CSRS & FERS Disability Retirement: Standard Forms Do Not Mean “Standard Responses”

The problem with “Standard Forms” is that they often appear to solicit “standard responses”, and in a Federal Disability Retirement case under the Federal Employees Retirement Systems (FERS) or the Civil Service Retirement System (CSRS), nothing could be further from the truth.  Indeed, it is often because a Federal or Postal employee/applicant who confronts and begins to fill out SF 3112A, Applicant’s Statement of Disability, the very “blocked” appearance of the form, and the constricting questions themselves, makes it appear as if a “standard response” is required.  Don’t be fooled.

By way of example, take a “special animal” — that of a Federal Aviation Administration Air Traffic Controller who must take a disqualifying medication, loses his or her medical certification from the Flight Surgeon, and thinks that filing for Federal Disability Retirement benefits is a “slam dunk”.  Nothing could be further from the truth.  Or, a Customs & Border Patrol Agent who goes out on stress leave, or suffers from chronic back pain.  Are there “standard responses” in filling out an Applicant’s Statement of Disability?  There are certain standard “elements” which should be considered in responding to the questions, but don’t be constricted by an appearance of “standard responses” to a “standard form”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: Interaction with VER, A Continuing Dialogue

I sincerely hope that the proposed VERs which will be issued in the next couple of weeks will be economically viable and rewarding for those who qualify.  I say this because the primary criteria proposed for qualification involves those who are at least 50 years of age with at least 20 years of service, or any age with at least 25 years of service.  Anyone who has dedicated his or her life for a minimum of 20 years deserves something comparable to “full retirement” benefits.  My suspicions are raised, however, only because the motivating factor behind the offer is to target employees in specific locations where reductions in force or restructuring will be taking place — i.e., from the Post Office’s perspective, those places where greater “efficiency” can be obtained, at the cost of a person’s lifetime dedication and service to the Federal Government.  I realize that Adam Smith’s economic truth will always be at play — that self-interest leads to unintended consequences which, in a capitalist system, results in collateral benefits of employment, wide economic impact, etc.  But just make sure that, just as the Post Office is looking after its own interest first, that each Postal employee looks after his or her own interest, similarly — first.  Look at the VER carefully.  Compare it to disability retirement benefits carefully — not only in terms of “today’s” dollar value, but also into the future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OWCP, Light Duty & Federal Disability Retirement

As I stated in my previous blog, OWCP is not a retirement system. Instead, it is meant to return an injured worker back to productivity with his or her agency. This is done through means of providing for medical treatments; paying the Federal employee temporary total disability benefits during the time of treatment and recuperation; then, if the Federal or Postal employee is unable to return to the former position in full capacity, to offer a “modified position” to the employee.  At each step in the process of OWCP/DOL, the onerous and burdensome hand of the process becomes clear — for, if at any time, the employee refuses to follow the mandates given by OWCP, the real threat of having one’s temporary compensation suddenly terminated is always a possibility. 

Thus, in accepting OWCP benefits, there is a clear trade-off:  tax free compensation for the price of being completely governed by OWCP.  Then, when the modified job offer is given, you have no choice but to accept it, in whatever form, and must be accepted “as is” — otherwise, your temporary total disability payments will be terminated.  Remember, however, that accepting such a position does NOT preclude you from filing for disability retirement benefits, because the case-law governing Federal Disability Retirement has a “safety” feature:  in order to be considered a legally viable “accommodation” under the law, the modified job that is offered and accepted must have been one which was previously in existence, and vacant.  It cannot be your old job slot, modified by a piece of paper prepared by your agency and the Department of Labor.  It must be a true job.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP & Federal Disability Retirement

I often tell my clients that OWCP/DOL is not a retirement system. It is a system which was meant to address the medical injury resulting from a work-place accident or occupational hazard resulting in a medical issue arising, such that compensation is allowed for a period of time during a process of recuperation.

As unfortunate as it is, Worker’s Comp has become synonymous with “harassment” and “difficult”, where approval for wage compensation, for medical treatment (including necessary surgery) has meant months and months — and often years — of wrangling and fighting; of having an OWCP case manager or adjuster being rude, failing to respond, failing to return telephone calls, and just when it seems as if something may be done, the OWCP caseworker is switched to someone else who is equally unresponsive.

Then of course there is the intrusiveness — of the OWCP nurse who sits in with you and your doctor, in a context where it is as if the “enemy” is watching that relationship which is supposed to be sacred and private:  a conversation between a doctor and the patient.  It is, as I have often told clients, “a hard road to travel.”

Yet, where the medical condition, injury or disability arises as a result of a work-place accident, obviously it is financially beneficial because it pays more.  That is the bottom line.  Further, it is tax-free.  But it is not a retirement system.

Disability retirement pays less; it matters not whether the injury or medical condition occurred “on the job”; you are not required to be examined by a “second opinion doctor”; you do not have to obtain prior approval from a case manager to go and seek medical treatment.  But the benefits are much lower; it is taxable.  However, is it disability retirement.

In such a retirement, you are meant to go out and to do other things in life, including other work.

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

CSRS & FERS Disability Retirement: Confusion About the 1-Year Rule

I am receiving too many questions about certain issues, which leads me to believe that a clarification is again in order.

