MSPB and Federal Employee Attorney Blog

Federal Disability Retirement: Mental Health Conditions and late-filed Disability Retirement Applications

Chris Attig — Sat, 13 Mar 2010 13:27:12 +0000

This blog often references the fact that the MSPB loves its deadlines. OPM is no different. The general rule is that a Federal employee or USPS employee must apply for federal disability retirement no later than one year after separation from Federal Civil Service.

In some situations, however, the Federal employee or USPS worker will not have the mental competence to file an application for federal disability retirement on his or her own. What to do?

There is certain evidence you will want to provide to OPM on initial application, on reconsideration, or to the MSPB on appeal if OPM denies your federal disability retirement application.

That evidence includes:

1) Evidence that the Federal employee or USPS employee lacked sufficient control of his of her mental faculties to pursue an application for federal disability retirement to OPM;

2) Evidence that the Federal employee or USPS employee lacked sufficient control of his or her own mental faculties to provide oral direction to someone else who could have filed an application on his or her behalf; or,

3) Medical Evidence that the mental health condition results in mental incompetence.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee or postal worker, with some power. This information is not widely or easily accessible to Federal Employees or postal workers.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are an employee of the USPS, or a Federal employee under FERS or CSRS, and are considering applying for federal disability retirement to OPM, or would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

Veterans Disability Compensation: How many different ways are there to service-connect Diabetes?

Chris Attig — Fri, 12 Mar 2010 02:35:50 +0000

Diabetes is a metabolic disease. For diabetics, the body does not produce or properly use insulin. Insulin is a hormone that is needed to convert sugar, starches, and other food into energy needed for daily living.

Veterans who are seeking disability compensation benefits from the VA for diabetes, often see the same “canned” responses from the VA Regional Office. Typically, there is a finding that the diabetes or symptoms of diabetes did not appear to a compensable degree within one year of discharge from the military. The second most common error we see is when the VA Ratings Decision relies solely on a medical opinion from a VA Medical Center Doctor who concludes that it would be pure speculation whether the present diagnosis of diabetes was caused by or connected to military service.

As we say here at the Attig Law Firm, there is more than one way to skin a cat. For Veterans who are trying to establish service connection for Diabetes, there are at many ways to skin the proverbial cat. Four (4) of them are described below.

First, the Veteran can show “direct service connection“. This is usually done by combing through the Veteran’s military service records to find any indication of symptomatology of diabetes. Then, post service medical records and private medical records are scoured for any evidence that this symptomatology continued from discharge until diagnosis. When we are looking through medical records or the Veterans’ C-File (Claims File) on behalf of the Veteran, we are looking for certain symptomatology.

For Type I Diabetes, we are looking for any indications in and after the Veteran’s military service that indicate blood sugar levels that are consistent with a diagnosis of diabetes or approach diabetic levels, frequent urination, unusual thirst, extreme hunger, unusual weight loss, extreme fatigue and irritability.

For Type II Diabetes, we are looking in the Veterans military service treatment records, C-File, or post-service treatment records, for any of the Type I symptomatology, and also frequent infections, blurred vision, cuts/bruises that are slow to heal, tingling or numbness in the extremities, and/or recurring skin, gum or bladder infections. With Type II Diabetes, it is important to note that in some situations, the Veteran may experience no symptomatology. In situations like this, the Veteran is going to need the assistance of a skilled Veterans’ advocate to determine whether service connection can be proven, and if so, how to develop the evidentiary record before the VA Regional Office or the Board of Veterans Appeals.

Second the Veteran can show “secondary service connection“. This is usually done by showing that some injury, which is already or can be service connected, is the cause of the Veteran’s diabetes. I have seen many try to attempt this proof, and very few are successful. However, there are situations when it can, and should, be considered by the VA Regional Office before the issuance of the VA Ratings Decision.

Third, the Veteran can show “service connection by legal presumption.” If Diabetes is diagnosed in service, or if the symptoms of Diabetes present to a compensable degree (10%) within one year of discharge, the Veteran’s Diabetes will be presumed to be service-connected.

Fourth, certain Veterans that set foot on soil in Vietnam and were exposed to Agent Orange are entitled to another legal presumption. On November 9, 2000, the VA announced that Vietnam veterans with Type-II diabetes would now be eligible for disability compensation.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.

It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.

Federal Disability Retirement: What happens when your medical condition prevents you from timely filing an MSPB appeal for disability retirement?

Chris Attig — Thu, 11 Mar 2010 13:26:12 +0000

The Federal employee or postal worker applying for FERS or CSRS federal disability retirement has thirty (30) days from receipt of the OPM reconsideration to file an MSPB appeal challenging OPM’s denial of federal disability retirement Benefits.

