FERS Disability Retirement: Applicant’s Statement of Disability

In most instances, when I am asked to represent an applicant at the Reconsideration Stage, after he or she has attempted to obtain an approval at the Initial Stage without an attorney, I find that the prevailing mistake made is the exaggerated verbosity of the statement itself. The old adage from Shakespeare, which (I know) is too often quoted (and misquoted), from Hamlet, Act 3, Scene 2, where Queen Gertrude responds by saying, “The lady doth protest too much, methinks,” is indeed appropriate and applicable to this issue.

While the applicant’s statement of disability must be detailed, complete, and accurate, it must not be “overstated”. It should reflect the factual and medical integrity of the medical opinions and findings as delineated in the medical records, documents and notes; it should never exceed the medical evidence in assertions, claims or scope. Overzealous self-advocacy is often the problem in cases of disability retirement where the disabled individual represents him or herself. To this, of course, another common adage is applicable: “A person representing himself in court has a fool for a client.”

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Standard Forms Do Not Mean “Standard Responses”

The problem with “Standard Forms” is that they often appear to solicit “standard responses”, and in a Federal Disability Retirement case under the Federal Employees Retirement Systems (FERS) or the Civil Service Retirement System (CSRS), nothing could be further from the truth.  Indeed, it is often because a Federal or Postal employee/applicant who confronts and begins to fill out SF 3112A, Applicant’s Statement of Disability, the very “blocked” appearance of the form, and the constricting questions themselves, makes it appear as if a “standard response” is required.  Don’t be fooled.

By way of example, take a “special animal” — that of a Federal Aviation Administration Air Traffic Controller who must take a disqualifying medication, loses his or her medical certification from the Flight Surgeon, and thinks that filing for Federal Disability Retirement benefits is a “slam dunk”.  Nothing could be further from the truth.  Or, a Customs & Border Patrol Agent who goes out on stress leave, or suffers from chronic back pain.  Are there “standard responses” in filling out an Applicant’s Statement of Disability?  There are certain standard “elements” which should be considered in responding to the questions, but don’t be constricted by an appearance of “standard responses” to a “standard form”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Denial at the First Stage

I would like to state that none of my cases have ever been denied at the Initial Stage of filing for Federal Disability Retirement benefits; not only would such a statement be untrue; it would also be unbelievable.

And yes — even the cases that I file on behalf of my clients, get a similarly formatted denial:  a restatement of the criteria for eligibility for Federal Disability Retirement under FERS & CSRS; a discussion with an elaborate reference to doctor’s notes, dates of treatment, targeted extrapolations of statements by the doctors which are not only selectively chosen in a narrow manner to favor the decision of denial, but further, which are often taken out of context.

Some might wonder:  Doesn’t OPM have greater respect for Mr. McGill?  The answer is:  At the First Level, the representative from the Office of Personnel Management is merely making a decision on one of thousands of files, and a template is being used to process and get rid of cases.  However, one must always remember (as I try to remind everyone) that this is a “process”.  A denial at the First Stage of the process is merely part of the greater process.

It is not something to get annoyed at, or concerned about; it is a stage and a decision which must be dealt with, argued against, and rebutted in the proper, rational, legal manner.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Filing I

Never be deceptive in your filing. Always be truthful. To be deceptive or untruthful will harm your credibility, your case, and ultimately, may defeat your ability to obtain disability retirement benefits. Now, there is a conceptual distinction between being “truthful” and emphasizing certain issues of your case, while leaving certain other issues as secondary and less prominent in the documents & supportive papers filed.

Thus, to take a rather crude example, while everyone in the world spends a great deal of his or her life in the restroom, we rarely — if ever — talk about such events. Is it because we are not being “truthful”? No — instead, while it is an issue which is not emphasized, it is not something which we are also being deceptive about.

Thus, with respect to disability retirement issues, one should never deliberately attempt to mislead, hide, or otherwise “expunge” certain aspects of the disability retirement application. At the same time, however, those aspects which are not very helpful, or which may harm your case, should not be placed in bold-type or underlined in red. Wherever possible, those aspects which will weaken your case, should simply be de-emphasized — but never deliberately hidden.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Confusion About the 1-Year Rule

I am receiving too many questions about certain issues, which leads me to believe that a clarification is again in order.

First, concerning the Statute of Limitations on filing for Federal disability retirement benefits.  A Federal or Postal Employee must file for federal disability retirement benefits within one (1) year of being separated from Federal Service.  Thus, if you have been on LWOP, or on OWCP, or on sick leave, but you are still receiving “zero-balance” paychecks which show that you have NOT been separated from service yet, then your 1-year statute of limitations has not yet even begun.  The 1-year Statute of Limitations begins from the effective date of your separation from Federal Service. Your SF 50 (or, for Postal employees, PS Form 50) would reflect that date of separation.

Second, some of the questions which have been posed to me suggest that there is a misunderstanding as to the substantive requirements of the law, as well.  A Federal or Postal worker does NOT have to have been medically unable to perform one’s job for a full year before filing for disability retirement.  Rather, the requirement is prospective — that your medical condition must last for at least 1 year.  Thus, normally after a few months of treating with your doctor, your doctor should be able to make a reasonable medical determination that your medical condition is going to last for at least a year, and more often than not, for much longer.

The distinction which I am attempting to clarify can make a tremendous difference: Federal and Postal workers filing for federal disability retirement do not have to wait a year after learning of his or her medical condition — that would be foolish, especially because the process of obtaining disability retirement can itself often take 6 – 8, sometimes 10 – 12 months.  Rather, a Federal or Postal worker can file soon after learning about a medical condition, so long as the treating doctor can provide a reasonable medical opinion that the condition will last for a minimum of 1 year.

I hope that this will help clarify any confusion people may have about the “1-year” rule — both as it applies to the ability to file for federal disability retirement benefits, as well as to the issue of how long the medical condition must last.

Sincerely,

Robert R. McGill, Esquire