed=20 without representation. I have no problems with = that --=20 indeed, sometimes (though rarely), individuals = have such=20 a severe degree of medical disabilities that an = attorney=20 is not necessary. For the majority of Federal = and Postal=20 Workers, however, representation beginning at = the=20 initial stage of a disability retirement = application is=20 necessary. If, however, for financial or other = reasons=20 (including stubbornness), an individual insists = upon=20 filing for disability retirement without a = qualified=20 Attorney, the following are a few things which = you=20 should NOT do in preparing your application:=20

Do not become = non-compliant in a=20 treatment regimen, medication regimen, or any = aspect of=20 a reasonable medical regimen designed to treat = the=20 disease or injury. This is a sure way to have = your=20 disability retirement application denied. For, = when an=20 employee "is unable to render useful and = efficient=20 service because that employee fails or refuses = to follow=20 or accept normal treatment, it is wholly proper = to say=20 that the employee's disability flows, not from = the=20 disease or injury itself (as the statute = requires), but=20 from the employee's voluntary failure or refusal = to take=20 the available corrective or ameliorative = action." Baker=20 v. Office of Personnel Management, 782 F.2d 993, = 994=20 (Fed. Cir. 1986) (A word of caution: this does = not mean=20 that all surgeries must be consented=20 to).

Do not ignore the = basis of a=20 Notice of Removal. I have previously discussed = the=20 importance of obtaining the Bruner Presumption, = whenever=20 possible, in a disability retirement case. = Beyond=20 getting the Bruner Presumption, however, is the = fact=20 that any implication of misconduct or willful = failure on=20 the part of the Federal or Postal Employee = should always=20 be appealed, if not to have it completely = amended, then=20 to at least have such a basis for removal = expunged, and=20 instead to allow for the employee to resign, = thereby=20 nullifying misconduct as a basis for separation. = Never=20 give the Office of Personnel Management an = additional=20 reason to deny your disability retirement = application.=20

Do not have your treating = doctors=20 send in medical documentation directly to the = Agency=20 Personnel Office. Always take charge of your own = disability retirement application. Have the = doctors send=20 the medical documentation to you, and personally = review=20 and inspect each page of your submission for = accuracy,=20 relevance, and applicability to your medical = condition.=20 Never blindly submit medical documentation to = the Office=20 of Personnel Management. Again, never give the = Office of=20 Personnel Management an additional reason to = deny your=20 disability retirement application. This advice, = of=20 course, goes =93hand-in-hand=94 with my policy = of never=20 signing the SF 3112C (Physician=92s Statement), = which=20 often releases all of the medical documentation = directly=20 to the Agency.

These are just three = fundamental=20 "Do Not" rules in preparing and filing = for=20 disability retirement. When a Federal or Postal = Employee=20 comes to me at the Reconsideration Stage for = legal=20 representation, I find that I must first correct = several=20 fundamental errors committed by the applicant. = While I=20 can almost always correct the mistakes already = made, the=20 damage can only be minimized, and never = completely=20 eradicated, because the error is already known = to the=20 Office of Personnel Management. Still, I am = normally=20 able to convince the Office of Personnel = Management to=20 approve the disability retirement application =

In=20 the course of representing Federal and Postal = Workers to=20 obtain disability retirement benefits, I have = always=20 tried to emphasize the fact that, while it is = each=20 individual=92s choice as to whether or not to = hire an=20 attorney, you should always proceed with the = greatest=20 tool available -- knowledge. = Disability=20 Retirement is a benefit accorded to all Federal = and=20 Postal Employees under FERS and CSRS. However, = as with=20 all benefits, the right to it remains unclaimed = unless=20 one proves, by a preponderance of the evidence, = that one=20 is legally entitled to it. To prove your claim, = you must=20 go at it from a position of strength -- and this = requires knowledge. Like the Mother Rabbit who = cautions=20 her bunnies, do not allow lack of knowledge to = be your=20 stumbling block. My name is Robert R. McGill, = Esquire. I=20 am an attorney who specializes in disability = retirement=20 claims for Federal and Postal Employees. If you = would=20 like to discuss your particular case, you may = contact me=20 at 1-800-990-7932, or email me at DisabilityAtty@msn.com=20

Legal Updates Impacting = Disability=20 Retirement Laws For FERS and CSRS = Employees