Often, the federal employee or postal worker who cannot or has not hired an attorney runs the risk of missing this deadline if their medical condition worsens and hospitalizes them. Now, the MSPB loves it deadlines, and will find any missed deadline as good enough reason to dismiss an appeal. The MSPB Administrative Judge may waive the untimely filed MSPB appeal for good cause; however, practically speaking as an experienced practitioner before the MSPB, the circumstances under which most MSPB Judges will waive an untimely filed appeal are exceedingly and increasingly rare.

The best thing to do is – if you know your MSPB appeal may be late – is to file a request for an extension to the 30 day limit. There is no telling whether the particular MSPB Regional or Field Office will grant that extension (my experience is that they are often ignored at the Regional or Field level). Even if it is ignored, you can later argue that you exercised due diligence before the deadline passed.

If the Federal Employee or Postal worker does miss the deadline to file their MSPB appeal challenging OPM’s denial of federal disability retirement benefits, the best chance that the Appellant has to prove good cause is to submit an affidavit outlining the following facts:

(1) the time period during which the Postal Worker or Federal Employee suffered from the illness;

(2) medical and/or corroborating evidence showing that the USPS or Federal employee suffered from the alleged illness during that time period; and,

(3) an explanation by the Federal employee or Postal Worker as to how the illness prevented him or her from timely filing an MSPB appeal or a request for an extension of time

Veterans Benefits News: VA to automate its Agent Orange claims process.

Chris Attig — Tue, 09 Mar 2010 15:57:22 +0000

USA Today is reporting that the VA intends to announce plans today to automate disability benefits claims for those Veterans suffering from diseases or medical conditions related to their Agent Orange Exposures during the Vietnam War.

You can read the full article here. Though details on the “automated system” are not yet available, the automated claims system will be used only for Veterans applying for benefits for the new conditions identified as presumptively connected to Agent Orange this past October 2009.

In October 2009, the General added three more illness to those linked to the herbicide: Parkinson’s disease, B-cell leukemia and heart disease. He told Congress this would generate another 228,000 claims in the next two years.

General Shinseki’s committment to Vietnam veterans, Agent Orange exposure victims, and his commitment to reducing the backlog of VA claims appears to be genuine and it is hoped by this and other Veterans’ advocates that his commitment and actions have staying power.

If your VA claim for disability benefits is denied, a Veteran Service Organization or a VA Benefits lawyer should be able to help you determine whether or how to appeal to the BVA, CAVC, or the Federal Circuit.

If you would like to consult with legal counsel regarding a new claim to the VA for benefits related to Agent Orange Exposure, or how the new process might affect your claim, feel free to contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Federal Disability Retirement: Can absence, alone, be enough to qualify a Postal or Federal Employee for CSRS or FERS disability Retirement through OPM?

Chris Attig — Tue, 09 Mar 2010 15:44:54 +0000

Can absence, alone, be enough to qualify a Postal or Federal Employee for FERS or CSRS disability retirement through OPM?

Generally, no. In many situations, a Postal worker or Federal employee’s medical condition is so severe that they cannot even attempt the attendance required of them. In this cases, the employee’s absence from work due to a medical condition will be a factor in deciding whether the federal disability retirement applicant is eligible for disability retirement benefits. However, there will usually need to be corroborating evidence that establishes that the Federal employee or postal worker has some impaired performance of his or her work duties.

This corroborating evidence need not be overwhelming or substantial, but it does need to be persuasive evidence that the root cause of the attendance is the disabling medical condition; otherwise, the evidence will likely lead OPM and/or the MSPB to conclude that the root cause for the inability to perform is the failure to attend work.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirementis denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are an employee of the USPS, or a Federal employee under FERS or CSRS, and are considering applying for Federal Disability Retirement to OPM, or would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

Federal Disability Retirement: How does a Postal or Federal Employee meet their burden of proof at the MSPB?

Chris Attig — Sat, 06 Mar 2010 14:41:18 +0000

Assuming that a postal worker or federal employee meets all the basic eligibility requirements for FERS or CSRS federal disability retirement, they will have to persuade the MSPB Administrative Judge that their medical condition renders them unable to provide useful and efficient government service.

How exactly do you persuade the MSPB of this? There are five (5) ways a USPS or Federal employee can use evidence to persuade the MSPB Administrative Judge that his or her medical condition is sufficiently disabling to warrant receipt of federal disability retirement. (If you are a postal worker or federal employee filing for federal disability retirement, you should use the following list as your application checklist – evidence of each of the following should be included in your initial application to OPM, to give you the best chance for receiving federal disability retirement benefits.)

