Part of celebrating Labor Day Weekend for Federal and Postal Employees under FERS should be to reflect upon, and be proud of, the tremendous years of loyalty and commitment which the Federal and Postal employee has given to the Federal Service. Take the long weekend off.
You deserve it. Federal Disability Retirement benefits will be there when and if you need it. It is a long process.
Sincerely,
Robert R. McGill, Esquire
Many individuals who have tried to file for Federal Disability Retirement benefits under CSRS or FERS get the disability retirement application denied at the Initial Stage of the process. Would I rather have had that person come to me at the First Stage and have me prepare & file it? Yes. Are the mistakes made by the unrepresented Federal or Postal Worker irreversible? No. Would the disability retirement application been approved at the First Stage had it been prepared and filed by me? Probably. This is not to say, however, that all of my cases get passed through at the First Stage. However, many of the mistakes which I see over and over, made by unrepresented individuals, could — and should — have been avoided.
Further, many people who call me after getting the initial denial are surprised to hear me tell them that I don’t care what the OPM denial letter states. While making for interesting bedside reading, the fact of the matter is that once you have read one such denial letter, you’ve essentially “read them all”. Rarely is there anything new in an OPM denial letter. OPM representatives use a template, and fill in dates and references to various medical reports and doctor’s records; but the conclusion of the denial letters are fairly identical: the medical evidence is considered “insufficient” to meet the legal criteria to be eligible for disability retirement benefits. It is the job of the attorney to go back to the doctors, get the proper medical documentation, then argue the law to the Office of Personnel Management. The Second (Reconsideration) Stage of the process is a critical stage — for, if it is denied at this level, the next level takes it a “notch” higher — before an Administrative Judge at the Merit Systems Protection Board.
Sincerely,
Robert R. McGill, Esquire
High pressure sales always need to be met with a pause, a breath, and a moment of reflection. This is not to attempt to splash any cold water upon the impending Voluntary Early Retirement packets which will be “in the mail” shortly (April 6 – 10, 2009 is the projected date of mailing out VER offer packets to all VER eligible employees). For some employees, this may be the best and most rewarding route. My concern is a simple one, with a long history of truth from the great source of all truths: “If it is too good to be true, then…” The short window of opportunity within which a decision must be made (all VER eligible employees must decide whether to apply for retirement during the period of April 10 -May 15, 2009; the actual required documents to apply for the VER must be postmarked by May 15, 2009) is short; this is a serious decision, and must be considered carefully. Some people will decide that the comparison to disability retirement benefits is great enough to consider filing for VER first, obtaining it, then filing for disability retirement benefits within 1 year therafter. That would be fine, but there are certain steps (creating a “paper trail”) which should be taken if this 1 – 2 – Step is going to be considered. In any event, the bottom-line consideration must always be: Is it in the best interest of my future? Is it the most I can get? Is it comparable to disability retirement benefits? Will I think it was the best decision to make 10, 15, 20 years from now (for example, remember that the years in which a person is on disability retirement counts as years in service for recalculation purposes at age 62). All in all, any decision that has such a small window of consideration must be scrutinized carefully.
Sincerely,
Robert R. McGill, Esquire
Often, aside from having submitted insufficient medical documentation to support a Federal Disability retirement application, the Office of Personnel Management will deny a case based upon a statement submitted by the Supervisor, normally on SF 3112B (aptly entitled, “Supervisor’s Statement”).
Now, in preparing a Federal Disability Retirement application, I rarely worry about what will be on a Supervisor’s Statement, primarily because the applicant rarely has any control over the contents of the statement, anyway, and therefore to focus upon that which one has little or no control over, is simply a waste of time. Instead, I focus upon obtaining an overwhelmingly convincing medical narrative report from the doctor, which then essentially makes the Supervisor’s Statement — if it is viewed somewhat as “negative evidence” by the Office of Personnel Management — a moot and irrelevant point of contention.
More often than not, when the Office of Personnel Management refers to the Supervisor’s Statement as revealing some basis for denying a disability retirement application, I find that OPM has either mis-read the import of the statement, or has selectively misquoted from the Supervisor’s Statement.
Remember that the law requires that the Agency provide a “reasonable accommodation”; more often than not, what the Supervisor or the Agency has provided, is neither “reasonable”, nor an “accommodation” under the law.
In any event, whether by misquote, unfair and selective reasoning, misreading, “unreasonable”, or not an “accommodation” at all, I rarely find that the Supervisor’s Statement is helpful or unhelpful; and, certainly, I have never found that a Supervisor’s Statement contains any substance which would or should be the basis of a denial from the Office of Personnel Management.
Sincerely,
Robert R. McGill, Esquire
Whether you work for the U.S. Postal Service, the FAA, the Secret Service, OSHA, FDIC, or one of the other countless governmental agencies, don’t ever think that filing for FERS Disability Retirement is an “act of surrender” or one which is somehow “taking advantage of the system”.
