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

OPM Disability Retirement: The “No Other Choice” Case

Then, of course, there are cases where an individual has “no other choice” than to file for disability retirement. Sometimes, it is a chance that is taken — the chance of paying an attorney. Yes, adverse removal actions can impact one’s chances of obtaining disability retirement benefits. A case study: A recent client was removed from a Federal Agency for criminal conduct (obviously, no names will be used, and the facts will be somewhat altered to protect the client’s confidentiality of information). The individual was nowhere near retirement age; but suffice it to say that he/she had been a loyal employee for 20 years. He/she had a medical condition — a psychiatric condition, which pre-dated the criminal conduct. He/she hired me to obtain disability retirement.

What choice did the person have? He/she really had “no other choice” other than to walk away with nothing, or take the chance of paying an attorney (in this case, me). I was blunt about the entire affair: Normally, I am able to get most of my clients approved at the first or second stage of the process, and I will normally ascribe a “success-rate” to a case; in this instance, the probable rate of success, in my opinion, was lower than my normal prediction. Nevertheless, he/she wanted to go forward with it. I contacted the doctors and guided them into writing a forthright medical report; today, the client is receiving his/her disability retirement annuity. Did the person “deserve it” despite the criminal conduct? Absolutely! His/her medical condition pre-dated the criminal conduct, and in fact was a major factor in the actuation of the criminal conduct itself. I am happy for the client, and from a professional standpoint, it is always satisfying to win a case where a client entrusted a case in which he/she had “no other choice” — but once the choice was made, to have made the right choice.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Time to File

A question often asked is, when is it the right time to file for Disability Retirement? Must you wait until one has been disabled for over a year? Do you have to file for Social Security first, before filing for OPM Disability Retirement? Should the Agency be notified at the beginning of the process, or some time later down the road? What is the best time to approach my doctor about getting his or her support for disability retirement? These are all “timing” questions — each important in its own right, as are all such timing questions.

Since the processing from start to finish, to obtain disability retirement benefits, may take 6 – 8, sometimes 10 months, it must be timed financially — is there enough sick leave, annual leave; should donated leave be requested? Once LWOP is taken, should one remain on LWOP throughout the entire process? As to whether one must wait for a year of being “disabled” before one can file — the answer is “no”. So long as the doctor believes that the medical disability will last for at least a year (within reasonable medical probability), one has the proper medical basis to file for disability retirement. As to filing for Social Security, the Office of Personnel Management actually only needs to see the receipt, showing that one has filed for SSD, at the time of approval of the disability retirement application. And how about notifying the Agency? This is a question which should be decided after discussion of several factors, with one’s attorney, who may provide for proper legal advice, the potential consequences of informing the Agency, etc. Ultimately, timing questions are a matter of particular importance — particular to the situation and circumstances of each individual case. With that in mind, it is often a good idea to have the counsel of an experienced attorney in the area of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Actions from Federal Government Agencies or the Postal Service

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”. Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment — with the emphasis upon the term “medical”. Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

Agencies Actions and the Federal Disability Retirement Application

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”.

Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control.  Remember that this is a medical disability retirement application — with the emphasis upon the term “medical”.

Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report.  If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement.

This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Failing to follow “Reasonable Treatment”

In fighting to prove one’s eligibility for Federal Disability Retirement benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor.

Such an argument can prove to be fatal to an applicant’s case, but it is good to know the parameters of what it means to “fail to follow” reasonable medical treatment.  For instance, non-compliance with a medication regimen can be fatal to a case.  Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment.

On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an “estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.”

These are two light-posts on the spectrum of what is deemed “reasonable treatment”.  Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor.  Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess.  What falls in-between these two extremes should always be with the guidance of “reasonableness”, in close consultation with your treating doctor.

Sincerely,

Robert R. McGill, Esquire