(1) Objective clinical findings. These are the tests that doctors perform to diagnose a condition. They could be as complex as an MRI, CT-Scan, or as straightforward as blood pressure tests, lab results for blood and urinalysis, or something like the Beck Depression Inventory. Whatever form it takes, objective clinical findings are the data on which doctors and medical professionals base their opinions.

(2) Diagnoses and medical opinions. Quite simply, this is the doctor’s conclusions based on the empirical evidence described above. The more that a doctor’s opinion ties in the empirical and objective clinical findings, the more persuasive his or her medical opinion is (at least before the MSPB).

(3) Subjective evidence of pain and disability. In the law, the word subjective is often used to describe things that are perceived, thought or felt by an individual himself (or herself). In other words, if I believe that the pain that keeps me from getting out of bed quickly in the morning is a result of my myasthenia gravis, then that is my “subjective” opinion. If a doctor, however, testifies to that same conclusion, it is considered “objective” opinion. (This is oversimplifying the distinction, but I think you get the idea). Federal and Postal employees applying for federal disability retirement should consider including their own affidavit, sworn under penalty of perjury, explaining the limitations caused by pain and the symptoms of the condition, in their application for federal disability retirement.

(4) Evidence relating to the effect of the appellant’s condition on his ability to perform in the grade or class of position last occupied. Sometimes this is nothing more than medical reports or summaries. However, keep in mind that the folks at OPM that are reviewing the postal worker or federal employee application for federal disability retirement usually have no formal medical training. Take your position description to each of your doctors, and ask them to identify each task in that PD that you cannot do because of your medical condition, and then explain why in laymen’s language. This type of “report” from a doctor can be very persuasive to an OPM employee, but more importantly, it is extremely helpful to an MSPB Administrative Judge who will need to be educated as to your medical condition and its symptoms, effects, etc.

(5) Evidence that the appellant was not qualified for reassignment to a vacant position at the same grade or level as the position he last occupied. In most cases, the Supervisor certification is going to be sufficient evidence. However, in some cases, applicants have spent months or years trying to get an accommodation or reassignment through the Rehab Act, ADA, or ADAAA processes or through a complaint to the EEOC. If you have evidence that the Agency has denied your accommodation requests, other than the supervisor statement, you may want to consider including that as well.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirementis denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are obese, or morbidly obese, and would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, or any attempts to seek to have federal disability retirement benefit reinstated by OPM, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

Federal Disability Retirement: Do I need to hire an attorney for my disability retirement application?

Chris Attig — Fri, 05 Mar 2010 14:53:00 +0000

By far, the most common question that applicants for FERS or CSRS disability retirement ask the Attig Law Firm is whether and when a federal employee or postal worker should hire an attorney. There is no easy answer to this question. No case or situation is the same, so there is no way that any attorney can give you a “standard” answer to this question. Here is the general guidance that we give to postal workers or federal employees who ask us this question.

There are a number of factors that the federal employee or postal worker should consider in deciding whether and when to hire an attorney for their FERS or CSRS disability retirement application. Here are the factors we think are most important:

1)Do you have the time and resources to deal with your Agency, OPM, and/or the Merit Systems Protection Board (MSPB)? Dealing with OPM, the MSPB (and many federal agencies that provide employee or citizen benefits) can consume and exhaust an applicant. There will be requests for more information. There will be delays. There will be incompetence and procrastination by the Federal agency, OPM, that is handling your claim for federal disability retirement. If you have the time and resources – and most importantly, the patience and resolve – to anticipate these problems and to effectively confront them or to plan for them, then you may not need to hire an attorney.

2) Do you have confidence in the “system” and your ability to navigate the “system”? It’s a fact of life that Federal Agencies that provide benefits to postal workers, federal employees and veterans play games. The VA, for example, has recently been caught shredding and throwing away Veterans claims for benefits on a large scale. OPM will often deny a postal worker or federal employee application for federal disability retirement just to see if the applicant will push back on their decision. If you do not feel confident that you can handle the “games” that the Agencies play in applications for FERS or CSRS disability retirement, than hiring an attorney may take a lot of stress of your plate, and help you to present more favorable arguments and evidence in support of your application.

3) Are you physically or mentally capable of dealing with assembling the evidence, filing the application, and if necessary, pushing back on your employing Federal Agency or the OPM? We talk to postal workers and federal employees every day whose medical conditions are so advanced that they are physically or mentally unable to handle the rigors of producing a thorough and complete and well-documented application for federal disability retirement. If you are in this situation, or if you are the spouse of a postal worker or federal employee in this situation, hiring an attorney may allow you the time to focus on your treatment, and let someone else handle the deadlines.

