OPM Disability Retirement: The Process at the MSPB

When a FERS or CSRS disability retirement application has made its way in the “process” to the “Third Stage” — the Merit Systems Protection Board — then I (as an attorney) must be unequivocal in my recommendation:  You need an attorney.  I believe that individuals who file for Federal Disability Retirement benefits should retain a competent attorney at every stage of the process, but there are always considerations of financial ability, and perhaps other considerations, which prevent someone from hiring an attorney at the initial stages of the process.

At the MSPB level, however, it is important for two (2) reasons (there are many, many other reasons as well, but for brevity’s sake, I choose the main reasons):  1.  It is extremely important to prove by a preponderance of the evidence that you meet the eligibility requirements, to an Administrative Judge, who is both a lawyer and a Judge, and therefore has the knowledge and background to make a reasoned assessment of the evidence presented, and 2.  You must be able to present the case in such a way that, if the Administrative Judge makes an error in his or her decision, you are prepared to appeal the case to the next level.

In order to be able to appeal the case to the next level, you must know the law, be able to present your evidence at the MSPB in accordance with the law, and therefore be able to argue that a decision rendered against you is in violation of the law.  In order to do this, you need an Attorney.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: More on the MSPB Stage

While I believe that an attorney versed in the Federal Disability Retirement process can be helpful at all stages of the process, at the Third Stage — the Merit Systems Protection Board stage — the input, assistance, and representation of an experienced attorney can be invaluable.  This is essentially the “last” stage of the three-stage process.  Of course, there are two additional stages, but both concern an appeal — in the event that the Administrative Judge rules against the disability retirement applicant at the MSPB.

During the process at the MSPB, the Appellant will have what is called a “Prehearing Conference”.  At such a conference (held over the telephone), the Judge will go over with both parties (the applicant and the OPM representative), certain basic essentials about the law, to include the standard of proof, witness list, preliminary legal matters, etc.  What is important at such a Prehearing Conference is to carefully listen to the Judge.  As each Judge is human, and thus different, it is important to listen and carefully be attentive to what the Judge is looking for.  If more medical documentation is needed, exactly what is the Judge looking for?  If there is a concern about a certain legal issue — say, the issue of accommodation — what exactly is the Judge concerned about?  By being attentive to the questions of the Judge, and fashioning the Hearing to address those concerns, the applicant greatly enhances his or her chances of winning at this crucial stage of the process.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: When & how to act

When people call me to ask if they need legal representation in filing for disability retirement benefits under FERS or CSRS, I try and provide as “objective” an opinion on the matter as possible. I represent hundreds of people in filing for, and obtaining, disability retirement benefits; it is my specialty, and it is how I make a living. At the same time, however, I believe that I can be completely honest in providing guidance as to whether an individual should obtain legal representation, or needs to obtain representation.

For instance, for individuals who have already sent in their disability retirement packets to OPM (via the Agency for those still on the rolls; directly to Boyers, PA for those who have been separated from service for 31 days or more), I normally advise the applicant to wait — wait until a decision has been rendered, and hopefully the individual will not have to expend the funds for attorneys fees, and an approval will be in the mail. On the other hand, every now and then, an applicant who is waiting for a decision from the Office of Personnel Management, will describe the content and substantive materials comprising the disability retirement packet, and certain statements — during a telephone consultation with me — concerning what is stated in the applicant’s Statement of Disability, will give rise to concern, and in those instances, it may be wise to either withdraw the application, or immediately take steps to supplement the disability retirement packet.

Each FERS or CSRS disability retirement packet is unique, because each individual & individual’s medical condition is unique. That’s what makes the practice of law in the field of representing Federal and Postal disability retirement applicants so interesting, and so professionally satisfying.

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

Federal Disability Retirement: The Role of the Attorney

Obviously, as with all areas of law, the primary role of an attorney in representing a Federal disability retirement applicant (aside from the obvious role of obtaining the disability retirement annuity), is to render useful and effective advice in the representation of the Applicant’s submission before the Office of Personnel Management.

Often, however, in the process of performing such a role, engagement with the Federal or Postal employee’s Agency and supervisor is inevitable and necessary. The timing of such an engagement is crucial. Attorneys need to be careful that his or her representation is not only rendering good advice; further, it needs to be effective.

