Federal and Postal Service Disability Retirement: Psychiatric Disabilities & the Holidays

Thanksgiving, Christmas, New Years & the Holidays; psychiatric disabilities of Major Depression, Anxiety, panic attacks, and many others; the mixture of the two often create an admixture of conflicting emotions, enhancing and exacerbating the psychiatric disabilities.

Unfortunately, the “Holidays” are a time when stresses and anxieties are further exacerbated; we are all meant to be “happy” and in the “holiday spirit”, when in fact the gathering of friends, family and gift-giving exponentially emphasizes the medical conditions which people suffer from, especially psychiatric conditions.

For Federal and Postal employees considering filing for Federal Disability Retirement under FERS or CSRS, the “Holidays” should be a time of rest and reflection; to determine the course for the future; whether the future holds continuation of a long and productive career, and will it continue until the time of regular retirement, or is this the time to consider filing for Federal Disability Retirement.

The “long-term view” must be taken; not to make a hasty decision because of the exacerbating circumstances of the Holidays; rather, to see beyond the holidays, and make the proper decision based upon an “objective perspective” of the “now”, as well as of the future.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Right Time

For each Federal and Postal employee, there is a “right” time to file for Federal Disability Retirement benefits under FERS & CSRS.  By “right time”, I do not mean as to the proper timing in the actual filing of a Federal Disability Retirement case — i.e., whether it should be before or after separation from service, whether at the end of the year, the beginning of the year, etc.  No, by “right” time, I refer to the time when a Federal or Postal employee — that person who has put in all of those many years of loyal service, managed through pain, discomfort, overwhelming stresses, anxieties, fears, chronic and intractable pain, etc. — comes to the conclusion that he or she cannot continue in this mode of existence anymore.  Whether or not a Federal Disability Retirement case is filed with an agency or at the Office of Personnel Management in one month as opposed to another, is ultimately not of great importance; whether a person who is suffering from a medical condition for months, or years, and has been adept at hiding the daily pain and suffering — whether that person has come to a decision that it is now the “right time” to file for disability retirement, makes all the difference.  Each person must find that right time.  “How” and “when” are the two questions which must be answered, and only the Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS can answer such questions.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Initial Step Is the Most Difficult

I find that the initial step in filing for Federal Disability Retirement is the most difficult step for people to take.  It is often a psychological block.  I have spoken on this issue in the past.  For a Federal or Postal worker, especially in these constrained economic times where the job market outside of the Federal Sector appears restrictive, at best, the pressure of one’s medical conditions and the impact upon one’s job, results in an anxiousness when it comes to filing for federal disability retirement under FERS or CSRS.  Certainly, it is a significant pay cut.

Certainly, it is a worry that — although one may be able to make up to 80% of what one’s (former) Federal salary currently pays — it may be that the private sector may not offer the opportunities to make up the difference in the pay cut.  Yet, the choices are often stark and untenable; for, at some point, it becomes clear that one’s medical conditions prevents one from performing the essential elements of the job.

As such, the only and best choice is to move forward:  in fact, even in this economy, creativity will be rewarded.  Private companies actually find independent contractors who carry his or her own health insurance a plus; part-time work is offered more readily in a bad economy precisely because it allows for companies to obtain necessary work and skills without having to pay the “extra” benefits.  The initial step is the most difficult; after stepping beyond the difficulty, Federal and Postal workers who obtain disability retirement benefits find that there is a different and better future — even in this economy.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: Perennial Issues

Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms.  The one which needs to be addressed, again, is the “1-year” issue:  there are actually two (2) questions which keep resurrecting themselves: A.  Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year. 

As to the former:  The statute of limitations begins to toll when a person has been officially separated from Federal Service.  This means that the Agency must take you off of the Federal rolls.  If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun.  On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated.  At that point, you have one (1) year to file your Federal Disability Retirement application. 

As to the latter (Issue “B” herein):  In most cases, it is a prospective issue.  It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year.  In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty.  Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway.  In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The First Denial

One should not be overly panicked when the Office of Personnel Management denies a disability retirement application at the initial stage of the process.  Certainly, the denial needs to be taken seriously; the basis for the denial (which is often couched in confusing terms, based upon conflicting — almost contradictory — assertions and claims) must be identified and addressed; additional medical documentation may be needed; the proper legal authorities must be cited.

To put it bluntly:  while it is almost always a good idea to prepare, present, and file a Federal Disability Retirement application with the assistance, guidance and counsel of an attorney, it is essential that an OPM disability retirement denial be rebutted by an attorney who is familiar with the process, the laws, and the compelling arguments necessary in answering the reasons as stated in the “Discussion” section of OPM’s denial letter.