Oct=20 23, 2005

- What is the = difference=20 between the madman, the mediocre, and the = Master? The=20 madman fails to master reality, and therefore is = unable=20 to function with knowledge; the mediocre may = have some=20 knowledge, but fails to master it; and the = Master -- he=20 is the rare one who sees the reality, seeks the=20 knowledge, and is able to grasp both.
- From = Ancient=20 Parables

I=20 have often discussed the legal advantages of = being=20 separated from Federal Service for one=92s = =93medical=20 inability to perform=94 one=92s job, which = results in what=20 is commonly known as the =93Bruner = Presumption=94, where=20 such a termination results in a prima facie = showing=20 of his or her burden of proof. What this = means is=20 that, with such a termination, the =93burden of=20 production=94 shifts to the Office of Personnel=20 Management, who must disprove your = entitlement to=20 disability retirement. Bruner v. = Office of=20 Personnel Management, 996 F.2d 290, 294 = (Fed. Cir.=20 1993) Bruner was a 1993 case, and still applies = today.=20 However, further developments since then have = expanded=20 the applicability of the Bruner Presumption, and = they=20 are of importance for those filing for = disability=20 retirement.

Some recent developments impacting FERS and = CSRS=20 disability retirement applicants:

The Merit Systems = Protection Board=20 has held that removal for =93extended absences = is=20 equivalent to removal for physical inability to = perform=20 where it is accompanied by specifications = indicating=20 that the decision to remove was based on medical = documentation suggesting that the appellant was = disabled=20 and unable to perform her duties.=94 McCurdy = v.=20 OPM, Docket #DA-844E-03-0088-I-1 (April 30, = 2004),=20 citing as authority Ayers-Kavtaradze v. = OPM, 91=20 M.S.P.R. 397 (2002). What this means is that, = the mere=20 fact that a removal letter does not specifically = state=20 that you are being separated from service for = you=20 =93medical inability to perform=94 your job, = does not=20 necessarily mean that you are not entitled to = the Bruner=20 Presumption. That is why it is often important = to have=20 an attorney involved in negotiating the = terms of=20 a removal action, especially where removal is an = action=20 about to happen. For instance, if it is becoming = clear=20 that you have been on LWOP for a period = approaching a=20 year, it might be a good idea to submit medical = reports=20 and documents showing the medical basis for your = LWOP.=20 Or, if a Notice of Proposed Removal has been = issued, it=20 is important to respond to such a proposal by = submitting=20 medical documentation establishing the basis for = your=20 non-attendance at work.

Now, the next and = natural question=20 is: How far will the Merit Systems Protection = Board=20 go in giving you the Bruner Presumption? The = answer:=20 It is not always important to get the = Bruner=20 Presumption, as it is to argue for the = Bruner=20 Presumption. In my experience litigating these = cases=20 before the Board, I have found that it is = helpful to=20 make a forceful argument that my client = should be=20 entitled to the Bruner Presumption, based upon = all of=20 the circumstantial evidence. And, even if I am = not able=20 to convince the Administrative Judge that my = client is=20 entitled to the Bruner Presumption, the argument = itself=20 highlights the fact to the Judge that it was a = close=20 call -- and this often leads to a = victory.

Indeed, as a rather = funny aside,=20 after I had submitted a legal memorandum and = argued to a=20 Judge during a Prehearing Conference that the = Bruner=20 Presumption should apply in a particular case, = the Judge=20 stated to me, =93Mr. McGill, according to your = argument,=20 the Bruner Presumption should always = apply!=94 To=20 which I responded: =93Your Honor, that would = indeed be my=20 preference.=94

Furthermore, it is also = of vital=20 importance to appeal a removal action whenever = possible=20 and legally permissible, especially where the = removal=20 action was based upon the alleged misconduct of = the=20 individual. Why? Because by appealing the = removal=20 action, you always stand the chance of coming to = a=20 compromise with the Agency, and having the = Agency change=20 the basis of the removal to one of =93inability = to perform=20 the job=94 or, at the very least, to = =93resignation based=20 upon medical problems=94. The case-law is = consistent in=20 holding that the Board will =93generally give = effect to=20 the terms of a settlement agreement between an = applicant=20 for disability retirement and her employing = agency in=20 determining the applicant=92s entitlement to = disability=20 retirement.=94 Jordan v. Office of Personnel=20 Management, 77 M.S.P.R. 610, 614-17 (1998), = recons.=20 Denied, 86 M.S.P.R. 144 (2000); and Bynum v. = OPM,=20 DC-831E-00-0093-I-1 (June 29, 2001). Similarly, = cases=20 such as Morton v. OPM, = PH-844E-99-0224-I-1 (June=20 28, 2001) -- where, while the Board found that = the=20 Appellant was not entitled to disability = retirement,=20 went out of its way to clarify the fact that the = Administrative Judge was =93improperly = influenced by=94 the=20 original removal action, and that the original = removal=20 action should not have been considered in making = the=20 determination concerning disability retirement=20 entitlement. Similarly, in Lewis v. OPM,=20 CH-831E-98-0434-I-2, the Board stated = unequivocally that=20 the Board =93will give effect to the terms of a = settlement=20 agreement between an applicant for disability = retirement=20 and her employing agency, in determining the = applicant=92s=20 entitlement to disability = retirement.=94

