CSRS & FERS Disability Disability Retirement: The “Process”

In my last writing, I briefly discussed why filing for Federal Disability Retirement benefits is, and must be looked upon as, a “process” as opposed to a mere “filing” with an expectation of an “automatic” approval.  This is because there is a legal standard of proof to be met, based upon a statutory scheme which was passed by Congress, and based upon a voluminous body of “case-law” handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  With this in mind, it is wise to consider that, because it is a “process” with two administrative “stages” to the process, as well as an Appeal to an Administrative Judge at the Merit Systems Protection Board, then potentially to the Full Board via a Petition for Review, and finally to the Federal Circuit Court of Appeals — as such, each “step” in the process would naturally have a different and “higher” level of the laws governing Federal Disability Retirement. 

Because of this, it is often a frustrating experience for applicants, because a rejection or denial at the First Stage of the process often reveals the utter lack of knowledge by the OPM representative of the larger compendium of case-laws that govern and dictate how disability retirement applications are to be evaluated and decided upon.  Often, the so-called “discussion” of a denial letter is poorly written, meandering in thoughtlessness, and self-contradictory and with unjustifiable selectivity of statements from a medical report or record.  Such poor writing reflects a first-level decision-making process, and can be a frustrating experience upon reading the denial letter.  It is good to keep in mind, however, that the entire application procedure is a “process”, and each level is designed to have a greater level of competency and knowledge in the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Attorney Representation

I am still often asked about whether or not, or how helpful, legal representation would be in a Federal or Postal Disability Retirement case.  To ask an attorney such a question is often unhelpful, for there is always the question as to how much “self-interest” an attorney has in answering such a question.

What I can state, however, is the following:  Remember that everyone believes that his or her case is a “sure thing” — this is natural, because the very individual who is filing for disability retirement is the one who is suffering from the medical condition, and so it is a very “personal” matter, and a sense of objectivity is difficult to maintain in these matters.

Second, remember that when you hire an attorney, you are not just hiring someone who “knows something” about FERS & CSRS disability retirement; instead, you should be hiring that lawyer for his or her reputation, his knowledge of the administrative & legal process with the Office of Personnel Management and the Merit Systems Protection Board, and how well he is “thought of” by OPM (i.e., how long has he been practicing in the field of Federal Disability Retirement law, does he know the people at OPM, and more importantly, does OPM know him/her?).

Finally, always keep in mind that, while attorneys can be expensive, you must always do a cost-benefits analysis, and look at the benefit you will be receiving (or not receiving) if you do or do not hire an attorney.  Disability retirement benefits are essentially a means of securing one’s financial future, and as such, the benefit to be secured is important enough to consider hiring an attorney.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Beware the Layman

Federal employee attorneys create and manufacture a parallel universe of statutory interpretation, legal argumentation, case-law citations, and extrapolations from esoteric provisions in arguing the “finer points” of law.  Thus, it is a temptation for the lay person — the “non-lawyer” — to attempt to borrow from cases and take a stab at citing case-law and statutory authority in trying to garner support for his or her Federal Disability Retirement application.

In taking on a case at the Reconsideration Stage or the Merit Systems Protection Board, I have the opportunity to read some of the “legal arguments” which non-lawyers have attempted to make.  While many such arguments are valid, some (i.e., too many) mis-cite the law, and often fail to understand and proffer the substantive import of what the cases are saying.  On top of it all, I suspect that the Office of Personnel Management gets a bit annoyed when a non-lawyer applicant attempts to preach the law to another non-lawyer OPM Representative.

A word to the wise:  let lawyers entertain themselves in the parallel universe of the law; let the doctors render their medical opinions; let the non-lawyers make the best arguments possible, in simple language.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Packet

It is often a good idea to understand the process of Federal Disability Retirement, in order to effectuate the best approach in winning a case.  Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the “irritant” factor, which may — thinking in purely pragmatic terms — result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon.

Thus, the key is to prepare your packet well — to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is “serious”; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that “other one” that is a headache and will consume your entire day, which one entices you?

Sincerely,

Robert R. McGill, Esquire