» Winning My Case

How Can A Lawyer Speed Things Up?

ANSWER: By not making the mistakes you're going to make.

According to an OPM CHCO Academy Session in 2012, these are the roadblocks to moving a case forward.

44. Why do application packages take as long as 9 months?
Processing time is affected by a number of factors including, but not limited to:

  1. Incomplete preliminary application and need for additional documentation;
  2. Delays in applying for Social Security disability or providing evidence of application or denial of Social Security disability (CSRS Offset and FERS only);
  3. Incomplete Final package; and,
  4. Evidence of workers’ compensation receipt. I would add number 5. And that is sometimes OPM adjudicators can't even find my client's file.

A lawyer can help you sail past these roadblocks. My take is that these are complex actions which federal employees applying for Disability Retirement often avoid just because of their complexity, or the employee's lack of knowledge as to how to fulfill them. For instance, so many clients have come to me who have been rejected because their applications are incomplete. You would think that just filling out the form makes it complete, but that's just not so. I could go on and on about why it's not so, and have done so in other parts of this blog. A lawyer who has a good deal of prior experience in taking the necessary actions and taking them in the best way to favor his client is always going to be more successful than the client going through the process on their own.

Will I need a lawyer to win disability retirement?

ANSWER: Probably. While it is true that a typist whose hand is cut off probably will not need a lawyer to get disability retirement, most cases are not so clear-cut. Remember the case of the government attorney disabled by AIDS dementia that I discussed previously? If someone suffering from such a serious and incurable illness needed a lawyer to win, then most applicants probably need a lawyer. This is particularly true given that most government employees seek disability retirement for illnesses like chronic pain, depression, anxiety, phobias, allergies, chemical sensitivities, and the like -- all of which have a single common denominator: they are subjective. While such symptoms may severely disable the sufferer, they cannot be readily perceived by others, including the physicians who are called upon to diagnose and treat them. Employees with such difficult-to-prove symptoms have a particular need for strong legal advocacy.

Which is more important in getting disability retirement, the nature of my disease or injury, or the symptoms from which I suffer?

ANSWER: The disabling symptoms matter most, although diagnosis of a fatal or very serious disease can certainly be expected to have some impact on the disability decision. For instance, people with cancer do not automatically qualify for disability retirement unless they are presently suffering from the disabling symptoms of that disease. On the other hand, you don't have to suffer from any particularly serious disease, or even from any diagnosable disease in order to qualify for disability retirement. You only need to make the appropriate showing that you are suffering from disabling symptoms, even if the cause of the symptoms is unknown.

The rules are tough in not allowing a mere diagnosis to serve as a ground for disability retirement. But the rules are also lenient in permitting you to qualify for disability retirement on the basis of disabling symptoms which may appear to be minor or which effect you only on particular occasions. A person whose job requires travel by plane on occasion, but who is unable to fly on account of chronic back pain may well be eligible for disability retirement, even if an asymptomatic cancer patient is not eligible.

How do I prove that I am disabled?

ANSWER: You don't have to prove it, in the sense of being required to produce objective medical evidence. In certain clear-cut cases (i.e. that of the typist whose hand was cut off), it is easy to prove disability. But such cases are the exceptions. More frequently, disabling symptoms are impossible to prove, and, contrary to popular belief, the law does not require you to do the impossible. Subjective but very disabling symptoms (such as fatigue, chronic pain, phobias, depression, and allergies) are usually impossible to prove, because no objective medical evidence is usually available. Yet they are among the most common disabilities for which government employees seek and obtain a monthly disability annuity. Employees with subjective symptoms, regardless of their medical condition, face the greatest difficulties before OPM.

Sometimes, even when you can provide objective medical evidence to support your claim, OPM may not be interested in looking at it. In one case, I sent a client's x-rays to OPM to demonstrate that he had a slipped disc. OPM refused to accept them, saying that it had no place to store x-rays. You would think that if only to prevent potential fraud, OPM would have demanded such information, not blindly turned it away.

How do I get the government to award me retirement if I can't prove that I have disabling symptoms?

ANSWER: The law has accommodated the imprecision of medical science by providing alternative methods of proof. Deficiencies in either attendance, performance, or conduct may be used to infer the presence of disabling symptoms. To that end, the "Applicant's Statement" and the "Supervisor's Statement" specifically raise questions about such deficiencies.

However, just because you demonstrate such deficiencies, it does not mean that OPM will use them in your favor to infer that you have a disabling medical condition. Quite the contrary, OPM often, and without good reason, uses evidence of such deficiencies to trash employees for laziness and ineptness, thereby defeating the purpose for which they raised the deficiencies in the first instance.

Apart from the inferences provided by various deficiencies, the law has developed a special presumption concerning the credibility of government employees with long tenure and a good record. The bottom line is that you have a right to be believed even if your symptoms can't be perceived by others. Especially if you have long tenure and a good record, you are entitled to be taken seriously in your claims of disabling symptoms. If your claims are consistent with the nature of your medical condition, you are entitled to disability retirement.

Can I really expect OPM to take seriously my claims of disabling symptoms when those symptoms are subjective?

ANSWER: Probably not. Such claims are often not taken seriously by OPM. As a result, many government employees disabled by subjective symptoms are wrongfully denied disability retirement. When proof of disability is difficult to provide, OPM often chides employees and routinely makes them out to be malingerers, liars and cheats. This is where an experienced lawyer can have a particularly salutary impact.

What can I do to best assure that OPM takes my claim seriously?

ANSWER: Apart from the formal steps necessary to get disability retirement, there is one particularly effective informal step that I take in some cases. I flood OPM with evidence of disability by introducing letters and affidavits from family and friends on the home front, and co-workers and colleagues on the work front, all testifying to my client's credibility and disability. I never worry that the formal process has no place for such letters and affidavits. I go on the assumption that it's hard to ignore someone with a horde of witnesses out there just itching to testify.

What types of disability retirement cases have required legal assistance to win?

ANSWER: The following are just a few of the many cases of government employees who were initially rejected by OPM, and who, with legal assistance, are today receiving a monthly disability annuity:

  • a typist unable to work anywhere in her agency's office building on account of her allergy to cigarette smoke;
  • a computer analyst distracted from his work by chronic pain resulting from a childhood injury;
  • a manager whose HIV-positive status caused him to be too fatigued to put in a full day's work;
  • a secretary whose depression-related crying spells often made her late for work;
  • a post office employee suffering from carpal tunnel syndrome and unable, without distracting pain, to perform the repetitive motions involved in sorting mail;
  • a security guard with chronic bowel syndrome who could not patrol outside because he needed quick access to toilet facilities;
  • a hospital worker with an obsessive fear of germs at the work site;
  • an auditor required to travel by plane but unable to sit still in her airplane seat because of a slipped disc; and
  • a laboratory technician who developed a hypersensitivity to the fumes from chemicals used in the lab.

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