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

Federal & Postal Service Disability Retirement: How Many Should Be Listed (Part 2)?

The listing of the medical conditions in a Federal Disability Retirement application, as it is descriptively written on the Applicant’s Statement of Disability (SF 3112A) for FERS & CSRS disability retirement, to be submitted to the Office of Personnel Management, is a separate issue from the creative description of the symptoms which the applicant experiences as a result of the identified listing of the medical conditions.  Thus, a distinction should be made between the “official” diagnosed medical conditions (which should be limited in number, for reasons previously delineated) and the multiple and varied “symptoms” which result from the listed medical conditions.  Thus, while one may suffer from the medical condition termed as “Fibromyalgia”, the symptoms can be multiple:  chronic and diffuse pain; impact upon cognitive abilities, inability to focus and concentrate, symptoms which are often termed as “fibro-fog”, etc. 

When the Office of Personnel Management approves a Federal Disability Retirement application under FERS & CSRS and identifies the specific medical condition by which it is approved, it will identify the medical condition, and not the symptoms.  This distinction is important because, when an applicant prepares the narrative to show the Office of Personnel Management what he or she suffers from, the differentiation between conditions and symptoms is important to recognize when creatively and descriptively writing the narrative of one’s medical conditions.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretion in a Response (Part 1)

When a Federal Disability Retirement applicant under FERS or CSRS receives an unfavorable response from the Office of Personnel Management (translated:  an initial Denial), you have the right (which must be asserted in order to move forward in the future, i.e., to the MSPB and beyond) to file a Request for Reconsideration.  If you receive a second denial, then the only response required (and which should and must be asserted) is an appeal to the Merit Systems Protection Board.  A response to the initial denial, however, should include a reply to the (often) detailed “discussion” section of the denial letter.

Normally, when I file a response (in addition to obtaining additional medical documentation from the doctors, and any other substantiating documentation which may be relevant), I normally write up a 5 – 7 page responsive legal memorandum rebutting the denial letter.  Now, this is where “discretion” is necessary.  Upon an initial reading of a denial letter, one’s first response is normally not that which one should act upon, because it is often a reaction of, “What???”   Discretion is a virtue to follow; there must be a proper balance between responding to every single criticism from OPM (not a good idea), to ignoring everything in the denial letter (also not a good idea), to choosing two or three of the more substantive issues brought up and addressing those issues.  How to address them, with what tone, what manner & style, etc., is what an attorney is for.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Viewing the Office of Personnel Management

Agencies are “like” people; they are “organic” organizations (a redundancy?), and as a corporate-like entity, they respond and react as people do:  cerebrally, emotionally, reactively, angrily, etc.  If one views an agency in this way — treating the entity as one would a person — then you will often get the same or similar results as when dealing with your brother, a spouse, or a neighbor.  And, indeed, as a logical approach, this only makes sense, because agencies and organizations are made up of people.

Thus, when filing an application for Federal Disability Retirement benefits, it is often important to think of “incentives” in approaching the Office of Personnel Management, to make every effort to have a carrot/stick approach in filing a disability retirement application.  The “stick” part of it, of course, is the law — the threat of making sure that OPM knows that you will be willing to go the full course — to the Merit Systems Protection Board, to the Full Board Appeal, to the Federal Circuit Court of Appeals.  If OPM denies your case and they get it reversed at the appellate level, it makes them “look bad”.

That is the stick to hold over them — the force of the law.  The carrot part of it is to streamline it and make it as easy as possible by obtaining a clear and concise medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law.

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire