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New Developments in Federal Disability Retirement

The author says that two recent cases provide greater legal muscle for Federal and Postal employee in filing for Federal disability retirement benefits and represent needed legal refinements in the “evolving” process of law.

When the law “works”, it is indeed a benefit to society. Now, cynics will view the “working of law” as that which benefits one side of the equation, while undermining or damaging the “opponent’s” side of the case. Thus, according to this perspective, every case, every decision, every statute is simply the natural consequence resulting from the adversarial process – where there are winners and losers. A corollary of this view encompasses the idea that “history” is merely that which is written by the prevailing power-structure, and that no objective standard of historical analysis exists, but merely subjective perspectives combined with power, position, and advantage.
Yet, as the Aristotelian view is that man’s essence is constituted by his rational nature, so the evolution of case-law, expanded, delineated and explained by Court decisions rendered over time, reveal that rationality and reasoned approaches to complex problems reflect a logical structure.  Legal refinements pursuant to the initial passage of a statute are the inevitable evolving process of the law. When the application of rational principles and the rules of logic reflect a reasoned perspective, it tends to benefit society as a whole.
A recent case, decided on July 15, 2009, reflects a rational, reasoned approach, and benefits all Federal and Postal employees who become disabled while employed by the Federal Government, and who find a need to file for Federal Disability Retirement Benefits under FERS or CSRS.  Yes, it is a case decided by the U.S. Court of Appeals for the Federal Circuit, where there were two “litigants”, and yes, one side won, and the other side lost.
But the mere fact that there are winners and losers does not mean that the proper law was not decided; rather, when a decision is rendered with structural compliance with statutory authority, with reasoned principles delineated concisely, one may objectively declare that the “law” is working. It represents a “good day” when Federal and Postal employees are reinforced with “the law”. The principles expounded  may not immediately benefit the Federal or Postal employee today or tomorrow; but when the need for filing for Federal disability retirement benefits comes to fruition, the benefit of today’s good law will be there for you.
Before I briefly discuss the “new” case, however, let me set the scene with what I consider a consistent, reasoned and logical “foundational” case – almost a precursor of the present case. Previously, I had written a number of articles on the recent case of Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), precisely because it represented a major (and, in my view, a correct) decision which “toppled” an irrational imposition of a baseless standard championed by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning validity of medical findings (example of the absurdity: How do you prove the existence of pain?
While an MRI may show a given physical condition, you cannot prove that such a physical condition equates to pain, leaving aside any quantification of such pain. Indeed, all that can be shown would be, at most, a 1-to-1 correspondence between an image of a dysfunction which exists simultaneously with a private sensation known as “pain”. Similarly, how do you prove the existence of Major Depression?  Anxiety?  Panic attacks?). Thus, the false imposition by the Office of Personnel Management of a legal standard (which, by the way, is not delineated in any statutory authority, as pointed out by the Court in Vanieken-Ryals) was correctly swept away by the Federal Circuit Court.
Further, Vanieken-Ryals stood for the proposition that, so long as a Disability retirement applicant’s treating doctor arrives at the medical opinion based upon “established diagnostic criteria” which are “not inconsistent with generally accepted professional standards”, unless OPM can attack the credentials or veracity of the medical opinions, proper probative weight must be given both by OPM and by the Merit Systems Protection Board in reviewing, evaluating, and rendering a decision on a Federal disability retirement application.
Vanieken-Ryals  stands for the important proposition that, absent a statutory basis, a federal agency (i.e., The Office of Personnel Management) will not be allowed to arbitrarily impose legal standards which are non-existent, which were never mandated by Congress, and which are not grounded in a sound, legally-defensible, rational basis.
Now, Reilly v. OPM, decided July 15, 2009 by the United States Court of Appeals for the Federal Circuit, has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service may be considered near-irrelevant in evaluating and reviewing a Federal disability retirement application.
This has never made sense, for at least 2 reasons: First, since a person is allowed to file for Federal disability retirement benefits within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant?  Second, and certainly logically connected to the first reason, medical conditions rarely “appear” suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. “The field of forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition,” the Court in Reilly argued, citing the classic example that “inferences about prior intoxication can be drawn from blood alcohol tests conducted at a later time.” Further, where “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent evidence can be very probative of a prior disability.”
Thus, what the Court in Reilly is stating, is that it makes absolutely no logical sense to allow a Federal or Postal employee under FERS or CSRS to have the legal right to file for disability retirement benefits within one (1) year of being separated from service, and yet have the probative weight of medical reports post-dating the separation completely undermined by OPM’s baseless assertion that such medical documentation fails to address the medical conditions during the time of Federal service.
Here, a caveat is in order: This is not to say that medical reports and documentation no longer needs to address and “relate back” to the period of Federal service; the disability retirement applicant still needs to create the tripartite nexus between (a) the Federal position, (b) the medical condition, and (c) the inability to perform the essential elements of (a) because of (b). This obviously requires medical documentation which “relates back” to the period of Federal service.
What the case does do, however, is to reverse OPM’s arbitrary and capricious methodology of reviewing post-service medical documentation as being irrelevant and immaterial merely because it fails to directly address the medical conditions during the time of Federal Service. Certainly, progressively degenerative conditions can be reasonably argued to have previously – on the spectrum of linear time – impacted and prevented the performance of essential elements of a job if the doctor can describe the severity of the present condition and compare it to a prior point in time – during the time of Federal Service.
Furthermore, as a practical matter, it is still important to try and obtain the proper medical documentation during the period of Federal Service, for pragmatic reasons:
  1. often, health insurance is an issue, and while reinstatement of health insurance normally occurs upon approval of a disability retirement application, temporary loss of health insurance may lead to greater difficulty in obtaining proper medical documentation from one’s treating doctors, and
  2. doctors often show some trepidation in “relating back” medical conditions, supposing it to reflect negatively upon their medical integrity – often a byproduct of having been subjected to depositions or cross-examinations in other legal contexts.
In conclusion: Vanieken-Ryals & Reilly are two recent cases which provide greater legal muscle for the Federal and Postal employee in filing for Federal disability retirement benefits. They represent needed legal refinements in the “evolving” process of law. Both cases strengthen the position of Federal and Postal employees in filing for disability retirement benefits. Grant another win for the Federal employee, the law, and the process of law.  Reilly expounds a rational, logical opinion, citing ample legal precedents and providing sound reasoning – reinforcing the philosophical view that, indeed, Aristotle was fundamentally right after all — that man’s essence is still constituted by his rational nature.

About the Author

Attorney Robert R. McGill specializes in Federal Disability Retirement cases helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website.