4)Can you manage all the deadlines without fear of missing any? Federal agencies, the MSPB, and OPM love their deadlines. The caseloads before OPM, the MSPB and other federal administrative forums are so high that the easiest way to deal with the backlog of cases is to quickly deny benefits to those that miss their deadlines. This is a fact of life, and one that the federal employee or postal worker must be prepared to deal with. Every day, I read MSPB decisions about individuals who would likely have received a deadline but for the fact that they missed a key deadline. If you have concern that you might miss a deadline – or might not know about a deadline in an application for federal disability retirement – then hiring an attorney may be worth greater consideration.

5) Do you have the financial resources to hire an attorney? Attorneys cost money; though we at the Attig Law Firm love the work we do to help Federal Employees, postal workers and US Veterans before the MSPB, EEOC, OPM, OWCP and the VA, our law firm is a business. We strive to make our services more affordable, and are always looking for ways to keep our fees as low as possible by balancing two goals: keeping the business profitable so we are around to help more federal employees and postal workers and veterans, and ensuring that our fees help us remain accessible to the average federal employee or postal worker. If you are concerned about the cost of an attorney, always talk to the attorney about ways to make your fee more affordable. The Attig Law Firm offers fixed fees and payment plans, and we are always willing to hear your ideas about how to keep your costs down. Can you get medical records for your attorney? If so, this can help keep the cost down. Are you willing to handle some of the administrative work on your case? If so, the attorney may be able to lower the cost. In certain situations, the Attig Law Firm does represent Federal employees or postal workers “pro-bono” (for the public good, at no charge). Our criteria for pro-bono representation are specific, and we reserve this type of representation for those people who need it most.

6) Will an attorney “add value” to your application? In some situations, it is very clear that OPM should grant federal disability retirement benefits to a postal worker or federal employee. In other cases, it is not so clear. In still other cases, it may appear to clear to the rest of the world that OPM should grant the benefits, but there may be facts which could lead to a denial of the claim if not addressed early, completely, and effectively by the federal disability retirement applicant. An attorney who is experienced representing federal employees and postal workers in applications for federal disability retirement can identify strengths and weaknesses in your case that you might not know about, or that you may not know how to plan for. For these reasons, if you are considering applying for federal disability retirement, always talk to more than one federal disability retirement attorney to see if they can help spot some of these issues for you. If, after learning the strengths and weaknesses and possible “wrinkles” in your case, you don’t feel comfortable or confident dealing with OPM or the MSPB, an attorney may be able to “add value” to a postal worker or federal employee’s application for FERS or CSRS disability retirement.

There are always other factors to consider that are unique to your particular application for federal disability retirement. For those making an original application for federal disability retirement to OPM, we never charge a consultation fee.

Call us and talk to us for 30 minutes about your situation. In fact, call more than one attorney!

Frequently, I will tell the federal disability retirement applicant to call and talk to other attorneys before making the decision whether or when to hire an attorney. Attorneys look at cases very differently, and what one attorney sees as a problem, another may not see at all. What one attorney sees as being unimportant, another attorney may see as a major storm-cloud on the horizon. The only way you can learn about all this is by calling and talking to attorneys about your claim. Get offers of representation in writing from those attorneys, and then use the above checklist to decide whether or not you should hire an attorney for your FERS or CSRS disability retirement application.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirementis denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are obese, or morbidly obese, and would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, or any attempts to seek to have federal disability retirement benefit reinstated by OPM, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

Veterans’ Benefits: Shinseki commits to fixing broken VA disability system

Chris Attig — Fri, 05 Mar 2010 13:41:14 +0000

General Shinseki, Secretary of the Department of Veterans’ Affairs, has committed to fix what many call the broken VA disability system.

The General indicated that, to start looking for solutions, the VA will start pilot projects in the following Regional Offices: Pittsburgh (Pennsylvania), Little Rock (Arkansas) Providence (Rhode Island), and Baltimore (Maryland). Shinseki’s plan is to reduce the backlog by 2015, with a goal that a veteran wouldn’t wait more than four months for a claim to be processed.

You can read the full Washington Post article by clicking here.

If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Federal Disability Retirement: Seeking Reinstatement of Benefits

Chris Attig — Thu, 04 Mar 2010 12:59:58 +0000

In some situations, OPM will grant your FERS or CERS disability retirement benefits, and later, make a determination that you are restored to earning capacity. At that point, they will stop paying your federal disability retirement benefits.