In=20 other words, even if you were originally removed = for=20 misconduct, if your removal is later changed by = a=20 settlement agreement with the Agency, and you=20 subsequently file for disability retirement, the = Administrative Judge must keep a blind eye with = respect=20 to the original removal action.

In=20 the course of representing Federal and Postal = Workers to=20 obtain disability retirement benefits, I have = always=20 tried to emphasize the fact that, while it is = each=20 individual=92s choice as to whether or not to = hire an=20 attorney, you should always proceed with the = greatest=20 tool available -- knowledge. = Disability=20 Retirement is a benefit accorded to all Federal = and=20 Postal Employees under FERS and CSRS. However, = as with=20 all benefits, the right to it remains unclaimed = unless=20 one proves, by a preponderance of the evidence, = that one=20 is legally entitled to it. To prove your claim, = you must=20 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=20 retirement claims. If you would like to discuss = your=20 particular case, you may contact me at = 1-800-990-7932,=20 or email me at DisabilityAtty=20 msn.com.

Preparing the Proper Bridge = to Win a=20 Disability Retirement Case under FERS and=20 CSRS

Then,=20 there is the story of an old man who wanted to = have=20 peace and quiet , and become a recluse. So he = built a=20 castle, and began first by digging a moat so = wide and=20 deep that none would be able to violate his = privacy.=20 Thereafter, he filled the moat with water, and = released=20 crocodiles and other dangerous creatures to keep = all=20 strangers away. Next, he scattered broken glass = and=20 sharp objects on the outer perimeter of the = moat, to=20 ensure that none would be able to enter. Alas, = when it=20 came time to build his home in the middle of the = moat,=20 none could enter, for the old man had forgotten = to first=20 build a bridge. - From Stories=20 Forgotten

Many=20 individuals who have filed for disability = retirement=20 benefits with the Office of Personnel Management = (OPM),=20 get their applications rejected because they = have not=20 created the proper "nexus", or bridge, between = their=20 medical condition and the duties of their job. = Remember,=20 disability retirement is unlike Worker's Comp or = Social=20 Security. Under Worker's Comp, often the primary = focus=20 is to prove the causation between work and = injury -- in=20 other words, the "bridge" that needs to be = constructed=20 is one that shows that one's medical condition = was=20 directly caused by, or occurred at, the = worksite.=20 For Social Security disability, the focus is = often upon=20 establishing the existence of a specifically = diagnosed=20 medical condition, one which is accepted by the = Social=20 Security Administration as causing a = 'debilitating' or=20 'disabling' condition, such that 'total = disability' can=20 be established. In each case, the "bridge" to be = constructed is different. So it is also with = disability=20 retirement under OPM.

Remember=20 that, for disability retirement under CSRS or = FERS, it=20 is not so important what the medical = disability=20 is, as it is to show that the symptoms one has = impacts=20 directly upon one's ability or inability to = perform=20 one's job. Indeed, in the bedrock case of = Bruner=20 v. OPM, 996 F.2d 290 (Fed.Cir. 1993), the = Federal=20 Circuit Court of Appeals stated that it is the=20 "relationship between the service=20 deficiency and the medical condition," (emphasis = added)=20 which is one of the important "bridges" which = must be=20 established in a disability retirement case. = Thus, I=20 find that many individuals who have attempted to = file=20 for disability retirement at the first stage, = and who=20 have had his or her application denied, come to = me=20 because of a failure of creating a "nexus", or a = bridge,=20 between what the diagnosed medical condition is, = and=20 what the job requires. Thus, by way of a simple = example,=20 an applicant might think that because he or she = suffers=20 from severe knee problems, that one needs only = to have=20 the doctor give a diagnosis, attach some medical = records, and expect that OPM will grant him = disability=20 retirement. This might be true if the=20 individual's job is as a Letter Carrier for the = U.S.=20 Postal Service (although, even in such an = instance, OPM=20 will be very skeptical and require a complete=20 explanation); but it might not work if you work = as a=20 Computer Specialist with a Federal Agency, where = you=20 have a sedentary position not requiring daily = repetitive=20 use of your knees. In either case, what is = important is=20 to have the doctor show how the medical=20 disability impacts upon one's ability to perform = his or=20 her job. (In the latter example, it may be that = the=20 chronic pain in his knee requires a medication = regimen=20 of narcotic pain relievers, and such medication = impacts=20 upon his ability to focus upon a = cognitively-intense=20 job. In such a case, I have been able to get OPM = to=20 accept such a claim, even in a sedentary=20 job).

