Attorney Representation in Federal Disability Retirement Cases

Many times during the free initial consultation, I am often asked about whether or not, or how helpful, legal representation would be in an OPM Disability Retirement case.  To ask a Federal Disability 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 a Federal Disability lawyer.  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: The (non) Problem of Causality & Causation

In a Worker’s Comp (DOL/OWCP/FECA) case, causation and causality often loom as significant issues, and doctors often have to walk a difficult line in making unequivocal statements, or somewhat equivocating statements, as to the “cause” of a medical condition or injury.  Such statements can sometimes be the singular focus as to the success or failure of an OWCP case.  Why?  Because OWCP compensable injuries and medical conditions must be related to the job — either as something caused by an accident while on the job, or in some way occupationally related.

In Federal Disability Retirement cases under FERS or CSRS, one can be on a skiing vacation and incur in an injury, and so long as that person is unable to, because of the injury or illness, perform one or more of the essential elements of one’s job, one is thereby eligible for Federal Medical Retirement benefits under FERS & CSRS.

Sometimes, however, the issue of causation comes into the picture, but can work in a detrimental way, but need not.  Let me clarify:  In a chemical sensitivity case, or a psychiatric condition which finds its originating “causation” from the workplace, the doctor may want to relate the “cause” of the health condition directly to the workplace.  This is fine, so far as it goes — and, ironically, most doctors (because they have no idea about FERS or CSRS medical retirement) think they are doing their patients a favor by relating it as “causally related” to the workplace.  More often than not, however, it can open up a “can of worms” — of being characterized by the Office of Personnel Management as a “situational disability”, which must be avoided like the plague.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: Discretionary Judgments

There are many things in the long process of getting a Federal Disability Retirement application approved, which are purely “discretionary”, based upon one’s experience, sense of a case, an ear to listening to a client, and based upon a compendium of factors, facts and circumstances, to come up with the “best” decision on a particular issue.  A person who tries to go through the process alone, without the ear, mind, experience or judgment of an attorney who knows the process governing Federal Disability Retirement under FERS or CSRS, has to make such discretionary decisions without the benefit of past experiences.

Such decisions can range from small issues of:  how and when a treating doctor should be approached in the request for a medical narrative; how much guidance the doctor would need or want in preparing a medical narrative report; when and how to inform the agency of the pending decision to file for Federal Disability Retirement benefits, etc.; to the larger decisions, such as which medical conditions and reports to include in the final packet to be submitted to the Office of Personnel Management; and many other such discretionary decisions.  Yet, when grouped together, the complex interactions of the multiple “discretionary judgments” can often make or break a case.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Developing a Case

In most cases, the normal process of disability retirement for the First Stage of the process is anywhere from 6 – 8 months; some fall towards the 6-month range; some take longer than the 8-month range.  The difficulty in most cases is that the potential disability applicant/annuitant obviously wants to get through the process as quickly as possible, most often in order to get a sense of security for the future, that he or she will have the certainty of the Federal Disability Retirement annuity.  All of this is understandable.

The process — of preparing; of submitting; of waiting as it winds through the various Agency channels and finally to Boyers, PA and then to OPM in D.C. — is a process of high anxiety and anticipation.  Sometimes, however, cases must be patiently developed.  By “developed”, I merely mean that, at times, the doctor is not ready to provide the proper medical narrative report, or to state in explicit terms that a person is no longer able to perform one or more of the essential elements of his or her job, and that the medical condition will last for at least one (1) year.  Patience with the doctor as different modalities of treatments are applied, is often crucial in the development of a case.  My involvement in a case, even before it is fully developed, is preferred, only if to guide the client as the medical case develops, or — as is often the case — on issues involving how to respond to an Agency which is just as anxious for the whole process to begin and end, as is the client.

Sincerely,

Robert R. McGill, Esquire

 

December 3rd, 2009

OPM Disability Retirement: The Freedom of Retirement

In this still-fragile economy, many people are rightly concerned that, upon an approval for Federal Disability Retirement under FERS or CSRS, that it will be difficult to “make up” the income with another job, even though a person under Federal Disability Retirement can earn up to 80% of what one’s former Federal or Postal position currently pays.

Yes, it can be tough; yes, the economy is a concern; but recessions ultimately come to an end, and while a job to make up the severe pay-cut may be long in coming, self-employment, to begin a start-up business, or to work part-time is often an excellent opportunity.  Unlike having the larger percentage of pay under OWCP-DOL benefits, a disability retirement annuity under FERS or CSRS is indeed a greater pay-cut.