In the private sector, it is the salary-compensation that is emphasized. In the Federal sector, it is the “total package” of benefits: less salary-based emphasis, more on other benefits, such as health insurance, life insurance, set number of days for annual leave and sick leave — and OPM Disability Retirement benefits.
Thus, filing for Federal Disability Retirement is not a “welfare” move — rather, it is an acknowledgment that you can no longer perform one or more of the essential elements of your job, and you are no longer a “good fit” for that particular job. Remember that, when filing for Federal Disability Retirement, the Agency itself must attempt to see whether it can (A) reassign you to another job at the same pay or grade (which is almost never) or (B) legally accommodate you (which, also, is almost never).
Further, FERS Disability Retirement is not a benefit which pays you such that you can “live high on the hog”; rather, it is a base annuity, with the understanding that you can go out and get another job making up to 80% of what your former position currently pays. In other words, in most cases, you are expected to go out and be productive in other ways.
Far from being a “welfare benefit” — it is part of the total compensation package you signed onto, and to which the Federal government agreed to.
Sincerely, Robert R. McGill, Esquire
When I look at a potential disability retirement case, I find it helpful to look at the case not only prospectively, but retrospectively. While not a “rule” cast in stone, when the Office of Personnel Management approves a disability retirement case, it will normally attach a page which identifies which disability — normally one, often two, sometimes three — was/were the basis for the approval. Thus, it is important when preparing a disability retirement packet and application, to identify which medical disabilities will be listed and depended upon; and further, once is it approved, it is helpful to look to the future, for there is a random chance that every 2 years or so, you will be selected to answer a Medical Questionnaire to determine if you are still disabled.
Thus, if you list a minor medical condition, and you get approved for that minor medical condition, if you recover from that condition, you can potentially lose your disability retirement benefits in the future. (Note: for those of you who are my clients, please do not worry; no client of mine who has received a Medical Questionnaire has ever lost his/her disability annuity). Thus, it is important to identify those medical conditions which are the “most serious”, and base your medical disability retirement packet upon the most serious, long-term disability first –before listing secondary or additional medical disabilities. This is not to say that you should not list more than one medical disability; indeed, in preparing my packets for my clients, I will often list more than one, but I do it in sequential fashion, and when I put together my legal memorandum in arguing my case on behalf of my client, I constantly refer back to the central medical disability.
Sincerely,
Robert R. McGill, Esquire
It is now post-Labor Day Weekend. Summer is essentially over. The Office of Personnel Management will be back in “full force”. The inclination will be to call up OPM and impatiently — imprudently — demand that one’s disability retirement application be reviewed, because it has been sitting on Mr or Ms. X’s desk for the last 90 days. Be cautious of what you request, or demand — because you may get your wish, but with an outcome you do not desire — a denial. I often remark to my clients that if patience is a virtue, then Federal and Postal Workers must be the most virtuous people in the world, because you are the ones who must be most patient — during the years of service you have given, during the process of dealing with a demanding public, and finally, during the process when you need the Federal Government to act quickly — the disability retirement process. Be patient; thereby, be virtuous. Unfortunately, OPM does not have a statutory mandate during the administrative process. If you must call OPM, be courteous in your inquiry, and inquire only if necessary.
Sincerely,
Robert R. McGill, Esquire
Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable. Think about it this way: yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.
Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.
This latter criteria is actually for the benefit of the applicant, when you stop and think about it. For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.
Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be. For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws: the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from. All in all, the disability retirement laws are governed by a criteria of reasonableness.
Sincerely,
Robert R. McGill, Esquire
There is a cyclical pattern which can be identified with the passing of time, and the Office of Personnel Management is no different from other Federal Agencies, departments, or personnel “make-up”. Summer is here; with the season of vacations and time with families, combined with an already back-logged line of cases and overworked, understaffed personnel, expect delays in receiving a decision on a disability retirement application. Patience is the key, and Federal and Postal workers have learned by the very nature of working for the Federal Service, how to be patient.
At the same time, being dependent upon an approval of a disability retirement application is worrisome, especially where finances are tight, and the future is uncertain. Pestering an OPM representative rarely helps to move a case along, and indeed, may even bring about a negative result. Remember that OPM representatives are simply doing their jobs; do not unnecessarily take up their time by calling them about the status of your particular case. It has been said that patience is a virtue; by that account, Federal and Postal workers who have filed for disability retirement must be the most virtuous of human beings, for they have endured not only the years of loyal work to the Federal Service, but beyond, while waiting for a decision from the Office of Personnel Management.
Sincerely,
Robert R. McGill, Esquire
It is often a good idea to understand the process of Federal Disability Retirement, in order to effectuate the best approach in winning a case. Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the “irritant” factor, which may — thinking in purely pragmatic terms — result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon.
Thus, the key is to prepare your packet well — to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is “serious”; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that “other one” that is a headache and will consume your entire day, which one entices you?
Sincerely,
Robert R. McGill, Esquire