Often,=20 individuals make the mistake of treating = disability=20 retirement claims under FERS and CSRS as if it = was a=20 Social Security claim. However, the "official=20 diagnosis", or name of the disability, is not = important=20 for disability retirement claims. Instead, it is = the=20 relationship between the symptoms one = has, and=20 the impact of those symptoms upon the = requirements of=20 the job. Similarly, neither 'causation' nor = 'permanent=20 and stationary' are relevant for disability = retirement=20 claims (whereas they are obviously important in = OWCP=20 cases). Indeed, I have had clients who, despite = having=20 serious and debilitating medical disabilities, = had their=20 claims rejected by the Office of Personnel = Management.=20 At the Reconsideration Stage, I have been = successful at=20 getting them approved, not by obtaining more = medical=20 documentation, but rather, by clearly outlining = to the=20 Office of Personnel Management, in detail, what = the=20 applicant's job required, and showing the=20 relationship between the serious medical=20 condition and the requirements of the job. =

This is=20 similarly true at the Merit Systems Protection = Board=20 (M.S.P.B.) level of an appeal in disability = retirement=20 claims (the Third Stage in the process). At the = M.S.P.B.=20 level, I always insist upon having a medical = doctor=20 testify via a telephonic hearing. At the = Telephone=20 Hearing, I always have the doctor explain, in = methodical=20 detail, the relationship between the medical = disability,=20 and the kind of job the Applicant is required to = do.=20 Indeed, this requirement of mine has been = successful --=20 not because of my own "brilliance" (although,=20 admittedly, I would like to think that I have=20 some part in the success of a = disability=20 retirement claim), but rather, because = that is=20 what the law requires. Thus, in = Dunn v.=20 OPM, 60 M.S.P.R. 426, 432 (1994), the = Board=20 stated therein that 'absent a clear and reasoned = explanation of how a medical condition affects = an=20 employee's specific work requirements, a = physician's=20 conclusions on disability are unpersuasive',=20 appeal dismissed, 91 F.3d 169 = (Fed. Cir.=20 1996). Again, note how the law requires you to = show the=20 relationship, or "bridge", between the medical = condition=20 and the type of job one performs.

Disability=20 Retirement is a benefit accorded to all Federal = and=20 Postal Employees under FERS and CSRS. However, = as with=20 all benefits, the right to it remains unclaimed = unless=20 one proves, by a preponderance of the evidence, = that one=20 is legally entitled to it. In order to make such = a claim=20 valid, you must assert your legal right to it. = My name=20 is Robert R. McGill, Esquire. I am an attorney = who=20 specializes in disability retirement claims. If = you=20 would like to discuss your particular case, you = may=20 contact me at 1-800-990-7932, or email me at=20

Differences between FERS/CSRS = Disability Retirement and = OWCP

The rabbit = had been=20 able to elude the fox, hopping safely into the = arms=20 of a briar patch and out of the immediate = reach of=20 the hungry predator. Seeing that he would = not be=20 able to have the rabbit for a meal, he decided = instead=20 to show concern. =93Are you alright, my = friend?=94 he=20 asked, trying to put on an expression of = empathy. =20

=93Quite=20 well, thank you,=94 replied the rabbit, still = panting from=20 the close call and looking to and fro with=20 suspicion.

=93Very=20 well, then,=94 said the fox, who began to walk = away. =20 He paused, turned around, and added, =93I = promise not to=20 try and harm you anymore.=94

=93Are you=20 quite serious?=94 asked the rabbit, surprised at = this=20 sudden announcement.

