CSRS & FERS Disability Retirement: The Decision (Again)

Yes, it is a difficult decision to make — to come to terms with filing for Federal Disability Retirement under FERS or CSRS.  It makes it all the more difficult when individuals wait until the last possible minute before calling up the attorney (me) to file for Federal Disability Retirement benefits.  There have been a few times in the past (very few) when I simply could not take on a case with only a week left before the Statute of Limitations runs out.  The only thing I can do at that point is to identify which forms to fill out (however imperfectly), and give the fax number and the address to Boyers, PA for the individual to file.

Remember the important point:  You can always make factual, medical and legal arguments after you have filed; you cannot make any arguments if you have failed to file on time.  Of course, it comes with the territory — as an attorney who exclusively represents Federal and Postal employees to obtain disability retirement benefits (there are many attorneys who practice Federal Disability Retirement law as one aspect of a larger practice which includes other areas of Federal Employment law), I understand how intertwining the medical condition is, with the anxiety and stress of filing for Federal Disability Retirement benefits, and how procrastination is often part and parcel of the medical condition itself.

At the same time, however, I take pride in doing a good job; I like to service my clients; I like to see the successful outcome.  As such, I am reluctant to take on cases where there is very little time to file.  I have, and will, take on cases where the Statute of Limitations is about to run out, but there must be at least some time left.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The “Process” at the Reconsideration Stage

It is important to understand that the “process” of filing for Federal Disability Retirement, when it comes to the Second, or “Reconsideration” Stage, encompasses two factual prisms:  (1)  The application has now been denied (obviously, and for whatever reason — most likely because of “insufficient medical evidence”) and (2) it is the stage in the process prior to an appeal to the Merit Systems Protection Board. 

This dual prism of the stage, while self-evident, is important to keep in mind, because it requires a duality of duties:  A.  It requires (for the Disability Retirement Applicant) a duty to show something beyond what has already been shown, while B.  It requires the Office of Personnel Management to be careful in this “process” of review, because if OPM makes a mistake at this stage, then the likelihood is great that they will be required to expend their limited resources to defend a disability retirement case before an Administrative Judge, and if it becomes obvious that the case should have been decided favorably at the Second Stage, it reflects negatively upon the Agency.  OPM is an agency made up of people (obviously); as such, just as “people” don’t like to look foolish, OPM as an Agency made up of people, does not like to look “badly” or “foolish”.  This duality of factual prisms is important to understand when entering into the Second, Reconsideration Stage of the “process”.

Sincerely,

Robert R. McGill, Esquire

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 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

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