Federal Disability Retirement: The Right Time (Part 2)

How to determine when is the “right” time to file for Federal Disability Retirement benefits under FERS & CSRS, and when is the right time — those are issues which are quite personal and peculiar to each individual case.  Unfortunately, it is the very inherent nature of medical conditions, medical disabilities, and the chronic & debilitating symptoms that accompany such conditions, combined with the strong sense of loyalty, commitment to duty, and the desire to continue to believe that a Federal or Postal worker will overcome the current condition of disability — that often prevents a person to come to the critical point of determining the “right time”.  And, to put it in its proper perspective, this is probably a good thing, insofar as being a reflection upon the character of most individuals. 

Most individuals have a strong sense of commitment and hard work, and most want to continue to believe that one’s condition of medical disability is merely a temporary state of affairs.  But when such loyalty and commitment comes at the price of one’s personal detriment, it becomes a negative thing.  The problem comes when all of the objective indicators are ignored — when sick and annual leave are being depleted; when excessive LWOP is taken; when performance at work clearly suffers; when each night and weekend are used to recuperate from the day’s work; when savings become depleted; when a sense of desperation sets in.  Then, when it comes time to make the decision, it becomes an emergency. At that point, while it is not too late to begin the process, it is probably less than the “right time” to have started the process.  While better late than never, it is a good thing to take affirmative control of one’s future, and not let events control it uncontrollably.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Federal Workplace (Part 2)

In filing for FERS or CSRS Federal Disability Retirement benefits with the Office of Personnel Management, it is important to stay away from issues which may explicitly or implicitly characterize the particular medical condition as being “situational” in nature.  However, this does not mean that the medical condition cannot have originated from, or been exacerbated by, the workplace environment.  Remember that OPM disability retirement is not like OWCP/Worker’s Comp — the issue of causality, or whether the medical condition occurred as a result of your occupation, is not important to prove.

However, sometimes, it is simply an indisputable fact that the medical condition originated from the workplace, or was exacerbated by conditions in the workplace.  Such origination or exacerbations, once it takes on a “life of its own” and becomes chronic and pervasive such that the medical condition impacts a person both at the workplace as well as outside the workplace, then it has transformed into a medical condition beyond being merely “situational”.  Thus, that which originated as a “situational” medical condition may well no longer be a situational one.  In such cases — and that is normally the case in almost all medical conditions which begin as a situational disability — there would be no problem with filing for OPM disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Don’t Confuse the Standards

People who call me for advice, who are potential candidates as clients for Federal Disability Retirement benefits under FERS or CSRS, often interchangeably use terms which apply to different standards:  standards of total disability as opposed to a medical disability which impacts one’s ability to perform one or more of the essential elements of one’s job; whether a medical condition is an “accepted” disability (a concept which is often used in Social Security disability cases); whether a person can file for Federal Disability Retirement benefits even though he “hasn’t reached MMI” (“Maximum Medical Improvement”) — which is language encompassing a concept familiar to OWCP/DOL (Worker’s Comp) cases; or, on a different level, the statement that an agency has been “accommodating” an employee by allowing him/her to take sick leave, Leave Without Pay, or to “not have to travel as much” — mistakenly or loosely using the term “accommodation”, when in fact such agency actions do not constitute a legally viable accommodation, as that term is used in Federal Disability Retirement laws. 

It is the job of the attorney to correct, clarify, and otherwise explain the proper terminology and precise application of concepts in Federal Disability Retirement cases.  It is not surprising that people who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS use the various terms in error, or mix terms unknowingly — for there is alot of misinformation “out there”; it is the job of an Attorney who specializes in Federal Disability Retirement law to clarify such confusions.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: OWCP & the Postal Service

For many years, being on Worker’s Comp when injured while working for the Postal Service, worked fairly well. The Postal Service, in conjunction with, and in coordination, would offer an acceptable “modified position”, delineating the physical restrictions and medical limitations based upon the treating doctor’s clinical assessment, or in accordance with the OWCP-appointed doctor. The Postal employee would then work in that “modified position”, and so long as the Postal Supervisor or Postmaster was reasonable (which was not and is not always the case), the coordinated efforts between OWCP, the U.S. Postal Service and the Postal employee would result in years of “quiet truce”, with the tug and pull occurring in some of the details of what “intermittent” means, or whether “2 hours of standing” meant two hours continuously, or something else – and multiple other issues to be fought for, against, and somehow resolved. 

