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Preparing the Proper Bridge to Win a Disability Retirement Case Under FERS and CSRS
 by: Robert McGill





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.

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This article was posted on November 08, 2006

 


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