=93Quite=20 serious,=94 the fox replied, then walked = away. As he=20 walked, he uttered under his breath, =93At least = -- not=20 for today.=94

From=20 =93More Fables, Ancient and New=94

=20 At least once a month, I receive a call = from an=20 individual who has been on total disability with = Federal=20 Worker=92s Comp for several years. The = individual=20 has been separated from service from the Federal = Government or the Postal Service for more than a = year,=20 and suddenly the Office of Workers Compensation = Program=20 sends the individual to a Second Opinion doctor, = and=20 thereafter issues a declaratory finding that he = or she=20 is no longer disabled, and can return to = work. =20

-- Not=20 only has that individual lost his OWCP benefits, = but he=20 has also lost his right to file for disability=20 retirement under FERS or CSRS. =

This is=20 because, under the rules and regulations for = disability=20 retirement, an individual must file with the = Office of=20 Personnel Management within one year from the = date he or=20 she is separated from Federal Service (See 5 = C.F.R. Sec.=20 844.201(a)(1) , where it states that, "Except as = provided in paragraphs (a)(3) and (a)(4) of this = section, an application for disability = retirement is=20 timely only if it is filed with the employing = agency=20 before the employee or Member separates from = service, or=20 with the former employing agency or OPM within 1 = year=20 thereafter.") Thus, a word of = caution for=20 those many individuals who receive the = non-taxable=20 payments from OWCP -- continue to remain = on OWCP=20 for as long as possible, because it is certainly = financially advantageous over the taxable = annuity amount=20 received from FERS/CSRS disability retirement -- = but=20 always remember that OWCP is not a retirement=20 system. If they don=92t cut your payments = off today,=20 there is always tomorrow (refer to the fox in = the fable,=20 above).

I=20 always advise my disability retirement clients = who are=20 receiving OWCP benefits to remain on OWCP for as = long as=20 they can stand it (i.e., the persistent = harassment, the=20 constant oversight by so-called "2nd opinion = doctors",=20 etc.) -- but to always have the FERS/CSRS = disability=20 retirement annuity approved as a back-up source = of=20 income. Individuals may file for = disability=20 retirement concurrently while on OWCP -- but you = simply=20 cannot collect from both at the same time = (See 5=20 C.F.R. Sec. 844.105, "Relationship to workers'=20 compensation. (a) Except as provided in = paragraph (b) of=20 this section, an individual who is eligible for = both an=20 annuity under part 842 or 844 of this chapter = and=20 compensation for injury or disability under = subchapter I=20 of chapter 81 of title 5, United States Code = (other than=20 a scheduled award under 5 U.S.C. 8107(c)), = covering the=20 same period of time must elect to receive either = the=20 annuity or compensation. " ) Thus, = when OWCP=20 terminates your payments (and there is a = very good=20 chance that this will happen at some point in = the near=20 future), it is a wise option to have your = disability=20 retirement benefits approved, but held in an = inactive=20 status. You have every right to elect one = benefit=20 over the other. Indeed, if you wanted to, = you are=20 allowed to go back and forth between OWCP and = FERS/CSRS=20 disability retirement.

As a=20 secondary issue on this matter, take a close = look at 5=20 U.S.C. Section 8106 on =93partial disability=94, = and =20 compare that definition with the definition for=20 disability retirement. In Section 8106 = (OWCP), the=20 definition states in paragraph (c) (2) that =93A = partially=20 disabled employee who refuses or, neglects to = work after=20 suitable work is offered to, procured by, or = secured for=20 him, is not entitled to compensation.=94 = This means=20 that if OWCP secures a job for you as a Walmart = greeter=20 (you know, those individuals who smile and say = hello to=20 you as you walk into the Walmart Superstore), = and pay=20 you the difference between your salary and what = Walmart=20 pays -- and you decide to say =93no=94, OWCP has = every right=20 to cut off your payments. On the other = hand, under=20 the laws concerning FERS & CSRS disability=20 retirement, 5 C.F.R.Sec. 844.103 (a)(2) = states=20 that, in order to be eligible for disability = retirement,=20 the individual "must, while employed in a = position=20 subject to FERS, have become disabled because of = a=20 medical condition, resulting in a deficiency in=20 performance, conduct, or attendance, or if there = is no=20 such deficiency, the disabling medical condition = must be=20 incompatible with either useful and efficient = service or=20 retention in the position" The difference = here is=20 that, under OWCP, if you are 'partially = disabled', if=20 you are offered any job that OWCP believes you = can do,=20 you must accept it. On the other hand, = under=20 FERS/CSRS disability retirement laws, if you are = partially disabled -- meaning that you simply = cannot do=20 at least one or more of the essential elements = of your=20 job -- then you are entitled to disability = retirement=20 benefits, and your agency or the Postal Service = cannot=20 simply offer you any job; they must offer you a = job in=20 the same pay or grade, and one in which you are=20 qualified or, if you are in the Postal Service, = then it=20 must an accommodation in the same craft. = Under the=20 former (OWCP), you have no control over your = future=20 (OWCP determines your future); under the latter=20 (disability retirement), you can obtain = disability=20 retirement benefits, and then take control of = your=20 future and work at another job of your choice, = and make=20 up to 80% of what your (former) position pays, = and still=20 continue to receive your disability annuity.=20

