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

OPM Disability Retirement: This Economy & Opportunities

I have written and emphasized this issue before, but it is an issue which must be reiterated, re-emphasized, and re-stated: those who file for and obtain disability retirement do not need to feel like their lives are being retired. This is not an admission or an acknowledgment of an end; rather, it is an opportunity for a beginning.

Federal Disability Retirement is merely a time when one sector of one’s life is about to move on into a different sector and phase of one’s life.  It is merely a concession that the long and productive career which one has enjoyed, is simply no longer the “best fit”, and it is time to go on and move on into another sector of life.

Thus, a disability retirement annuitant has the opportunity, even in this tough economy, to look into multiple other and future opportunities. A disability annuitant has multiple advantages in this economy: excellent health insurance that is carried; an annuity which allows for him/her to work part or full time; the ability to pick and choose the opportunities; and a professional background and resume of a long and excellent career in the Federal sector.

OPM Disability Retirement is an option and an opportunity; it is not the “end” of a career; rather, it is the beginning of a future opportunity.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Actions from Federal Government Agencies or the Postal Service

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”. Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment — with the emphasis upon the term “medical”. Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

Agencies Actions and the Federal Disability Retirement Application

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”.

Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control.  Remember that this is a medical disability retirement application — with the emphasis upon the term “medical”.

Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report.  If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement.

This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

Patience During the FERS & CSRS Disability Retirement Process

It is now post-Labor Day Weekend. Summer is essentially over. The Office of Personnel Management will be back in “full force”. The inclination will be to call up OPM and impatiently — imprudently — demand that one’s disability retirement application be reviewed, because it has been sitting on Mr or Ms. X’s desk for the last 90 days. Be cautious of what you request, or demand — because you may get your wish, but with an outcome you do not desire — a denial. I often remark to my clients that if patience is a virtue, then Federal and Postal Workers must be the most virtuous people in the world, because you are the ones who must be most patient — during the years of service you have given, during the process of dealing with a demanding public, and finally, during the process when you need the Federal Government to act quickly — the disability retirement process. Be patient; thereby, be virtuous. Unfortunately, OPM does not have a statutory mandate during the administrative process. If you must call OPM, be courteous in your inquiry, and inquire only if necessary.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Patience is the Key

There is a cyclical pattern which can be identified with the passing of time, and the Office of Personnel Management is no different from other Federal Agencies, departments, or personnel “make-up”.  Summer is here; with the season of vacations and time with families, combined with an already back-logged line of cases and overworked, understaffed personnel, expect delays in receiving a decision on a disability retirement application.  Patience is the key, and Federal and Postal workers have learned by the very nature of working for the Federal Service, how to be patient.

At the same time, being dependent upon an approval of a disability retirement application is worrisome, especially where finances are tight, and the future is uncertain.  Pestering an OPM representative rarely helps to move a case along, and indeed, may even bring about a negative result.  Remember that OPM representatives are simply doing their jobs; do not unnecessarily take up their time by calling them about the status of your particular case.  It has been said that patience is a virtue; by that account, Federal and Postal workers who have filed for disability retirement must be the most virtuous of human beings, for they have endured not only the years of loyal work to the Federal Service, but beyond, while waiting for a decision from the Office of Personnel Management.

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

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