OPM Disability Retirement is a Medical Issue

If a Federal or Postal Employee is still on the rolls of the Agency, or if you have not been separated from service for more than 31 days, then the disability retirement application must be routed through your agency before being forwarded to the Office of Personnel Management for processing and review.

If you have been separated from Federal Service — meaning, you have actually been taken off of the rolls of your agency (this does include being on sick leave, or on annual leave, or on leave without pay) — for 31 days or more (but not for more than 1 year, in which case you have lost your right and ability to file for Federal Disability Retirement benefits, because you have allowed the 1-year statute of limitations to pass by), then you must file your case directly with the Office of Personnel Management in Boyers, PA.

Whether routed through your agency or directly to the Office of Personnel Management, remember that a Federal Disability Retirement application is ultimately a medical issue — not a supervisor’s issue, not an agency issue; it is not determined by your agency; your eligibility is not determined by your supervisor.  It is, essentially, and at its very core, an issue between you, your doctor, and your inability to perform the essential elements of your Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Merit Systems Protection Board

An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

Agency Loyalty and OPM Disability Retirement

Many people who call me and tell me their narrative about the Agency, the medical conditions, the growing inability to perform the essential elements of the job, and the resulting need to file for disability retirement, often reveal an undertone of a common element:  after so many years of loyalty, how could the Agency show such callous lack of caring?

I don’t have an answer to the question of lack of empathy on the part of an Agency; Agencies are made up of individuals; individuals show varying degrees of care, sympathy, and loyalty, but only up to a point:  if such care or empathy will somehow be perceived to harm the “mission of the Agency”, or if walking the proverbial “extra mile” for an individual who needs some temporary support is quite simply seen as “not worth the trouble,” then the individual will simply turn his or her back on the disabled individual.

When the individual turns his or her back on the employee filing for disability retirement, then the Agency turns its back on the person; for, again, Agencies are made up of individuals.  But what about the loyalty that was shown by the employee for all of those prior years?  How about the years of doing overtime, of doing extra work without complaint, etc. — doesn’t that account for some bilateral, reciprocal loyalty?

Unfortunately, it does not amount to much. Loyalty in today’s society is defined as:  What have you done for me today?

For the Federal and Postal Employee who needs to file for Federal Disability Retirement benefits, expect the worst; expect that your Agency will not be supportive during the 6 – 10 month administrative filing process.  Then, if by chance, a supervisor shows some empathy and support, you will have been pleasantly surprised.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirements: The Remainder of the Year

Thanksgiving is now over. There are barely 4 weeks before Christmas. Yet, for those who are considering filing for disability retirement, time is not the issue; rather, it is whether or not a Federal employee is able to persist in continuing his or her employment before the time of recognition comes. Recognition comes, generally speaking, in three steps: A constant struggle with a medical condition, and the impediment such a medical condition creates, either in being able to come to work consistently, or in being able to perform the essential elements of the job sufficiently. Second, an awareness that weekends and evenings are no longer a time of respite or enjoyment; rather, it is a time to recuperate from the work week. And third, the psychological wall, of not wanting to acknowledge that one has a medical condition such that one can no longer perform at the level that one expects of one’s self. Remember this: disability retirement is a benefit you earned when you worked with loyalty for the many years you have. It does not mean that you cannot be productive in some other employment or capacity; and, certainly, you never want to continue to work such that, upon reaching retirement, you are so debilitated that you cannot enjoy your remaining years of retirement. The year is coming to a close. One’s lifetime of accomplishments, however, extends far beyond the end of a fiscal year.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: Beyond the MSPB

Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement: When it gets to the Merit Systems Protection Board

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Reconsideration Stage

Alas, a batch of decisions has obviously been sent out to many disability retirement applicants in the last couple of weeks, because I have gotten many calls from those who attempted to try and obtain disability retirement benefits without legal representation.  In reviewing the denial decision from the Office of Personnel Management, many who have called have observed some rather amusing things, such as:  “It seems like most of the decision is just boilerplate language”; “There were so many typos and grammatical errors in the decision”; “The OPM specialist referred to a doctor whom I never treated with”; “The decision said that I suffered from medical condition X, which I never claimed!”   “To err is human…” is a true enough adage; but to point out the mistakes of an OPM decision for the sake of pointing out the mistakes, is a pointless exercise.

Do not fret; yes, much of the language of a decision is indeed boilerplate; OPM representatives are human, and do indeed make mistakes, and insert names of doctors and medical conditions which are not part of an applicant’s narrative; and other mistakes as well.  But don’t overlook the obvious by fuming about such mistakes:  if your disability application was denied, you need to take the decision seriously, identify the substantive issues which were the primary basis for the denial; ignore the tangential errors made; then proceed to address the concerns brought to light by the Office of Personnel Management.  Time is of the essence, and those 30 days to file for reconsideration, and the additional 30 days given to obtain further medical documentation, come and go quickly.  Don’t fume about irrelevant details; focus upon strategizing a substantive approach to getting your disability retirement application reconsidered, and approved.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

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