OPM Disability Retirement: Discretionary Judgments

There are many things in the long process of getting a Federal Disability Retirement application approved, which are purely “discretionary”, based upon one’s experience, sense of a case, an ear to listening to a client, and based upon a compendium of factors, facts and circumstances, to come up with the “best” decision on a particular issue.  A person who tries to go through the process alone, without the ear, mind, experience or judgment of an attorney who knows the process governing Federal Disability Retirement under FERS or CSRS, has to make such discretionary decisions without the benefit of past experiences.

Such decisions can range from small issues of:  how and when a treating doctor should be approached in the request for a medical narrative; how much guidance the doctor would need or want in preparing a medical narrative report; when and how to inform the agency of the pending decision to file for Federal Disability Retirement benefits, etc.; to the larger decisions, such as which medical conditions and reports to include in the final packet to be submitted to the Office of Personnel Management; and many other such discretionary decisions.  Yet, when grouped together, the complex interactions of the multiple “discretionary judgments” can often make or break a case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Decision (Again)

Yes, it is a difficult decision to make — to come to terms with filing for Federal Disability Retirement under FERS or CSRS.  It makes it all the more difficult when individuals wait until the last possible minute before calling up the attorney (me) to file for Federal Disability Retirement benefits.  There have been a few times in the past (very few) when I simply could not take on a case with only a week left before the Statute of Limitations runs out.  The only thing I can do at that point is to identify which forms to fill out (however imperfectly), and give the fax number and the address to Boyers, PA for the individual to file.

Remember the important point:  You can always make factual, medical and legal arguments after you have filed; you cannot make any arguments if you have failed to file on time.  Of course, it comes with the territory — as an attorney who exclusively represents Federal and Postal employees to obtain disability retirement benefits (there are many attorneys who practice Federal Disability Retirement law as one aspect of a larger practice which includes other areas of Federal Employment law), I understand how intertwining the medical condition is, with the anxiety and stress of filing for Federal Disability Retirement benefits, and how procrastination is often part and parcel of the medical condition itself.

At the same time, however, I take pride in doing a good job; I like to service my clients; I like to see the successful outcome.  As such, I am reluctant to take on cases where there is very little time to file.  I have, and will, take on cases where the Statute of Limitations is about to run out, but there must be at least some time left.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Responsibility of the Office of Personnel Management

Perhaps it is an anomaly to even speak about the issue of “the responsibility” of the Office of Personnel Management — at least, from the general consensus of experiences as told by countless individuals who have filed for disability retirement benefits from the Office of Personnel Management, especially in recent years, one might conclude that OPM is slow to respond, or often refuses to respond at all.  However, to be fair, OPM — as with all other Federal Agencies — is made up of individuals; and the “good” or “bad” of an Agency is entirely dependent upon such individuals.  Most of the disability retirement specialists at OPM are, in my opinion, of the “good” sort.  Without naming names, there are a few of the “bad” sort.  Of course, that says very little, because such a generalized statement could be true of all Federal Agencies.  Moreover, OPM is presently short-staffed, overworked, and way behind on the processing of disability retirement claims.  What used to be a 60-day wait at the initial application stage is taking 90 – 120 days; and at the Reconsideration (2nd) Stage, what used to take 90 days is now taking 120 – 150 days, in many cases.   More than the “time” it takes, however, just remember that the primary responsibility of OPM is to take a careful and serious look at your disability retirement application/packet.  Also, remember that those disability retirement packets which are streamlined, logically constructed, and coherently argued, are the ones which will likely be quickly processed.  Don’t just strap a volume of medical records onto an application and hope for approval; in this day and age, it might be a wise investment to hire an attorney to “streamline” your packet.

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

The Emergency Federal Disability Filing

On the desk of one of the Circuit Court clerks, in an adjacent county, is a sign which reads: “The fact that you waited until today does not make it into my emergency.” Those who stand in line to file an emergency pleading, either try to ignore the prominently-displayed sign, or hope that some other clerk will attend to his or her needs. Yet, we all know that there are times when, for one reason or another — the year passed so quickly; the medical reports which we expected months ago just arrived; “life happened” and the 1-year mark for filing for disability retirement is upon us — we have a couple of weeks, or perhaps a week, or perhaps only a couple of days, to file for Federal disability retirement benefits.

