OPM DISABILITY RETIREMENT APPLICANTS ARE ROUTINELY CHEATED OUT OF DISABILITY RETIREMENT BENEFITS BY ADJUDICATORS WHO ARE UNTRAINED IN THE RELEVANT LAW AND MEDICINE
I have evidence that OPM denies disability retirement benefits based on a bogus law—a law that does not exist. Applicants who lose their case, as a result of such a denial have been cheated out of their right to disability retirement.
The question is how to detect whether your losing decision was the product of a bold faced lie or of your hurt feelings over losing. OPM’s lies are appealable; your hurt feelings are not.
I use both legal research and an analysis of my past cases to separate lies from the hurt feelings.
With legal research, I can compare OPM’s decision in a single case against the thousands of cases handed down by OPM’s ultimate master, the Merit Systems Protection Board (MSPB). If OPM’s legal decision in that single case is unsupported or contradicted by one or more of the thousands of MSPB cases, then OPM’s pronouncement is bogus.
As an example, numerous clients have been denied disability retirement by OPM, on the ground, that since their agency had put them on “light duty,” they had been “accommodated.” Since they had been accommodated, and could perform the light duties, they were not entitled to disability retirement.
The law is exactly the opposite.
Among all those MSPB cases is one called Bracey v. OPM. It holds that light duty does not constitute an accommodation. If there is no accommodation, then the applicant is not precluded from being awarded disability retirement. OPM is well aware of this case. They just ignore it and invent their own law.
Once you know this, you know that you have been bamboozled!
An analysis of cases that I have handled in the past, can reveal patterns and the extent of OPM’s attempts to wrongfully strip clients of their right to disability retirement.
If one or two cases, with near identical facts are decided differently, I chalk that up to haphazard error, not conspiracy. Similarly, if one or two cases are decided incorrectly using the identical language in doing so, I chalk it up to happenstance.
But, I draw the opposite conclusion, when, over a period of years, numerous clients walk into my office, all having been denied disability retirement on the identical bogus ground, by different OPM adjudicators and all of those decisions use the identical language and even the identical word processor formatting.
Here’s an example:
With some exceptions, to qualify for disability retirement, an applicant must show a “service deficiency,” This can be poor attendance, unsatisfactory performance or bizarre conduct.
The theory of an attendance deficiency, is that if you have significant absences, they may be attributable to your medical condition. That can provide you with an “attendance deficiency presumption.” That won’t by itself win your case, but it’s very helpful. Without it, you may lose.
Bottom line, if you want disability retirement, then you want OPM to find that you have an attendance or other service deficiency presumption.
I maintain a data bank of all prior clients’ cases. To write this article, I ran a computer check on the attendance deficiency presumption.
I found that 19 clients had been told by different OPM adjudicators, that they did not qualify for the attendance deficiency presumption, each one for the same false reason, each decision using virtually the identical language and word processor formatting.
Here is what OPM said in each of these 19 decisions:
“ . . .. it must be established that if you returned to work your health would be compromised by one of the following:
a risk of sudden or subtle incapacitation (which would be likely to result in harm to yourself or others), or
a risk of further health impairment by working, or
a risk of transmission of a communicable disease or injury which makes it totally unreasonable to expect you to work.”
This language is false. There is no such rule.
Every client who was denied the attendance deficiency presumption on this ground was cheated. As a result, each may have been wrongfully stripped of the right to disability retirement.
There is not a single statute, regulation or MSPB case, which mandates, that before you can qualify for the attendance deficiency presumption, that you have to demonstrate that you have one of these particular risks. If you are just feeling too sick to come to work because of your medical condition, and that continues over a period of time, then you have a legitimate attendance deficiency presumption.
I’ve told this to OPM in each of these 19 cases in 19 separate written appeals. The pattern has never changed. Last month the 20th client walked into my office.
In law, we like time-tested language. We shun originality. Being a copycat is applauded. It promotes equal treatment of similar cases among those multiple decision-makers, deciding like cases. Assuming that the correct law is used, the outcome should be positive.
But in this example, the outcome was a potential disaster to my 19 clients, because a non-existent law was applied to defeat their rights.
Like a virus, this has the potential to infect OPM’s entire caseload. Who can tell how many more applicants, then this tiny sampling I’ve found in my own files, have been stripped of the attendance deficiency presumption and along with it the right to disability retirement?
Here are two additional examples.
A client was disabled by exposure to substances in the workplace. Her physician diagnosed her with Multiple Chemical Sensitivities.
OPM denied her application, because
“the diagnosis of Multiple Chemical Sensitivities is not a recognized diagnosis.”
It’s true, that at this time, Multiple Chemical Sensitivities is not a recognized diagnosis. But, so what?
The MSPB has held that
“. . . the failure to establish the precise name of a medical condition does not necessarily render a disability claim less credible. The foremost consideration is whether the appellant's medical condition renders her incapable of performing the essential duties of her position.” Pugh v. OPM, 38 M.S.P.R. 184 (1988)
Numerous other decisions parrot the same idea. Certainly, OPM knows that under the law, all medical conditions qualify for disability retirement no matter their name or even if don’t have a name.