First, concerning the Statute of Limitations on filing for Federal disability retirement benefits.  A Federal or Postal Employee must file for federal disability retirement benefits within one (1) year of being separated from Federal Service.  Thus, if you have been on LWOP, or on OWCP, or on sick leave, but you are still receiving “zero-balance” paychecks which show that you have NOT been separated from service yet, then your 1-year statute of limitations has not yet even begun.  The 1-year Statute of Limitations begins from the effective date of your separation from Federal Service. Your SF 50 (or, for Postal employees, PS Form 50) would reflect that date of separation.

Second, some of the questions which have been posed to me suggest that there is a misunderstanding as to the substantive requirements of the law, as well.  A Federal or Postal worker does NOT have to have been medically unable to perform one’s job for a full year before filing for disability retirement.  Rather, the requirement is prospective — that your medical condition must last for at least 1 year.  Thus, normally after a few months of treating with your doctor, your doctor should be able to make a reasonable medical determination that your medical condition is going to last for at least a year, and more often than not, for much longer.

The distinction which I am attempting to clarify can make a tremendous difference: Federal and Postal workers filing for federal disability retirement do not have to wait a year after learning of his or her medical condition — that would be foolish, especially because the process of obtaining disability retirement can itself often take 6 – 8, sometimes 10 – 12 months.  Rather, a Federal or Postal worker can file soon after learning about a medical condition, so long as the treating doctor can provide a reasonable medical opinion that the condition will last for a minimum of 1 year.

I hope that this will help clarify any confusion people may have about the “1-year” rule — both as it applies to the ability to file for federal disability retirement benefits, as well as to the issue of how long the medical condition must last.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: This Economy & Opportunities

I have written and emphasized this issue before, but it is an issue which must be reiterated, re-emphasized, and re-stated: those who file for and obtain disability retirement do not need to feel like their lives are being retired. This is not an admission or an acknowledgment of an end; rather, it is an opportunity for a beginning.

Federal Disability Retirement is merely a time when one sector of one’s life is about to move on into a different sector and phase of one’s life.  It is merely a concession that the long and productive career which one has enjoyed, is simply no longer the “best fit”, and it is time to go on and move on into another sector of life.

Thus, a disability retirement annuitant has the opportunity, even in this tough economy, to look into multiple other and future opportunities. A disability annuitant has multiple advantages in this economy: excellent health insurance that is carried; an annuity which allows for him/her to work part or full time; the ability to pick and choose the opportunities; and a professional background and resume of a long and excellent career in the Federal sector.

OPM Disability Retirement is an option and an opportunity; it is not the “end” of a career; rather, it is the beginning of a future opportunity.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: When the Office of Personnel Management Fails to Apply the Law

Federal disability retirement law is often a frustrating process. On the one hand, for an attorney, it can be a professionally satisfying area of law to practice because the end result — obtaining a benefit for an individual who has shown long years of loyal service to working for the Federal Government; providing a source of income for a person who has been impacted by a medical condition; reaching a successful conclusion to a process: these factors are always satisfying for a practicing attorney. On the other hand — this is an administrative process; it is an area called, “Administrative Law”, and at least at the initial stages of the process, the Attorney handling such a case is dealing with non-attorneys at the Office of Personnel Management.

In other areas of practice, there is often an “equality of competence” (presumably), where attorneys compete or engage in adversarial battle with other attorneys. With Disability Retirement Law, however, the “Disability Specialist” at the Office of Personnel Management often has absolutely no clue as to the current laws governing disability retirement. They simply apply a template and, if a specific case goes outside of that preconceived “template”, then the OPM Representative will often deny the case. Now, in all fairness, most of the people at OPM have a fair idea of the current law, and more importantly, are open to being informed, educated and persuaded by an attorney that a particular case, with its various wrinkles (and all cases have their unique wrinkles), should be approved because of compliance with a particular statute, a relevant case-law, or a particular regulatory statement. In some particular cases, however, when an OPM representative makes a decision based upon complete ignorance of the prevailing disability retirement laws, one can only throw up one’s hands, and hope that the Reconsideration Specialist will have greater knowledge — or, at the very least, is open to being educated on the proper application of the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: Psychiatric Disabilities

I am often asked, on an initial interview/consultation of a potential client, whether or not psychiatric medical disabilities (Major Depression, Generalized Anxiety Disorder, PTSD, panic attacks, Bi-polar disorder, etc.) are “more difficult” to prove than physical disabilities. This question is similar, of course, to the question often asked of certain other kinds of disabilities, like Fibromyalgia, chronic fatigue syndrome, Irritable Bowel Syndrome, and other similar (often designated as “auto-immune” disabilities) medical conditions.

In my experience, there is no single generic answer to the question of whether or not a particular medical disability is “more difficult” to prove than another. In my experience, I have gotten approved an application for Major Depression based upon a single-page note from a Psychiatrist; on the converse/inverse experience, I have had cases rejected at the First Stage of the process (but, fortunately, had the same cases approved at the Second, Reconsideration Stage) showing chronic, failed-back syndrome cases where prior surgical discectomies, multiple diagnostic MRIs showing incontrovertible basis for severe and radiating pain, and multiple specialists verifying the client’s clear and irrefutable inability to perform the essential elements of his/her job. In preparing a Federal disability retirement retirement application, my many years of experience has taught me a number of elementary & foundational lessons: First, a clear and concise presentation of providing a direct nexus between the particular medical condition and the type of job that the Federal/Postal employeee performs, is very important; Second, it is very rarely the volume of records which is convincing; rather, it is the quality of the medical report which is paramount; and Third, it often depends upon which OPM Disability Specialist it is assigned to, which sometimes “makes the difference” between approval and denial.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Federal Worker

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 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 disability retirement benefits.

Thus, filing for 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 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, 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