When such an emergency filing becomes necessary, three things must happen: First, the three essential forms must be quickly filled out (whether they are adequately and sufficiently filled out is another matter — but just remember that if you don’t at least meet the 1-year statute of limitations for filing for Federal disability retirement benefits, you are left with no argument at all; whereas, at least by filling out the forms and filing, regardless of their adequacy or completeness, you can at least argue later that it meant x or y).

Those three (3) forms are: SF 3107 Application for Immediate Retirement for FERS; SF 2801 for CSRS; Schedules A, B & C for FERS & CSRS; and SF 3112A, Applicant’s Statement of Disability for FERS & CSRS.

Second, fax the three completed forms to Boyers, PA, and Express Mail or FedEx it (and get a fax confirmation sheet); and Third, follow up with a phone call to Boyers to get the name of the person who will confirm that he/she received the fax. Every now and then, “life happens”, and emergency filings are necessary. In a perfect world, such emergencies should be unnecessary; and while the clerk in the Circuit Court in an adjacent county might look with disgust upon the lawyer or pro-se individual attempting to file an “emergency” pleading, whether it is his emergency, her emergency, or someone else’s fault, the fact still remains: It needs to be filed on time.

Sincerely,

Robert R. McGill, Esquire

OPM Disability, Human Suffering, OPM Disability…

I often refer to a favorite short story of mine, inasmuch as it serves as a paradigm for why I practice disability retirement law: the master storyteller, Anton Chekhov, wrote a brilliant short story entitled, Grief (translator’s subtitle: “To Whom Shall I Tell My Grief,”), where the cab-driver, Iona Potapov, tells the profound story of human need — of a son’s death; a tale of tragedy, and of human indifference.

And in the course of driving various strangers in his carriage/cab, where he attempts to tell his very personal story of human tragedy, in the end, he must turn to his horse, and speak the mournful song of human desire to the only one who will listen: “That’s how it is, my old horse. There’s no more Kuzma Ionitch. He has left us to live, and he went off pop. Now let’s say, you had a foal, you were that foal’s mother, and suddenly, let’s say, that foal went and left you to live after him. It would be sad, wouldn’t it?”

Each of us has a human tale to tell. The human tale in disability retirement is often one of enduring devotion to one’s life work; of a medical condition beyond one’s control; and the need to change course in one’s life.

As an OPM Disability attorney, I am very busy in my practice. The cost of success, of course, is less time — less time for family, less time for personal pursuits (my first and greatest love is and continues to be the study of Philosophy — that is what I studied in College; that is what I studied in graduate school, before heading off to law school; and I find that, each year, I have less and less time in reading the major works of philosophers — but this is often outweighed by the professional satisfaction I get in obtaining disability retirement benefits for my clients); less time for reflection. I receive many, many calls on a daily basis from clients and potential clients who need to file for disability retirement benefits.

I try and listen to each human story — but to listen to the fullness of each story would be to take away from the time needed to spend on someone else.

That is why, often, I must direct the conversation with a series of questions.  I am not a therapist or a doctor — I am an attorney. If I do not focus upon the direct and impactful issues, and help my clients focus upon the significant issues which directly touch upon Federal OPM Disability Retirement, I am not doing my job. Thus, if I am somewhat focused upon certain foundational issues when speaking to people on the telephone, it is only because I am trying to do the best for all of my clients — to direct and re-direct the issues, like a laser-beam, upon the important issues concerning Federal Disability Retirement.

In doing so, I hope I am not like the indifferent passengers who left Iona Potapov on the side of the road, to have him tell his human story to the only one left to tell: his horse.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Proper Response to the Agency

It is often difficult to inform an Agency of one’s decision to file for disability retirement. On the one hand, it is often a place where a Federal Employee has spent many years working for; with multiple years of interaction, both good and bad, it is a place which has grown to play a prominent role in the employee’s daily life, with necessary interpersonal infusions of personalities, playing such an influence as important as one’s personal family life — and, because a person may spend 8 – 10 hours a day, week after week, month after month, like life in a family, it has come to embrace a place of primary importance in one’s life.