But salary is not everything; the freedom of retirement, the ability to determine one’s future, and not be under the constant and close scrutiny of Worker’s Comp, accounts for much.  Where some see a severe pay-cut, others see as an opportunity to begin a second career.  And the price of freedom from those onerous fiefdoms of federal agencies is often better health, and greater enjoyment of one’s freedom and retirement.

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

OPM Disability Retirement and Paradigms for the Future

In attempting to decide to file for Federal Disability Retirement Benefits, it is often the case that Social Security disability benefits must be considered (not just “considered”, obviously, for FERS employees, because it is a requirement to file for it), and how seriously and vigorously; and further, whether to pursue, or to continue on, OWCP temporary total disability benefits.  These are “paradigms” that must be considered for the future.  By “paradigm”, I mean that they represent “models” of how a person wants his or her future to be based upon.

For instance, let’s take the paradigm of Social Security disability benefits.  Because FERS employees who file for Federal Disability Retirement benefits must also file for Social Security disability benefits (to see if they qualify; and, if qualified, the offsetting features will apply), one must take into consideration whether or not a Federal or Postal employee will actually want Social Security disability benefits.  This question arises because Social Security has a “cap” in which a person who receives Social Security disability benefits can make ancillary earned income (roughly no more than $12,000 per year in 2013).

Because of this, one must think of the future paradigm of one’s life:  If a person on FERS disability retirement wants to go out and get a part-time job, or start on a path for another career, where he or she makes 15, 20, 25,000 per year or more (because remember, a person can make up to 80% of what a person’s former Federal or Postal job currently pays), then he or she may not want to get Social Security disability benefits.

Most people who are on Federal disability retirement are simply disabled from performing one or more of the essential elements of the particular job; they are not “totally disabled”, and therefore are able to go out and start a second career.  This is the “paradigm” for the future which must be considered, and such a model for the future must be carefully thought through.  Next:  the OWCP paradigm.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agency Interaction

Federal Agencies often act like little fiefdoms.  This is not necessarily a negative thing; each agency is an independent entity, and each has a province of responsibilities which it must carry out and execute according to the statutory mandate provided by Congress.  As independent entities, each agency acts without coordination or regard to other agencies.

Thus, while approval for disability benefits from the Social Security Administration will mean an offset of monetary payments under FERS, such interaction between the two agencies simply goes to the financial payments — not to the substantive issues of approval or disapproval of a disability retirement claim.  Similarly, while receipt of temporary total disability payments from the Office of Worker’s Compensation Programs means that you cannot concurrently receive payments under CSRS or FERS disability retirement (unless you are receiving a scheduled award from OWCP/DOL), the substantive basis of approval or denial of a claim rarely overlaps.  This is because each agency has its own independent criteria for eligibility — meaning that, for Social Security, the “disability” has a higher standard of “total disability”, whereas under FERS & CSRS, it is a lower standard of “inability to perform one or more of the essential elements of one’s job”.  Similarly, with OWCP/DOL, the issue of “causality” and whether it is “work-related” is often the important component of consideration.

All of this is not to say, however, that an approval of a disability benefit from one agency,or a report from a doctor considered for one benefit, should not be used by the applicant for submission to another agency.  Indeed, this should be done — but carefully, and with thoughtfulness.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Interaction with OWCP/DOL

I receive calls periodically as to whether it is of greater advantage to remain on Worker’s Comp (Department of Labor, Office of Workers Compensation Program — “OWCP”) as opposed to going out on OPM Disability Retirement.  My answer remains the same:  OWCP is not a retirement system; OPM disability retirement is indeed that — it is a retirement, where one is separated from Federal Service, and you go out and do what you want to with your life.  Every decision has consequences; every act which we engage in has inherent residual effects, and we have to balance such effects and consequences.  Thus, while OWCP benefits pay a higher rate (75% tax free with a dependent; 66 2/3% tax free without a dependent), there are restrictions:  You must comply with any and all requests (or demands) of the Department of Labor; you cannot go out and get another job, or start another career — because you are deemed “disabled” and are being paid for it.  On the other hand, OPM disability retirement pays less (for FERS, 60% the first year, 40% every year thereafter), but you have the freedom of retirement — you may go out and start another career, and make up to 80% of what your former position currently pays, without losing your disability annuity.  These — and many other factors — are some things to consider when weighing the differences between OPM disability retirement, and receiving OWCP/DOL benefits.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire