CSRS & FERS Disability: Perennial Issues

Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms.  The one which needs to be addressed, again, is the “1-year” issue:  there are actually two (2) questions which keep resurrecting themselves: A.  Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year. 

As to the former:  The statute of limitations begins to toll when a person has been officially separated from Federal Service.  This means that the Agency must take you off of the Federal rolls.  If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun.  On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated.  At that point, you have one (1) year to file your Federal Disability Retirement application. 

As to the latter (Issue “B” herein):  In most cases, it is a prospective issue.  It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year.  In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty.  Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway.  In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Specific Denial II

It is important to always “define”, “corner”, and “circumscribe” any denial from the Office of Personnel Management.  If you do not, then what happens at the next level is that it becomes a “de novo” process.  Now, one might argue that all disability retirement appeals to the Merit Systems Protection Board are de novo, anyway.  That is true enough — meaning, that all of the evidence is looked at “anew” and without prejudice from any previous finding by the Office of Personnel Management. 

Yet, there is the “legal” definition of de novo, and the practical effect of de novo; often, the Administrative Judge at the MSPB will, at a PreHearing Conference, turn to OPM and say, Listen, OPM, it seems that the only reason why it was initially denied was because of X, Y & Z; the applicant certainly answered X & Y in his/her reconsideration answer; is the only thing you are looking for is Z?  What this does is to narrow the issue.  Often, to save time, face, aggravation and other things, OPM will concede the narrowing of such issues, and this is true if you respond to their administrative queries by defining what they are asking for, then providing it to them, then showing how it has been provided to them, so that they are “cornered”.  Thereafter, if it gets denied and it needs to go to the MSPB, the Hearing can then proceed with a narrower, streamlined and limited number of issues to prove.  Again, the reason why it is important to define what it is that OPM is asking for, is not only for the “present” case, but in preparation for the potential “future” case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Psychology of the Process

There is, of course, the “psychology” of the process of filing for disability retirement benefits.  The term itself (psychology, psychological) is all too often misused.  All that is meant in this context is that, at each stage of the process (the initial application stage; the Second, Reconsideration Stage; the Third, Merit Systems Protection Board Stage; the fourth & fifth stages of an appeal, either for a Petition for Full Review or an appeal to the Federal Circuit, or sequentially), the applicant should have a general idea of the level of people the Applicant is dealing with.

Thus, for example, at the initial stage of the process, one should not expect the OPM Representative to be fully conversant in the law; whereas, if the case gets to the Merit Systems Protection Board Stage, the OPM representative is fairly well-versed in multiple aspects of the laws governing disability retirement.  Additionally, the level of medical knowledge varies from one OPM representative to the next.

This is not to say that each stage of the process requires a greater level of intellectual input or information; nor does it mean that each stage should be “tailored” based upon the expected level of competence.  Rather, an awareness of what to expect, how to respond, and what level of intellectual responsiveness are all necessary ingredients in preparing and filing a successful disability retirement application. In short, it is important to know the “psychology” of it all.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Complexity of the Simple

Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers.  Indeed, “the law” is often made more complex by lawyers.  However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity.  That is why law itself is complex.  Don’t let the complex confluse you.

As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: When to Get an Attorney

As I explain to all potential clients, whether an individual should attempt to obtain Federal disability retirement benefits with or without an attorney, is an individual and personal decision, based upon a number of factors.

I place everyone on a spectrum:  on the far left side of the spectrum is a Letter Carrier who becomes paralyzed.  That person does not need me as an attorney. He/she needs to gather the medical records, fill out the forms, and submit the application.  On the far right side of the spectrum is a Supervisor who goes out on “stress leave”.  That person should almost definitely hire an attorney, because disability retirement based upon the medical condition of stress alone, is difficult to obtain. Most Federal and Postal employees fall somewhere in-between those two extremes.  Further, and obviously, I believe that I am of assistance to my clients, and (hopefully), based upon the years of feedback I have received, my clients firmly believe that my legal methodology and approach were instrumental in obtaining disability retirement benefits for them.

Two further things to consider:  First, I rarely accept cases where an individual has filed the application, gotten it rejected, filed for reconsideration, gotten it rejected, and then went to the Merit Systems Protection Board where the Judge upheld OPM’s decision to deny the application:  when an individual has gone through all three Stages, and asks me to file a Petition for Review, I will normally not take on such a case.  I will, of course, consider being hired to re-file the case (assuming that the person has not been separated from service for over a year); but I cannot take on a case for a Petition for Review and further appeal when I have not been the one instrumental throughout the first three stages of the process.  Second, many individuals come to me with barely 30 days left to file.  I take on such “emergency cases” on a case-by-case basis, depending upon my time-allowance, my schedule, etc.

The Lesson:  Each individual must make the decision as to whether or not to hire an attorney, which attorney to hire, when to hire.  From my perspective:  Federal Disability Retirement is, when all is said and done, a process to secure the financial future and stability of one’s life.  As such, hire an attorney who specializes in Federal and Postal disability retirement, and hire one early on in the process.

Sincerely,

Robert R. McGill, Esquire

Remember the Details in Your FERS Disability Retirement Application

At each state of attempting to get a Federal disability retirement application approved, it is important to “remember the details”.  For example, at the Merit Systems Protection Board level, in conducting a Hearing, remember that if the best medical evidence/testimony you are able to provide is through a health professional other than an “M.D.” (e.g., a Therapist, a Nurse Practitioner, a Chiropractor, etc.), always point out the unique credentials of the provider, to include whether in the particular state in which he/she practices, if greater latitude and responsibilities are given to the practitioner.

Thus, it may be that in one state a Nurse Practitioner can exam, diagnose, and prescribe a medication regimen without the direct oversight of a medical doctor, whereas in other states such latitude may not be allowed. This should be pointed out to the Judge, to emphasize greater credibility of the testimony of the practitioner.

Further, remember that in Vanieken-Ryals v. OPM (U.S. Court of Appeals for the Federal Circuit, November, 2007), the Court therein reiterated that the medical documentation/evidence required must come from a ‘licensed physician or other appropriate practitioner’, and so long as that medical practitioner utilizes “established diagnostic criteria” and that which is “consistent with generally accepted professional standards”, the testimony cannot be undermined.

Use the strengths of the case you have, and emphasize the little details that matter.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Supervisors & Their Responsibility

Agency Supervisors possess powers which can be easily misused.  As such, the Supervisor who must fill out a Supervisor’s Statement — Standard Form 3112B — for the disability retirement applicant, must do so with care, integrity, and a sense of reasoned perspective and fairness.  “But I’m only telling the truth of what I believe,” is often the justification of a Supervisor who deliberately inserts damaging, self-serving and derogatory remarks on the Supervisor’s Statement. But such “truth” goes beyond the proper role of a Supervisor.

Indeed, it is often helpful to discuss the content of intended remarks and statements with the Federal or Postal employee first. Such consultation provides a true and balanced opportunity — a field of fairness and a reasoned perspective — to ensure that a Supervisor is indeed being fair, balanced, and neutral, and not allowing for any personal “feelings” of acrimony or animosity to dilute and pollute a fair appraisal of an employee’s performance, conduct, and impact upon the Agency’s purpose, mission, and goals intended and accomplished.

For, ultimately, a Supervisor’s Statement is not about what a Supervisor’s “belief” is; it is not about whether the Supervisor likes or dislikes a Federal or Postal employee; rather, it is supposed to be a balanced, objective perspective delineating the impact of a Federal or Postal employee’s performance or conduct, relative to his or her medical condition and the ability of that employee to perform the essential elements of a job.

Sincerely,

Robert R. McGill, Esquire