As such, to inform such a place of one’s decision to file for disability retirement is, in effect, to inform them of one’s separation from that primary location of importance.  Such separation can be as psychologically devastating as a “divorce” which, in many respects, it is similar to.  That is often why the role of an attorney can be important.  An attorney can be a “middle-man”, an arbiter to soften the strain of such a separation from a federal employee from his or her “family”.

Remember, this is an administrative process; it need not be an adversarial process.  An attorney experienced in disability retirement law should know the process, and act to soften the separation which has been long in coming, and work to garner a sense of “teamwork” between Agency and employee, to attain as amicable a separation as possible.

Sincerely,

Robert R. McGill,Esquire

Is There Life after a Disability in the Federal Workplace?

In tough economic times, it is often difficult to find that “silver lining”. This is even truer for my clients who obtain disability retirement benefits from the Federal Government, as well as those contemplating it. For, ultimately, I always find (without exception) that Federal and Postal Workers who are contemplating filing for disability retirement don’t want to be in the position he/she finds him/herself in.

They have been loyal and hard working Federal employees.  They have shown such loyalty through years and years of committed service.  But, for whatever reasons, and for whatever circumstances and situations, a sudden medical condition, or a degenerative medical condition, has brought that loyal employee to a point where he or she is no longer a “good fit” for a particular kind of job.

Such an employee can often be placed on a PIP (“Performance Improvement Plan”), or be given a Letter of Warning, or be placed on Leave Restrictions, or be told that no more light duties are available — all indicators that the Federal Agency or the particular Post Office is no longer willing to engage in “bilateral loyalty” — in other words, your 20 years of Federal Service will be rewarded with a boot out the door.

But such Federal and Postal employees must always have a positive attitude:  disability retirement benefits are there for you when they are normally unavailable in the private sector; while it pays a flat amount which one may not be able to necessarily live on, it is nevertheless a “base annuity” that can be depended upon.  And, further, a recent New York Times article concerning the state of the present economy pointed out what I have noted in the past:  Private Companies are hiring more and more older workers who have their own health insurance benefits, and who can work part-time without benefits.

That accurately describes the disability retirement annuitant, who is able to make up to 80% of what his/her former position pays now, on top of the disability retirement annuity, and retain life & health insurance benefits.  Always look for the silver lining.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Which Disabilities To List

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

FERS & CSRS disability retirement: When & how to act

When people call me to ask if they need legal representation in filing for disability retirement benefits under FERS or CSRS, I try and provide as “objective” an opinion on the matter as possible. I represent hundreds of people in filing for, and obtaining, disability retirement benefits; it is my specialty, and it is how I make a living. At the same time, however, I believe that I can be completely honest in providing guidance as to whether an individual should obtain legal representation, or needs to obtain representation.

For instance, for individuals who have already sent in their disability retirement packets to OPM (via the Agency for those still on the rolls; directly to Boyers, PA for those who have been separated from service for 31 days or more), I normally advise the applicant to wait — wait until a decision has been rendered, and hopefully the individual will not have to expend the funds for attorneys fees, and an approval will be in the mail. On the other hand, every now and then, an applicant who is waiting for a decision from the Office of Personnel Management, will describe the content and substantive materials comprising the disability retirement packet, and certain statements — during a telephone consultation with me — concerning what is stated in the applicant’s Statement of Disability, will give rise to concern, and in those instances, it may be wise to either withdraw the application, or immediately take steps to supplement the disability retirement packet.

Each FERS or CSRS disability retirement packet is unique, because each individual & individual’s medical condition is unique. That’s what makes the practice of law in the field of representing Federal and Postal disability retirement applicants so interesting, and so professionally satisfying.

Sincerely,

Robert R. McGill, Esquire