Many times, this happens in the case of annuities granted for mental health conditions like depression, PTSD, anxiety or stress disorders, etc. The annuitant, after treatment, may see his or her condition temporarily improve, only to return to its disabling state at a later time. When that happens, can a Federal employee ask OPM to reinstate their federal disability retirement benefits? The answer is yes.

The standards for proving reinstatement are slightly different depending on the circumstances under which your annuity was initially terminated.

If the federal disability retirement annuity stopped because you were found to have recovered from your disability, the annuity may be reinstated as of the date of a current medical examination showing that the disability for which you retired has recurred, so long as: 1 ) you are not currently employed in a position subject to retirement coverage; 2) you have not established new title to an annuity (immediate or deferred), due to re-employment after your disability annuity was terminated; 3) you are not age 62 or older; and 4) you have not been restored to earning capacity.>

If the federal disability retirement annuity stopped because you were found to have been restored to earning capacity, the annuity may be reinstated effective the first of the year following any calendar year in which your earning capacity falls below the 80% limitation, so long as: 1 ) you are not currently employed in a position subject to retirement coverage; 2) you have not established new title to an annuity (immediate or deferred), due to re-employment after your disability annuity was terminated; 3) you are not age 62 or older; and 4) you have not medically recovered from the disability for which you retired.

If you seek reinstatement of previously terminated federal disability retirement benefits, the process is the same: apply to OPM first. If denied, seek reconsideration. If still denied, file an appeal to the MSPB.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirementis denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are obese, or morbidly obese, and would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, or any attempts to seek to have federal disability retirement benefit reinstated by OPM, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

Disability Retirement: Can obesity form the basis for an application for disability retirement?

Chris Attig — Tue, 02 Mar 2010 13:05:15 +0000

The subject of today’s post is whether obesity, or morbid obesity, might qualify you for FERS or CSRS Disability retirement through OPM.

Obesity is a well-recognized medical condition. Unfortunately, too many MSPB judges view this condition as one that is the “fault” of the person with obesity. Medical experts have identified hundreds of medical conditions, or physical or genetic factors, which can cause obesity, including: reduced metabolic rates, pituitary gland disease, pituitary gland tumors, underactive thyroid, Prader-Willi syndrome, Stein-Leventhal syndrome, Frohlich syndrome, certain types of brain tumors, craniopharyngioma, pseudohypoparathyroidism, chromophobe adenoma, etc., etc.

Despite medical evidence and testimony showing that obesity is not caused simply by eating too much, the MSPB still sticks to an archaic legal analysis of the condition.

Many MSPB decisions in disability retirement cases relating to the medical conditions of obesity or morbid obesity start from a faulty premise – the legal equivalent of a belief that the earth is flat. This faulty premise is that the person with obesity simply eats too much or that obesity is a personal choice. The MSPB decisions follow this faulty premise to its conclusion, often finding that the Appellant failed to take advantage of medical suggestions for exercise and weight reduction programs. As a result, the Judges conclude that the disability for which the Appellant seeks FERS or CSRS Disability retirement “…flowed not from the disease or injury itself, as required by statute, but from voluntary failure or refusal to take available corrective or ameliorative action.” One memorable decision hinted that extreme measures, such as “modified fasting” or “bypass surgery” might be too drastic to expect a disability retirement applicant to undergo.

There are two ways to approach this judicial and/or institutional prejudice against the obese or morbidly obese in the application for disability retirement or the MSPB appeal of OPM’s denial of FERS or CSRS Disability retirement applications.

The first – and best – way is to take away the possibility that OPM or MSPB can reach the conclusion – prove to OPM or the MSPB that you have attempted to take ameliorative or corrective action for the obesity. Have your doctor certify exactly what treatment plan he or she laid out for the obesity, whether you followed that treatment plan, and whether it had a “corrective” or “curative” effect. All other things being equal, the MSPB or OPM cannot disqualify you from eligibility for disability retirement so long as you comply with your doctors orders and treatment (within reason, as is discussed elsewhere in this blog).

The second is to challenge the prejudice. Like many mental health conditions, obesity is often wrongfully believed to be a function of personal choice. The only way to change bad law is to fight it. Though cases in the MSPB move very quickly, the law moves very slowly, and it will take a long and concerted effort to challenge the MSPB’s institutional prejudice against the obese or morbidly obese.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirementis denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are obese, or morbidly obese, and would like to discuss your application for federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyerat the Attig Law Firm to schedule a telephone consultation.