As hard as it is for an attorney to admit, sometimes it is better for a Federal Disability attorney to take a “back-seat” role, and quietly advise the client but allow the client to deal with the Agency. Indeed, an Agency will often begin to act irrationally, unnecessarily confrontationally, and further, complicate matters by involving their Agency counsel in the matter. In such a simple matter as informing the Agency that the employee is in the process of preparing a disability retirement application — sometimes it is better for the employee to bring it up with his or her supervisor, without the direct involvement of the attorney, especially if the Federal employee has a good working relationship with the Supervisor. Part of the job of the Attorney is to render good advice — and that sometimes means, taking a back seat.

Sincerely,

Robert R. McGill, Esquire

OPM FERS & CSRS disability retirement: Answering OPM’s Concerns at the Reconsideration Stage

Beyond making sure that you have enough time for your treating doctors to provide you with updated medical documentation at the Reconsideration Stage of the process, an applicant must take care in addressing the the underlying concerns expressed by the Office of Personnel Management.

Unfortunately, this is a stage in the process which will probably require an attorney who is knowledgeable in the area of Federal Disability Retirement law. Why? Because the Specialist who denies an application for disability retirement will often provide a “laundry-list” of purported evidence which the Specialist claims would be “helpful” in proving your case. The laundry list provided is often a mis-statement of the law. It is up the the attorney to point out to the Office of Personnel Management what the correct statement of the law is; at the same time, however, it is important to “read between the lines” of a denial letter, and address some of the underlying “missing links” which provided the basis for the denial.

This is where the assistance of an attorney can be crucial. For it is the job of a disability retirement attorney at the Reconsideration Stage to do three things: (1) point out the correct law, (2) provide updated medical documentation to address the concerns of OPM in the denial letter, and (3) correct any errors that the applicant made in the initial stage prior to having contacted a disability retirement attorney.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Situational Disability II

To reiterate: Situational disability can be an issue which can defeat a disability retirement application, precisely because OPM (and if it gets to the MSPB level, the Administrative Judge) can conclude that the Psychiatric disability in question originates and results in response to the hostile workplace environment.

These three concepts are important to understand — originate, result in, and result “in response to”. A psychiatric condition can originate from a hostile work environment, but as long as the medical condition then pervades beyond the work environment and impacts a person’s life through and through, then that alone does not constitute situational disability, because while it may have originated from A, it is not limited to A.

The second concept — results in — must be seen in the context of the condition of the psychiatric disability. Thus, does the (for example) Major Depression or anxiety result solely from the work environment, or does one experience the symptoms while at home, even while away from the work environment?

And thirdly, does the individual experience the symptoms of the psychiatric condition “in response to” his or her exposure to the work environment, or are the symptoms all-pervasive: i.e., throughout all aspects of the person’s life?

To differentiate these three concepts is important in avoiding the pitfalls of situational disability, and in helping to prepare a Psychiatrist in either preparing a medical narrative report, or in his or her testimony before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Petition for Full Review

The next step beyond the Merit Systems Protection Board, of course, is a choice: You can either file an immediate appeal to the Federal Circuit Court of Appeals, or file a Petition for Review before the Merit Systems Protection Board, where the decision of the Judge at the Merit Systems Protection Board will be reviewed by a panel of 3 Administrative Judges.

Normally, I recommend taking the latter route, only because it allows for another step to win, as opposed to putting all of one’s eggs in the proverbial “one basket”. If an individual has put on a case without being represented, by going through OPM’s procedures, then putting on a case at the MSPB, I will rarely accept a case at the Petition before the Full Board level.

My reasons are essentially as follows: First, it was not “my case”. The applicable criteria to have an MSPB case reversed by filing a Petition for Full Review, is to point out an “error of law” that the Judge made. If I put on a case before an administrative judge at the MSPB, I try and put on “my case” — one that I believe in; one that I am an advocate for; one that I am passionate about, because it is a case on behalf of a client whom I represent.

That is why I win most of my cases, both at the OPM level, as well as before the MSPB. When someone else has gone through the process, it is simply not “my case”. To nitpick for an error of law that the administrative judge had made, when it was not my case, and not the case-laws that I relied upon in putting on my case, is simply something that I have little interest in doing. That is not to say that a case cannot be won at a Petition for Full Review. I have won enough of them; it is a matter of pointing out the error of law which the administrative judge made; but a passionate argument is essential to winning such a review.

Sincerely,

Robert R. McGill, Esquire