=20 Experiencing a medical disability is a = traumatic,=20 life-changing event. Financial concerns = are always=20 part of this life-changing event, and it is = important to=20 secure one's financial future to the greatest = extent=20 possible. Obtaining disability retirement = -- both=20 the annuity as well as the health insurance = benefits --=20 is often the difference between a secure future = and=20 financial poverty. It is therefore = extremely=20 important to look upon disability retirement as = a=20 lifetime investment -- one which must be = obtained with=20 an aggressive plan and approach.

I am an=20 Attorney who represents Federal and Postal = workers from=20 all across the United States, including Alaska, = Hawaii=20 and Puerto Rico. I do not charge for = telephone=20 consultations. If you would like to = contact me,=20 you may call me at 1-800-990-7932, or email me=20 at I also advertise in = the=20 Attorney Directory of the Federal = Times.

Sincerely,
Robert=20 R. McGill, Esquire

Subject: Disability Retirement and = the Law=20 Today

-- The conquering Army chose = the time and=20 place of the battle, but made it appear as if = the=20 fighting began by accident. Who wins the war is = always=20 determined by careful planning. Wars are never = won by=20 chance; they are won by choosing the right = battles, at=20 the right time, on the advantageous terrain, and = by=20 professionals who know what they are = doing.

--=20 Anonymous Roman Centurion, on =93The Art of=20 Warfare=94

The Office of = Personnel=20 Management is constantly and aggressively = attempting to=20 change the laws concerning disability = retirement, to=20 make disability retirement laws more difficult = to=20 overcome. Such attempts at changing the law = always comes=20 in incremental steps, and may not seem like=20 =93blockbuster=94 cases at the time; but the = reverberating=20 effects of such cases can be far-reaching, and = impact=20 upon Federal and Postal Workers for years to=20 come.

I am presently involved in two = cases which=20 may have a direct impact upon those who wish to = file for=20 disability retirement. This Article is meant to = keep you=20 updated on the two issues:

Issue #1: In = the=20 well-known case of Bruner v. Office of Personnel = Management, 996 F. 2d 290 (Fed. Cir. 1993), the = Federal=20 Circuit Court of Appeals found that where a = person is=20 separated for =93physical inability to perform = his job=94,=20 that the =93burden of production=94 shifts to = the=20 government. This is well-known as the =93Bruner=20 Presumption=94. In laymen terms, this merely = means that if=20 a person is terminated or separated from Federal = Service=20 because of his or her =93physical inability to = perform the=20 job=94, then it is almost a certainty that we = can get=20 disability retirement for that Federal/Postal = worker.=20 That is why it is extremely important to have an = attorney involved in the separation process -- = to=20 negotiate the type of language which is = acceptable. This=20 is more the case now, because the Office of = Personnel=20 Management is appealing a recent case to the = Full=20 M.S.P.B. Board involving a case where the worker = was=20 separated for =93unavailability for duty=94, = even though the=20 =93unavailability=94 was clearly for medical = reasons. OPM=20 argued that, because the worker was not = specifically=20 separated for =93physical inability to work=94, = but instead,=20 because he was =93unavailable=94, that therefore = the =93Bruner=20 Presumption=94 should not apply.