The rules of the game, however, have radically changed with the aggressive National Reassessment Program, instituted in the last few years in incremental stages, nationwide. Now, people are summarily sent home and told that “no work is available”. Postal Workers are systematically told that the previously-designated modified positions are no longer available — that a worker must be fully able to perform all of the essential elements of his or her job. This last point, of course, is what I have been arguing for many, many years — that the so-called “modified job” was and is not a permanent position, and is therefore not a legal accommodation under the laws governing Federal Disability Retirement for FERS & CSRS employees. After so many years of having the Post Office and the Office of Personnel Management argue that such a “modified job” is an accommodation, it is good to see that the truth has finally come out.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The OWCP Paradigm

One may choose OWCP benefits because, financially, it pays more (75% non-taxed for an individual with dependents; 66 2/3% for a single individual) than a Federal Disability Retirement annuity.  It is a pragmatic paradigm to rely upon for the immediate time-frame; however, it is not a practical paradigm for the future.  Obviously, one should obtain an approval from the Office of Personnel Management for one’s disability retirement, concurrently with receiving OWCP temporary total disability payments.  However, upon an approval from OPM, you need to elect between the two — because you cannot be paid by both concurrently.  Many people (rightly) choose to remain on OWCP and keep the OPM Disability Retirement annuity in “limbo or annuity purgatory” — again, because OWCP pays more. 

However, as a paradigm for the future, it should not be relied upon forever.  This, because OWCP is not a retirement system.  Instead, it is a system of allowing for payment during a time of occupational disease or injury, for a person to be able to recover from such an injury.  While on OWCP benefits, however, you cannot work at another job (unlike under FERS & CSRS disability retirement); in fact, if you engage in too many physical activities similar to those which you might do at work, you may find that you will be criminally charged for “fraud”.  This has happened to many people, and it should frighten anyone who is on OWCP.  In such cases, you will often find that you have been videotaped over hundreds of hours — but the “edited” version upon which OWCP investigators charge you with, will be a video clip of about 5 minutes.  Next:  Why OWCP is not a good paradigm for one’s future.

Sincerely,

Robert R. McGill, Esquire

Agency Loyalty and OPM Disability Retirement

Many people who call me and tell me their narrative about the Agency, the medical conditions, the growing inability to perform the essential elements of the job, and the resulting need to file for disability retirement, often reveal an undertone of a common element:  after so many years of loyalty, how could the Agency show such callous lack of caring?

I don’t have an answer to the question of lack of empathy on the part of an Agency; Agencies are made up of individuals; individuals show varying degrees of care, sympathy, and loyalty, but only up to a point:  if such care or empathy will somehow be perceived to harm the “mission of the Agency”, or if walking the proverbial “extra mile” for an individual who needs some temporary support is quite simply seen as “not worth the trouble,” then the individual will simply turn his or her back on the disabled individual.

When the individual turns his or her back on the employee filing for disability retirement, then the Agency turns its back on the person; for, again, Agencies are made up of individuals.  But what about the loyalty that was shown by the employee for all of those prior years?  How about the years of doing overtime, of doing extra work without complaint, etc. — doesn’t that account for some bilateral, reciprocal loyalty?

Unfortunately, it does not amount to much. Loyalty in today’s society is defined as:  What have you done for me today?

For the Federal and Postal Employee who needs to file for Federal Disability Retirement benefits, expect the worst; expect that your Agency will not be supportive during the 6 – 10 month administrative filing process.  Then, if by chance, a supervisor shows some empathy and support, you will have been pleasantly surprised.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability retirement: End of Summer and Postal VER

Summer is almost at an end. The Postal Service, through the auspices of the Office of Personnel Management, is offering Voluntary Early Retirement (VER). For many, this is a positive thing; the decision to take the VER should be a financial decision. An analysis comparing the monetary return should be made between what an employee would receive under the VER and under disability retirement; if the financial difference is great, then obviously the employee should consider filing for disability retirement after the VER has been approved.

Remember that the employee would have one (1) year to file for disability retirement benefits, after the individual has been separated from service. Steps should be taken now, however, before accepting/filing for the VER, to establish the medical condition and disability prior to separation from service. This can be done by discussing the medical condition with one’s treating doctor, before the VER is applied for. Such early steps will help ensure the success of a future filing for disability retirement benefits — because the employee must establish that the medical condition impacted one’s ability to perform the essential elements of one’s job prior to separation from Federal Service.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Purpose of Case Law Citation

Is it necessary for a Federal Disability Retirement Applicant to cite relevant case-laws and statutory authority when filing for disability retirement? Or, should the medical evidence be sufficient? Certainly, there is no statutory requirement that “the law” be referenced when filing for disability retirement. And, further, it is normally not a good idea for a non-lawyer Federal or Postal employee to refer to case-law or relevant statutory authority, if only because non-lawyers often mis-state the law, or misinterpret relevant case-law authority.

The primary purpose why I refer to, and cite relevant statutory authority and case law, even at the initial administrative stage of filing for disability retirement on behalf of a Federal or Postal employee (normally, I will prepare a lengthy legal memorandum for each case), is because I want to preempt any mis-statement of law to the benefits specialist reviewing the application packet. It is important at each stage of the process to point out the relevant law, the applicable case-law, the judicial opinions which have addressed the multiple issues which can deter or potentially derail a disability retirement application. While the benefits specialist at the Initial Stage of the process may not be fully aware of the applicable laws, it is the job of the Attorney to point out the law, and demand that the Office of Personnel Management conform to the relevant, current judicial constraints which should be adhered to.

Sincerely,

Robert R. McGill, Esquire