Ignoring such MSPB holdings is nothing less then lying to applicants in an attempt to cheat them out of disability retirement.
OPM often victimizes applicants with diseases such as Fibromyalgia and Chronic Fatigue Syndrome. The technique is to say that these are not disabling diseases and therefore cannot be grounds for disability retirement.
In ruling against one client, OPM said
“Fibromyalgia is not a disabling disease because it waxes and wanes”
In rejecting another Fibromyalgia case, it said
“You have been diagnosed as having Fibromyalgia. This chronic condition is neither progressive nor life threatening and is generally not considered to be a basis for a disability determination. This condition is generally considered to be self-limiting and of a periodic/episodic nature.”
There is not a single MSPB case which denies disability retirement to applicants with Fibromyalgia or any other disease, because it “waxes and wanes” or because it is not “progressive” or “life threatening,” or because it is “considered to be self-limiting and of a periodic/episodic nature.”
Under MSPB case law, the particular characteristics of a medical condition are irrelevant. What’s relevant is whether the disease or injury is shown to preclude you from performing the full scope of your official job position and can be expected to do so for the next year.
OPM cheated these clients by inventing phony limitations and then using them to deny disability retirement.
Disability retirement is not charity; it is not some handout. Disability retirement is a right. Employees who have paid into the retirement fund for the requisite period, are entitled to disability retirement if they meet the legal standards. To phony-up the standards, in an effort to deny the benefit are outrageous.
We have a real problem with Physician’s Statements from doctors who are too busy to spend time writing them and unwilling to go out on a limb to say it like it really is. So you have to work around this.
When it comes to doctors, you have to…
Following up on my earlier post about getting fired for misconduct:
If you are fired for misconduct, that does not mean your agency can wash its hands of you and not cooperate with your claim for Disability Retirement. Your agency is still required…
Who decides if I have a right to collect disability retirement?
ANSWER: OPM decides. If it turns you down in a final decision, though, you can then appeal to the Merit Systems Protection Board (MSPB), and the Board will decide. Your agency does not make that decision (unless you happen to work for OPM).
What are the specific questions that OPM will ask me?
ANSWER: OPM requires that you fill out an "Applicant's Statement." A cursory review of the questions asked demonstrates OPM's interest in deficiencies in performance, attendance, and conduct. To the extent possible, your responses should be directed to those issues. The following is a composite of the four most critical questions asked of both FERS and CSRS employees:
Describe how you are deficient in your job in respect to performance, attendance, or conduct.
Describe your medical condition(s) (i.e., disease or injury) and how it interferes with performance of your duties, attendance, or conduct.
Describe any other restrictions on your activities imposed by your medical condition(s) (i.e., disease or injury) which you believe should be considered in determining your ability to perform your job in your agency and in other positions in your agency for which you may otherwise be qualified.
What efforts have been made by your agency to change your work area or your job to make it possible for you to perform useful and efficient service in your position or another position?
The Applicant's Statement is the only government form that provides you with an opportunity to express the severity of your disabling symptoms. As you can see from the few questions on the form, it fails to elicit the information that OPM really needs in order to assess your case. In my practice, I have developed a far more detailed questionnaire that allows my clients to provide OPM with the information that it really needs to make a decision. Unfortunately, there is no guarantee that they will read it. But there is no guarantee that they will read their own form either.
Remember that your responses on the Applicant's Statement may be useful not only to OPM, but also to your physician who will draft the Physician's Statement (Form SF 3112). Your doctor may have heard your complaints over and over again, but nothing is more effective than having them detailed in writing while your doctor is drafting the Physician's Statement.
Here's an example of the importance of detailing your symptoms to both OPM and your physician. Tests may demonstrate that you have a medical condition known to cause fatigue. However, the fact that you suffer from this particular medical condition means nothing to OPM, and may not in itself remind your doctor of your particular disabling symptoms. Through your answers to these questions, you can make the point that in your particular case, your medical condition causes fatigue, and that your fatigue is so bad that it precludes you from getting anything accomplished at work, because (you might explain further) after being at the office for two hours you can no longer stay awake, and when you are awake, you can't remember from one moment to the next what you just read on the computer screen. This tells everyone much more than just stating that you suffer from fatigue.
Can my agency influence whether or not I get disability retirement?
What if my physician refuses to assist in my disability retirement application?
ANSWER: Get yourself another physician, at least for the purpose of preparing the Physician's Statement (Form 3112 C). It's done quite successfully. While certainly it is best to be supported by a physician who has had a longstanding relationship with you, nothing in the law requires that. It is particularly helpful in such circumstances if the reporting physician has available all prior medical records and is able to review the totality of the situation.
I have represented Federal government employees and Postal workers seeking OPM Disability Retirement for a long time. I also represent them in agency leave problems such as AWOL, FMLA, LWOP, etc. Leave problems often come along with being sick and disabled. I have stuck to this area of the law for more than 30 years of the 50 years I have been a lawyer.