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 Federal Disability Retirement under FERS or CSRS from the Office of Personnel Management is a long road […]
The recent case of Vanieken-Ryals v. OPM, U.S. Court of Appeals for the Federal Circuit, decided on November 26, 2007, cannot be overemphasized for its importance to the Federal Disability Retirement process. It is, in my view, a landmark case which will greatly advance potential OPM Disability Retirement applicants who base their disabilities upon psychiatric conditions. In representing my clients, I have repeatedly argued that the Office of Personnel Management’s insistence upon “objective medical evidence”,…
In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations. 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….
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 Federal Disability Retirement application. In preparing a Federal 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.
I am receiving too many phone calls from people who have been fooled by his/her Agency that they have been “accommodated”, and therefore they cannot file for Federal Disability Retirement. From Federal Workers at all levels who are told that they can take LWOP when they are unable to work, to Postal Workers who are given “Limited-Duty Assignments” — all need to be clear that your are NOT BEING ACCOMMODATED, AND THEREFORE YOU HAVE A RIGHT TO FILE FOR DISABILITY RETIREMENT.
Many Federal and Postal Workers ask me to represent them in obtaining Federal 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,…
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.
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, OPM 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…
At least once a month, I receive a call from an individual who has been on total disability with Federal Worker’s Comp for several years. The individual has been separated from service from the Federal Government or the Postal Service for more than a year, and suddenly the Office of Workers Compensation Program sends the individual to a Second Opinion doctor, and thereafter issues a declaratory finding that he or she is no longer disabled, and can return to work.
The Office of Personnel Management is constantly and aggressively attempting to change the laws concerning Federal Disability Retirement, to make these disability retirement laws more difficult to overcome. Such attempts at changing the law always comes in incremental steps, and may not seem like “blockbuster” cases at the time; but the reverberating effects of such cases can be far-reaching, and impact upon Federal and Postal Workers for years to come.