To panic is merely to waste time; to prepare is the wise course; to map out a cogent plan on how to win at the Reconsideration Stage — and, if necessary, the next stage of appeal, the Merit Systems Protection Board — is the wisest approach.  As Easter is a time of renewal, and Spring is now upon us, during the next few weeks, I will be “going back to basics” and reviewing  the process, the law, and the methodology of effectively applying to obtain Federal Disability Retirement benefits for FERS & CSRS employees.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Actions, Part I

Can adverse agency actions to terminate a Federal employee impact a potential disability retirement application?  The short answer is “yes”, but the longer answer would have to consider multiple factors:  what is the underlying basis of the adverse action?  Does a person’s medical conditions (often psychiatric, cognitive dysfunctions impacting upon less than stellar performance ratings, or perhaps impacting upon the essential elements of one’s job in other ways) explain, in whole or in part, the “adverse” nature of the action?

Also, has there been a “paper trail” established with respect to informing the Agency of medical conditions, such that it can “explain” — again, in whole or in part — the apparent basis of the adverse action?  Is the Agency open to negotiating a material change in the proposed removal — i.e., from one which is adversarial (and therefore would be appealed to the Merit Systems Protection Board) to one based upon one’s medical inability to perform the essential elements of one’s job (with a stipulation that no appeal will be filed, thereby saving the Agency’s time, resource, and personnel).

It is important to “get involved” in the process of any contemplated Agency action — early.  If the Agency puts an employee on a Performance Improvement Plan (PIP), it is time — in fact, overdue — to become active in the future plans for filing a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Disability Retirement & Postal Service Voluntary Early Retirement (VER)

For multiple reasons, early retirement — if eligible; if offered; if … — is an option which must be considered by a Federal or Postal employee.  In the coming months, Voluntary Early Retirement will be offered to Postal Employees; each year, Federal employees who become eligible for some form of early retirement must make hard financial decisions.  In light of the present state of the economy (not good), an offer of early retirement (some not so bad) may have to be considered by the Federal or Postal employee.  In each case of such an offer, the details of any such offer must be carefully reviewed and considered — especially if, concurrently, a Federal or Postal employee is considering filing for disability retirement.  A Federal or Postal employee can only collect one or the other:  you can either receive an early retirement annuity, or a disability retirement annuity, but not both.  You can, however, consider filing for early retirement (in order to continue to have some income), then file for disability retirement within one year of being separated from Federal Service. 

If you take this route of filing for early retirement, then filing for disability retirement, you must be careful.  For instance, if a lump-sum payment is part of an early retirement package, will it have to be paid back if you file for, and are approved for, disability retirement?  Further, remember that the years that you are on disability retirement counts toward your total number of years of Federal Service, when it is recalculated at age 62.  This is an important point.  The short-term benefit of retiring early may not seem like such a good idea 10 years later when inflation eats into the annuity.  A cost-benefits analysis should look to all of the factors involved:  the annuity amount and difference between disability retirement and early retirement today; the difference of the annuity when disability retirement is recalculated, and those years while on disability retirement count towards your regular retirement; and the dollar difference calculated out to the life expectancy.  These are all considerations which must be looked at carefully — not just upon one’s short-term benefit of an early retirement (which may seem great), but more than that, for the long-term security of the Federal and Postal employee.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Thoughts on Specific Disabilities

There is a view that is often proposed that, for certain medical conditions or disabilities, that a different “approach” needs to be undertaken.  Thus, by way of example, certain medical conditions such as (to name just a few, and of course, the list is by no means intended to be exhaustive) Fibromyalgia, Chronic Fatigue Syndrome (CFS), various forms of Multiple Chemical/Environmental Sensitivity cases, and even psychiatric conditions such as Bi-polar Disorder, Generalized Anxiety, etc. — are often thought to be somehow in a “different” category from (again, by way of example) more “traditional” medical conditions such as Multiple Sclerosis, Lupus, Shoulder Impingement Syndrome, Osteoarthritis, degenerative disc disease, herniated discs (cervical or lumbar), Torn ACL, Failed Back Syndrome, etc.

Thus, the question sometimes posed is:  should the former types of medical conditions somehow be treated “differently” than the latter, more traditional types of medical conditions?  My answer is, generally, “No”.

First, each individual case must be treated based upon the uniqueness of the particular case.  Second, to file a disability retirement application “differently” because you fear that OPM may not accept your particular kind of medical condition approaches the entire process in a defensive, almost defeatist manner.  Third, because Federal Disability Retirement is based upon the symptoms which are manifested, as opposed to a “category” of a medical condition, and further, how those symptoms and manifested symptomatologies impact the essential elements of one’s job, it is the emphasis upon the nexus between the symptoms and the core elements of the job which should always be emphasized, and not what your medical condition is “called” or “named” as.

Thus, as a general point of legal approach, I prepare all of my clients’ disability retirement applications in a similar vein:  that, regardless of what condition you have been diagnosed with, the symptoms exhibited and clinically identified by your treating doctor impact your ability to perform the essential elements of your job.  This is the best approach to take in all cases.

Sincerely,

Robert R. McGill, Esquire