This = is, to use a=20 well-known legal term, =93hogwash=94. =

OPM should=20 know better. What OPM ignores, is that the Court = in=20 Bruner went on to say that =93the government=92s = action in=20 separating an employee for disablement produces = a=20 presumption of disability...=94 Furthermore, = there are=20 been recent holdings which support the position = that=20 lack of precision in the language of separation = should=20 not preclude invocation of the Bruner = Presumption. For=20 instance, in Lewis v. Office of Personnel = Management, 87=20 M.S.P.R. 275 (2000), the Board held that a = charge of=20 =93inability to work=94 warranted application of = the Bruner=20 Presumption; and again in Bell v. Office of = Personnel=20 Management, 87 M.S.P.R. 1 (2000), the Board = applied the=20 Bruner Presumption where, although the Agency = charged=20 the appellant with failure to meet the = requirements of=20 her position, it was clear that the agency = removed the=20 appellant because it found her unable to perform = her=20 duties based on medical evidence of = psychological=20 incapacitation.

Thus, what the Office of = Personnel Management is trying to do, is to = narrowly=20 limit the application of the Bruner Presumption. = The=20 Lesson here is: If termination or separation is = an=20 issue, or a potential issue, get an=20 attorney.

Issue #2: As many of you know, = I have=20 previously discussed the important case of = Bracey v.=20 Office of Personnel Management, 236 F.3d 1336 = (Fed. Cir.=20 2001). It is an important case which directly = impacts=20 upon the issue of accommodation.

What the = Court=20 in Bracey did, was to clarify what an Agency can = and=20 cannot do. For instance, the Court therein = stated=20 unequivocally that if the Agency wants to = "accommodate"=20 you, it must be so that you can do the job you = are=20 presently slotted for. Keeping you "officially" = slotted=20 in a given position, but in reality having you = do some=20 light-duty, "other" kind of job, is not = considered an=20 "accommodation". As the Court clearly stated, an = agency=20 cannot stop a disability retirement application = "by=20 assigning an injured employee to an ad hoc set = of light=20 duties as long as it continues to pay the = employee at=20 the same level as before." (Page 1362 in Bracey) =

More recently, however, the problem has = been=20 that the Office of Personnel Management has = questioned=20 -- no, let me go further -- they have = challenged, the=20 applicability of the Bracey decision for Postal=20 Employees. While I have previously pointed out = that the=20 combination of 5 U.S.C. Section 8451(a)(2)(D), = which=20 states that "an employee of the United States = Postal=20 Service shall not be considered qualified for a = position=20 if such position is in a different craft or if=20 reassignment to such position would be = inconsistent with=20 the terms of a collective-bargaining agreement = covering=20 the employee," and further, pointed out that in = Smith v.=20 Office of Personnel Management, Docket=20 #AT-844E-00-0140-I-1 (March, 2001), the Merit = Systems=20 Protection Board concluded that, where the = Postal=20 Service attempted to "accommodate" a disabled = Rural=20 Carrier by assigning her to duties or positions = in the=20 Clerk craft, it did not constitute = "accommodation", and=20 therefore disability retirement was granted to = the=20 employee; nevertheless, OPM is at it again. In 2 = or 3=20 cases all at once (and one in which I am = involved in),=20 OPM is trying to argue that (1) the Bracey = decision does=20 not apply to Postal Workers, and therefore the = Postal=20 Service can slot workers from one craft to do = jobs of=20 another craft, and (2) that the Postal Service = has a=20 duty under the collective bargaining agreement = to=20 =93accommodate=94 Postal Employees, even if it = means doing=20 work in a different craft. If OPM wins in these=20 arguments, what it means is that the Postal = Service can=20 potentially take an injured Letter Carrier, and = have him=20 sit in a room doing odd jobs devised by his or = her=20 supervisor.

Thus far, OPM has not been = successful=20 in their arguments. Indeed, it is important that = Postal=20 and Federal employees applying for disability = retirement=20 take great care in fighting the various = arguments of=20 OPM. Each fight which OPM wins, creates a = greater=20 obstacle to potential future disability = retirement=20 filers.

Disability retirement is a = benefit which=20 all Federal and Postal Employees should be able = to have=20 access to, if and when the need arises. However, = there=20 is a large chasm between having the right, and = being=20 able to access that right. The road between the = two is=20 often beset with legal obstacles and potholes. = How to=20 maneuver through the legal maze is the job of = the=20 Attorney.

If you believe that you need = to=20 consult an attorney concerning disability = retirement,=20 please contact me at 1-800-990-7932, or email me = at . My=20 ad also appears weekly in the Federal=20 Times.

Sincerely,

Robert R. = McGill,=20 Esquire

Back

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