Federal & Postal Service Disability Retirement: Differing Legal Criteria

Similar benefits, at the State, Local, Private levels, and at the Federal level, each contain differing legal criteria for eligibility. Thus, for instance, Social Security Disability benefits require one set of standards of eligibility; private disability insurance policies require a different set of standards; and state disability benefits often differ from state to state.  This is of course true of Federal Disability Retirement benefits under FERS and CSRS — where the legal standard of eligibility is different from Social Security, Worker’s Comp, and State or private disability criteria.

Often, a question is asked whether a medical narrative report which is prepared for submission to the Office of Personnel Management can be used for submission for other “similar” benefits.  The short answer is, “It all depends”, but the long answer is that, in most cases, one must be very cautious.

When I represent a Federal or Postal employee under FERS or CSRS, one of the first steps in preparing a viable case is to request of the treating doctors a detailed medical narrative report.  One must understand that the treating doctor has, generally speaking, next to no idea as to the legal criteria that must be met under FERS or CSRS.  Furthermore, the treating doctor has no legal knowledge as to the differences between private disability insurance policies, State, Social Security, OWCP or FERS & CSRS.  It is the job of the Attorney to make sure and guide the treating doctors as to the criteria which must be met as to the particular and specialized field for which the medical narrative is being prepared.  This must be done with care, and with detailed guidance.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: An Art Form (Part I of II)

As with all effective submissions — pleadings, motions, legal memorandums and, alas, Federal Disability Retirement applications — it should never be approached in a mechanical, one-to-one ratio-like, mathematical manner.  Of course it should contain the technical terms, the medical terms, and the legal arguments.

However, disability retirement under FERS & CSRS — especially the Applicant’s Statement of disability and any legal arguments — should not be matter of matching up a one-to-one correspondence between the medical condition and the particular essential elements which it prevents or impacts.

Certainly, the effect and the conclusion should contain that conceptual correspondence; however, as all good writing contains a technical side, it is also important to weave the story of the human condition and see the writing as an “art” form.

The impact of the human story is important in convincing and persuading the OPM representative to not only understand the medical condition, but to get a sense of empathy for what the applicant is going through.  It is a delicate balance to achieve; yes, the hard legal arguments should be made in order to “force” OPM to see that, legally, they are obligated to approve a disability retirement application; at the same time, if you can touch the empathetic nature of the OPM representative, so much the better.

Sincerely,

Robert R. McGill, Esquire

 

See also: ”An Art Form (Part II)

OPM Disability Retirement: The Lawless Supervisor

Every now and then (or perhaps more often than we like to think) a Supervisor will fill out the SF 3112B (Supervisor’s Statement) with such venom and innuendo and half-truths, as to make the disability retirement applicant out to be John Gotti’s half-brother and reincarnate of the conceptual paradigm of the greatest incompetent the Federal Government has ever seen (next to the Supervisor himself, of course). Or, it will state that the applicant has been “under investigation”, or that he/she has “mislead” the Agency, or other such half-truth, unsubstantiated allegation.

The problem in addressing such a Supervisor’s Statement with the Office of Personnel Management (if, in fact, one has the opportunity to address the issue before it gets to OPM or, as is more often the case, if the disability retirement application is denied, and the Supervisor’s Statement is referenced in the initial decision of denial), is the following: If you address it too forcefully, or emphasize it, then you are in danger of focusing the “fight” on the truth or falsity of what the Supervisor has said. In other words, you have essentially allowed the Supervisor to win the fight by shifting your focus upon the venom of the Supervisor.

It is more likely the wiser course of action to grant minimal attention to the Supervisor’s Statement; give it the due response it deserves, addressing the falsity of the statement, and how it is entirely unsubstantiated; and, sometimes, express outrage that OPM would have even considered such scandalous charges when it has been unverified; then focus most of the attention upon the validity and force of the Medical Narrative Report that accompanies the disability retirement application.

For, after all, always remember that this is a “Medical Disability Retirement Application” — with the emphasis upon “medical”, and not “Supervisor”.

Sincerely,

Robert R. McGill, Esquire

Federal disability retirement: The sensitivity of each case

Every Federal and Postal employee has a unique historical background, especially with respect to his or her medical condition; how the medical condition was incurred; how the medical condition progressed, deteriorated, and degenerated one’s physical abilities, until that person came to a point where he or she could no longer perform the essential elements of one’s job. Each person has a unique story to tell, and indeed, some of the historical background is applicable.

The job of an attorney, however, is to focus the potential disability retirement applicant; extrapolate the relevant medical history; refashion the story that is being told; re-tell the story of the medical condition and the impact upon the essential elements of the person’s job — in other words, to be the voice of the disabled applicant, such that the story told is presented effectively to the Office of Personnel Management. Thus, when I am interviewing a potential client, I may sometimes seem to interject myself, or attempt to curtail the person’s narrative. It is not because I am rude or uncaring; it is because it is my job as an attorney to obtain the relevant facts and circumstances, in order to assist the individual.

Sincerely,

Robert R. McGill, Esquire