The Circle of Questions and Answers during the Federal Disability Retirement Process

The tragedies befall frequently enough to make some correlative conclusions; of the athlete who fell short of the finish line; of the one who wanted to just make it one last time, only to become severely injured prior to completing the task; and others who become debilitated within the last 50 yards, or within the parameters of being “within reach” of the end.  This is likened to the Federal or Postal employee who has only a couple of years before full retirement.

To the extent that a Federal Disability Retirement application takes on average 8 – 10 months to obtain (from the start of the process of gathering the medical reports, records, etc., until a decision from the U.S. Office of Personnel Management), the question often becomes whether it is worthwhile filing for Federal Disability Retirement when one has come so close to the finish line.

Each case must be assessed and evaluated with the particular facts peculiar and unique to it; but questions of intelligent assessment should be applied, in order to reach an algorithm of rational conclusions:  When I reach the end (or, “if I…”), will my health be preserved enough such that I can enjoy retirement?  Is the reason why I am contemplating Federal Disability Retirement now, because I have in fact already reached the crucial flashpoint where I am no longer able to continue performing the essential elements of my job?  Is there a possibility that I will not in fact be able to endure the remaining X-number of years left before I reach full retirement?

Questions prompt answers; answers, even if preliminary and tentative, begin the process of further questioning; and so the circle of questions and answers begin to guide and resolve the issues which trouble the soul.

Sincerely,

Robert R. McGill, Esquire

 

February 22nd, 2013

Federal and Postal Service Disability Retirement: Don’t Act with Haste

This time of year can result in Federal and Postal employees acting “in haste” — of resigning; of receiving a denial on a disability retirement application and not properly making a decision for one’s future or self-interest; of responding to Agency actions in ways which will not benefit one’s future.

The “Holidays” can be a trying time; those considering filing for disability retirement under FERS & CSRS should take the time to consult with an attorney to review all of the options open, before making any hasty decisions which may impact one’s future and career with the Federal Government.

Remember, even if the Agency is making noises to file an adverse action during this time, or is about to place you on a PIP, or is calling you in for an “investigative interview”, there is always time to respond, and in most cases, a request for an extension of time to respond should, and will, be granted.  Retaliatory agencies and supervisors love to use this Holiday Season, when time is shortened, to file all sorts of adverse actions.

Don’t respond in an inappropriate way; consult an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Developing a Case

In most cases, the normal process of disability retirement for the First Stage of the process is anywhere from 6 – 8 months; some fall towards the 6-month range; some take longer than the 8-month range.  The difficulty in most cases is that the potential disability applicant/annuitant obviously wants to get through the process as quickly as possible, most often in order to get a sense of security for the future, that he or she will have the certainty of the Federal Disability Retirement annuity.  All of this is understandable.

The process — of preparing; of submitting; of waiting as it winds through the various Agency channels and finally to Boyers, PA and then to OPM in D.C. — is a process of high anxiety and anticipation.  Sometimes, however, cases must be patiently developed.  By “developed”, I merely mean that, at times, the doctor is not ready to provide the proper medical narrative report, or to state in explicit terms that a person is no longer able to perform one or more of the essential elements of his or her job, and that the medical condition will last for at least one (1) year.  Patience with the doctor as different modalities of treatments are applied, is often crucial in the development of a case.  My involvement in a case, even before it is fully developed, is preferred, only if to guide the client as the medical case develops, or — as is often the case — on issues involving how to respond to an Agency which is just as anxious for the whole process to begin and end, as is the client.

Sincerely,

Robert R. McGill, Esquire

 

December 3rd, 2009

Federal and Postal Disability Retirement: OPM May Say So, But… (Part 1)

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.”

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,

Robert R. McGill, Esquire

 

See also: OPM May Say So, But… (Part 2)

OPM Decisions of Denial in FERS Disability Retirement Cases

It is a frightening thought that there may be a percentage of Federal or Postal Federal Disability Retirement applicants who read an initial denial from the Office of Personnel Management, and take their words at face value.

From statements such as, “Your doctor has failed to show that your condition is amenable to further treatments” (by the way, when did the Office of Personnel Management obtain a medical degree or complete a residency requirement?) to “you have not shown that you are totally disabled from performing efficient work” (hint:  this is not Social Security, and the standard is not “total disability”), to a full spectrum of error-filled statements in between, one may suspect that there may be a knowing strategy in rendering a denial, knowing that a small percentage of the corpus of disability retirement applicants will simply walk away and not file a Request for Reconsideration.

Further, I suspect that this occurs more often with certain more “vulnerable” medical conditions — Fibromyalgia, Chronic Fatigue Syndrome, Major Depression, PTSD, anxiety, panic attacks; Chemical Sensitivity cases, etc.  Why do I suspect these?  Mostly because such cases are attacked for “lacking objective medical evidence” (see my articles on Vanieken-Ryals v. OPM, and similar writings) and failing to provide “diagnostic test results”, etc.

There was a time, long ago, when it used to mean something when someone said, “The Government says…”  In this day and age, I would advise that you take it to an attorney to review whether or not the words of the Office of Personnel Management are true or not.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Denial at the First Stage

I would like to state that none of my cases have ever been denied at the Initial Stage of filing for Federal Disability Retirement benefits; not only would such a statement be untrue; it would also be unbelievable.

And yes — even the cases that I file on behalf of my clients, get a similarly formatted denial:  a restatement of the criteria for eligibility for Federal Disability Retirement under FERS & CSRS; a discussion with an elaborate reference to doctor’s notes, dates of treatment, targeted extrapolations of statements by the doctors which are not only selectively chosen in a narrow manner to favor the decision of denial, but further, which are often taken out of context.

Some might wonder:  Doesn’t OPM have greater respect for Mr. McGill?  The answer is:  At the First Level, the representative from the Office of Personnel Management is merely making a decision on one of thousands of files, and a template is being used to process and get rid of cases.  However, one must always remember (as I try to remind everyone) that this is a “process”.  A denial at the First Stage of the process is merely part of the greater process.

It is not something to get annoyed at, or concerned about; it is a stage and a decision which must be dealt with, argued against, and rebutted in the proper, rational, legal manner.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When to File

I still get calls by people who state that (A) they are waiting for a year before they are going to file for FERS or CSRS disability retirement, (B)  It hasn’t been a year since they have been on LWOP, but it almost will be, or (C) They are waiting to be terminated so that their year will begin.  Quiz:  Which of the above (A, B or C) is the correct basis upon which to decide to file for Federal Disability Retirement benefits?  Answer:  None of the Above.

Since OPM disability retirement can take anywhere from 6 – 8, sometimes 10 months to get (beginning the time-sequence from the time a doctor is contacted to provide a medical report, to putting the entire packet together, to getting it to the Agency Human Resources Personnel, to getting it to Boyers, PA, to getting it to Washington, D.C., to getting an initial approval, etc.), it is:  A.  Not a good idea to “wait a year” because there is no reason to wait; B. You don’t need to wait a year on LWOP to file for Federal Disability Retirement benefits, and:  C.  You don’t need to get terminated, or separated from Federal Service, in order to file for Federal Disability Retirement benefits.

Let me re-emphasize:  The “1-year rule” has to do with the following:  A.  You have one (1) year from the date you are separated from Federal Service to file for disability retirement — but you can file at any time, whether separated or not, as long as it is not after 1 year after being separated from service.  B. Your medical condition must be expected to last for a minimum of 12 months — but your treating doctor should be able to tell quite easily whether or not the medical condition for which you are being treated will last that long — normally within a couple of months of treatment.

Sincerely,

Robert R. McGill, Esquire

 

August 13th, 2009