Posted: 12/31/2006 - BRANDING THE APPLICANT A LIAR
Summary:
OPM Hunts Through Disability Retirement Applications Trying To Find Information, No Matter How Irrelevant, To Discredit Applicants.
By Harvey Friedman, Attorney at Law, Washington, DC
A Case In Point.
OPM denied my client disability retirement, claiming that he lied on his application. They politely called it "symptom exaggeration." Their contention was an absurdity and after I embarrassed them for their false claim, they granted disability retirement.
But this should never have happened in the first place!
The following is a true case, with only my client's name changed.
Ralph, was brain-injured in an on-the-job auto accident in 1994 and of course landed in a hospital. Two days later, he was referred to a specialist in brain injuries, who continued to treat him for years thereafter.
Seven years after his accident, Ralph applied for disability retirement. He was receiving OWCP but wanted to protect himself in case OWCP stopped paying benefits.
As part of the disability retirement application, Ralph's doctor drafted a Physician's Statement.
Multiple tests, medications, and treatments by this specialist and others, failed to ameliorate Ralph's disabling symptoms. The doctor described some of those symptoms in his Physician's Statement:
"When attempting to play chess the pieces will move. He cannot concentrate nor can he read for any length of time greater than five minutes or so. After that, the letters become irregular in shape. He becomes dizzy with the pursuing of driving activities. He cannot concentrate for more than one-half hour at any given time in terms of cognitive activities. When attempting to count he loses track. He has problems with memory. He occasionally exhibits a shaking sensation referable to the left lower extremity. He relates that he runs into objects when walking and has fallen fracturing his right ankle. He cannot concentrate nor can he read for any length of time greater than five minutes or so. He complains of decreased fine motor skills. He finds it difficult to write and nearly impossible to type at a computer keyboard or read the graphics on screen."
OPM ignored this information from the doctor. Instead, OPM took a different approach.
The Physician's Statement, which was lengthy and comprehensive, began with Ralph's medical history and started off this way:
"This patient is an unfortunate 45-year-old male who I initially assessed back on 10/21/1994 after he had been involved in a motor vehicle accident occurring on or about 10/19/1994. At that time he was noting headaches, dizziness, cold sweats, itching arms and legs, nausea and vomiting associated with headaches."
OPM latched onto four words in the Physician's Statement, to brand Ralph a liar. The OPM employee who decided the case, claimed that
"Itching of the arms" was indicative of "symptom exaggeration," not any physical problem. Itching of the arms is not a symptom of brain injury."
We agreed. Itching of the arms is not a symptom of brain injury. But so what?
OPM sought to discredit Ralph. It branded him a liar for an irrelevant comment made in the emergency room, seven years before. Seven years later, his disability retirement application makes no claim of "itching arms," nor that "itching arms" were then or are now a symptom of brain injury.
It is as though after the accident, he had noted to a doctor in the emergency room that he had a cold. Now seven years later, finding that comment in the medical record, OPM brands him a liar because colds are not a symptom of brain injury.
OPM took a complete irrelevancy and turned it into a justification for denying disability retirement.
OPM did the same with other irrelevant information.
It noted that at the time of the accident in 1994, "mild neurological findings" were made "on the initial exam."
That "initial exam," took place seven years before Ralph applied for disability retirement. Since that initial exam in 1994, there had been multiple additional examinations, tests and expert consultations.
How could such a finding on that "initial exam" seven years before, dictate the applicant's condition seven years later in light of hundreds of pages of medical records, since then, showing that Ralph’s neurological condition was anything but "mild"? How could it serve as a ground to deny disability retirement seven years later? How could it be used to make Ralph out to be a liar?
It can't, but it was!
It doesn't take a law degree to know that ferreting out irrelevant information to defeat applicants, while at the same time, ignoring relevant evidence in the applicant's favor, is wrong.
It is also illegal.
If Ralph's case was the only one in which I had encountered similar illegality, I would chalk it up to an anomaly. Because I have encountered it in many cases over many years, I conclude that this adjudication technique is purposeful and is designed to defeat the rights of disability retirement applicants.
What's the lesson here? It's simple. If you are denied disability retirement for an irrelevant or silly reason,
run for help!
...back to headlines
......................................................................................
|
