Federal Disability Retirement: FERS & SSDI

Of course one must file for SSDI (Social Security Disability benefits) when a Federal or Postal employee under FERS (the Federal Employees Retirement Systems, as opposed to CSRS, the Civil Service Retirement System) files for Federal Disability Retirement benefits.  If approved by Social Security, there is a 100% offset of benefits in the first year, and a 60% offset of benefits every year thereafter until age 62.

The real underlying question for most people, is how aggressively one should, or one wants to, pursue Social Security benefits.  This is often determined by what one plans to do after becoming a Federal Disability Retirement annuitant.  For, if you plan to work part or full time, and think that you will be earning more than the yearly ceiling allowable under SSDI, which is around $12,000.00 per year, then it is probably not worthwhile to pursue it very aggressively.  On the other hand, if you plan on relying exclusively on your disability annuity, it is probably a good idea to pursue it with the intent of obtaining it.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Thank the Medical Professionals

If not for the doctors, disability retirement would obviously not be a possibility.  Of course, one may make the self-evident statement that being supportive of a Federal Disability Retirement application is simply part of a doctor’s job; and, to some extent, that would be true.  Doctors should indeed be willing to write up supportive medical narrative reports for their patients.

Nevertheless, it is because of the doctor, the effort expended, the willingness to testify at a Merit Systems Protection Board Hearing, that the Office of Personnel Management even listens, or reverses a prior denial, and grants a disability retirement application.  Especially when a case gets denied twice by the Office of Personnel Management, it becomes crucial to have the cooperation of the treating doctor to testify in an MSPB Hearing.

This is normally done by telephone, thereby making it a minimal imposition upon the doctor’s time.  Indeed, I often only take a total of 30 minutes of the doctor’s time, including preparation and actual testimony, for an MSPB Hearing.  But the very fact that the doctor is willing to testify — to speak to the Administrative Judge directly to give his or her medical opinion — is often enough to convince OPM to change course, and grant the disability retirement benefits.

Sincerely,

Robert R. McGill

CSRS & FERS Disability Retirement: Be Careful

As part of a Federal or Postal employee’s process of filing for Federal Disability Retirement benefits, one may have to negotiate, respond to, or fight against an unfair Agency’s attempt to remove the Federal or Postal employee — based upon factors other than what is truly the underlying basis — of his or her medical inability to perform the essential elements of the Federal job.

For whatever reason — of incompetence, of pure unkindness, of personal vendettas, etc. —  Agencies will often refuse to remove an individual for the administratively neutral reason (by “neutral”, to mean that it is not an “adverse” action) of “medical inability to perform the essential elements of the job”.  Instead, they will often revert to other reasons:  “excessive absences”, “AWOL”, “excessive LWOP”; “violation of a PIP”, and other such overtly misleading reasons.

When, the truth of the matter is/was, the Federal or Postal employee was sick, has a medical condition, and could not come to work because of medical reasons.  Be careful.  Fight the removal action.  Don’t accept the unfair basis.  File an appeal with the Merit Systems Protection Board.  Remember, a removal for medical inability to perform the essential elements of the job can help you get an approval in a disability retirement application.  Better yet, hire an attorney who will fight for you.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Denial at the First Stage

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

CSRS & FERS Disability Retirement: The Bruner Presumption – Agency Actions, Part II

One must never misunderstand the law and its application.  This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences:  the failure to secure disability retirement benefits and, therefore, the financial security for one’s future.

The “Bruner Presumption” is one such application of law which is often misunderstood.  Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong.  The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job.

With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant.  One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort.

This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force).

Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: More on the MSPB Stage

While I believe that an attorney versed in the Federal Disability Retirement process can be helpful at all stages of the process, at the Third Stage — the Merit Systems Protection Board stage — the input, assistance, and representation of an experienced attorney can be invaluable.  This is essentially the “last” stage of the three-stage process.  Of course, there are two additional stages, but both concern an appeal — in the event that the Administrative Judge rules against the disability retirement applicant at the MSPB.

During the process at the MSPB, the Appellant will have what is called a “Prehearing Conference”.  At such a conference (held over the telephone), the Judge will go over with both parties (the applicant and the OPM representative), certain basic essentials about the law, to include the standard of proof, witness list, preliminary legal matters, etc.  What is important at such a Prehearing Conference is to carefully listen to the Judge.  As each Judge is human, and thus different, it is important to listen and carefully be attentive to what the Judge is looking for.  If more medical documentation is needed, exactly what is the Judge looking for?  If there is a concern about a certain legal issue — say, the issue of accommodation — what exactly is the Judge concerned about?  By being attentive to the questions of the Judge, and fashioning the Hearing to address those concerns, the applicant greatly enhances his or her chances of winning at this crucial stage of the process.

Sincerely,

Robert R. McGill, Esquire