Federal and Postal Disability Retirement: OPM May Say So, But… (Part 1)

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.”

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,

Robert R. McGill, Esquire

 

See also: OPM May Say So, But… (Part 2)

Federal & Postal Disability Retirement: The Futility of Waiting for an Agency

In Federal Disability Retirements, the general rule is as follows:  waiting for your agency to act in some way that may prove to be beneficial to your case, is an act of futility.

Whether it is to wait for a performance appraisal; whether to see if the Agency will accommodate you, or not; whether you are waiting for a response from your Supervisor to see if he or she will support your Federal Disability Retirement application, etc. — in the end, a disability retirement application under FERS or CSRS is a medical issue.  It is not an “Agency Application for Disability Retirement”; it is not a “Supervisor’s Application for Disability Retirement”.  It is a medical disability retirement, inseparable from the Federal or Postal employee who is filing for the benefit.

As such, the proper focus should be placed upon the sufficient and substantiating medical documentation.  If the medical documentation, combined with the applicant’s statement of disability, are persuasive with respect to the correlative force of being unable to perform one or more of the essential elements of one’s job, then such a combined force makes all other issues essentially moot and irrelevant.  Don’t wait upon an agency to act; to act affirmatively without depending upon the agency is always the best route to follow.

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

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: Legal Arguments

Federal employee attorneys create and manufacture a parallel universe of statutory interpretation, legal argumentation, case-law citations, and extrapolations from esoteric provisions in arguing the “finer points” of law.  Thus, it is a temptation for the lay person — the “non-lawyer” — to attempt to borrow from cases and take a stab at citing case-law and statutory authority in trying to garner support for his or her Federal Disability Retirement application.

In taking on a case at the Reconsideration Stage or the Merit Systems Protection Board, I have the opportunity to read some of the “legal arguments” which non-lawyers have attempted to make.  While many such arguments are valid, some (i.e., too many) mis-cite the law, and often fail to understand and proffer the substantive import of what the cases are saying.  On top of it all, I suspect that the Office of Personnel Management gets a bit annoyed when a non-lawyer applicant attempts to preach the law to another non-lawyer OPM Representative.

A word to the wise:  let lawyers entertain themselves in the parallel universe of the law; let the doctors render their medical opinions; let the non-lawyers make the best arguments possible, in simple language.

Sincerely,

Robert R. McGill, Esquire