Last Updated on July 25, 2009
A more extensive article on the recent case of Reilly v. OPM has already appeared in FedSmith.com, because it is an important step forward in Federal Disability Retirement Law. Decided July 15, 2009 by the United States Court of Appeals for the Federal Circuit, it topples another idol of a false standard imposed by OPM: that medical documentation which is written by a doctor after a Federal or Postal employee is separated from Federal Service may be dismissed as being near-irrelevant in evaluating and reviewing a Federal disability retirement application. This has never made sense, since many medical conditions are progressive and degenerative in nature, and that is precisely 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 “inferencesabout 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.” Of course medical evidence gathered within the 1-year period after separation of service should be given probative value. The Court in Reilly states that principle clearly.
Sincerely, Robert R. McGill, Esquire
Thank you for this well reason set of comments. The VA tells me my horrible spine with 3-lower back surgeries – all of which occurred only 2-years after I retired from the Air Force, isn’t a condition they can compensate, since it didn’t impact my military service. I believe progressive spinal degeneration is the same thing that OPM decided and I hope to use your comments to convince them.
Question please: The Disabled American Veterans group told me a FERS employee who has to file for disability receives 80% the first year and then 60% for the remainder of his/her life. The FERS material shows 60% the first year, and 40% for subsequent years. Any idea where I can find something in writing – C.F.R. perhaps – showing me how disabled vets are handled differently than non-disabled vets and non-vets when they must go for disability from FERS? Thank you.