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

-- From Stories Long Forgotten

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

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

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

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

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

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

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

Sincerely,

 
Robert R. McGill, Esquire

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

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

    OPM’s Medical Questionnaire

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

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

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

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

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

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

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

    Second Issue: Accommodations

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

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

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

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

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

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

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

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

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

Sincerely,

 
Robert R. McGill, Esquire

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

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

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

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

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

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

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

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

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

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

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

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

Robert R. McGill, Esquire

Disability Retirement and the Agency Cover of Accommodation

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

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

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

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

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

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

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

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

Legal Updates Impacting Disability Retirement Laws For FERS and CSRS Employees

Oct 23, 2005

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

     "Strike three...you're out!" screamed the umpire.

     "How could I miss all three times?" asked the young boy, dejectedly, as he walked back to the dugout.

     "If you swing the same swing at three different pitches, you ain't about to hit any of them," said the manager, resting his arm around the young boy's shoulders. "Recognize each pitch, and swing accordingly."

                        -- from "Baseball Stories then and now"

     Individuals attempting to file for disability retirement, either under FERS or CSRS, on their own, and without an attorney, must meet the same standards, same criteria, and same legal thresholds, as those who are represented. While it may cost an individual in the short term to hire an attorney, that cost may be insignificant compared to the loss of a long-term investment -- the monthly annuity income which may span years, and even decades, depending upon your age.

     In applying for disability retirement under FERS or CSRS, you essentially have three shots at succeeding. First, there is the initial stage of review before the Office of Personnel Management (OPM). If OPM denies the application at this initial stage, you may Request Reconsideration -- and at this stage, you are given an opportunity to submit additional medical and other documentation, as well as make legal arguments. If OPM refuses you the second time, you may appeal your case to the Merit Systems Protection Board, and have an
administrative judge independent of the Office of Personnel Management, hear your case.

     There are two additional stages -- an appeal to the Full Board, as well as a further appeal to the Court of Federal Appeals; however, to have either of these legal bodies reverse the decision of an MSPB judge is extremely difficult.

     The problem with individuals attempting to obtain disability retirement on their own, is their lack of knowledge of the legal standards required. This then leads to making the same mistake at each stage of the process. The key is to know what the legal standard is; to recognize that the "benefits clerk" at OPM is not necessarily an individual who knows what he or she is talking about, and to point out the error of OPM's decision (courteously, but firmly), and to rebut any arguments made by OPM. This then lays out a successful foundation in the
event that your case must be appealed to the Merit Systems Protection Board. Time, care, money and investment at preparing your case at Stage 1 will avoid a needless denial of your disability retirement application.

     Unrepresented individuals who have had their applications denied have come to me wi