Category Archives: Important Cases, Legal Updates and/or the Current Process Waiting Time

The Circle of Questions and Answers during the Federal Disability Retirement Process

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The tragedies befall frequently enough to make some correlative conclusions; of the athlete who fell short of the finish line; of the one who wanted to just make it one last time, only to become severely injured prior to completing the task; and others who become debilitated within the last 50 yards, or within the parameters of being “within reach” of the end.  This is likened to the Federal or Postal employee who has only a couple of years before full retirement.

To the extent that a Federal Disability Retirement application takes on average 8 – 10 months to obtain (from the start of the process of gathering the medical reports, records, etc., until a decision from the U.S. Office of Personnel Management), the question often becomes whether it is worthwhile filing for OPM Disability Retirement when one has come so close to the finish line.

Each case must be assessed and evaluated with the particular facts peculiar and unique to it; but questions of intelligent assessment should be applied, in order to reach an algorithm of rational conclusions:  When I reach the end (or, “if I…”), will my health be preserved enough such that I can enjoy retirement?  Is the reason why I am contemplating Federal Disability Retirement now, because I have in fact already reached the crucial flashpoint where I am no longer able to continue performing the essential elements of my job?  Is there a possibility that I will not in fact be able to endure the remaining X-number of years left before I reach full retirement?

Questions prompt answers; answers, even if preliminary and tentative, begin the process of further questioning; and so the circle of questions and answers begin to guide and resolve the issues which trouble the soul.

Sincerely,

Robert R. McGill, Esquire

 

February 22nd, 2013

CSRS & FERS Disability Retirement: The Coming Year

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For all Federal and Postal employees who are considering, or may consider in the coming year, filing an application for Federal Disability Retirement benefits under FERS or CSRS with the U.S. Office of Personnel Management, I hope that this “continuing blog” has been helpful, and will continue to be helpful. 

In the coming year, I will attempt to stay on top of any changes in the current laws, including statutory changes (if any), any new developments handed down through opinions rendered by the U.S. Merit Systems Protection Board or the Federal Circuit Courts.  One’s future is what is at stake in making the all-important decision to file for Federal Disability Retirement benefits, and I will endeavor to remain informative, and provide you with a level of professionalism which all Federal and Postal employees deserve.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Statute of Limitation Reminder

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The “end of year” and beginning of the new year is a good reminder for people, that once you are separated from Federal Service, you only have one (1) year to file for Federal Disability retirement benefits.  Furthermore, many people are separated from service right around this time, and just remember:  You can always “supplement” a Federal disability retirement application with additional medical reports, documentation, etc.; however, unless you file the necessary forms before the deadline, you cannot do anything.  The first and most important step in the process is to always file on time; thereafter, you can make other additional medical and legal arguments on behalf of your case.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Decisions before the New Year

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Just before the New Year, the Office of Personnel Management tends to overload on making decisions on the initial application of a FERS or CSRS disability retirement application.

If the decision is positive, it is indeed good news, and a great Christmas present.  If the decision is a denial, it is time to immediately set aside any temporary moods of depression, and recognize that, in taking into account the Christmas & Holiday seasons, the delays in the mail system, and the fact that the date of the denial letter may already be weeks old, you only have thirty (30) days from the date of the denial letter to file a Request for Reconsideration.

Timing is always important, and submitting the request in a timely manner, and beginning work on gathering the additional medical documentation is important, especially in light of the “shortened” period of response-time precisely because of the Holidays, Christmas, New Years, etc.  Procrastination will not help one’s case; one needs to be “business-like” and move forward to affirmatively take it to the next level, for the next fight with OPM.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Patience is a Necessity

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I have said this many, many times:  If patience is a virtue, then Federal employees must be the virtuous of all people, especially those who are filing for Federal Disability Retirement benefits and waiting upon the Office of Personnel Management to make a decision.

Then, even after it is approved, it is often months and months until one’s case is finalized and taken out of the “interim” pay status to final pay status; or, if the case is denied at the First Stage and you have to file a Request for Reconsideration, submit additional medical and other evidence, file a Memorandum of Law to try and convince the Second Stage Representative that, indeed, contrary to what the First Stage Representative had argued, you have been in full compliance and meet with all of the criteria for eligibility for FERS or CSRS disability retirement benefits — which can take an additional 120 – 150 days.

Then, of course, if it is denied at the Reconsideration Stage of the process, you must file an appeal within thirty (30) days to the Merit Systems Protection Board, where the Administrative Judge is mandated by statute to conclude a case from the time of appeal within 120 days.

The entire “process”  — and this is precisely why I refer to the administrative procedure of filing for Federal Disability Retirement benefits under FERS or CSRS as a “process” — requires and demands patience.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement: Developing a Case

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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

Federal & Postal Disability Retirement: OWCP, SSD, NRP, Etc.

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Nothing works in a vacuum.  Issues surround medical disabilities, the Federal and Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Federal or Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps.

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark.

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Time It Takes For the “Process”

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Because it is a “process” as opposed to an application to obtain an automatic service, commodity or benefit, a Federal Disability Retirement application necessarily takes time.

It takes time to properly prepare the application; it takes time to have the treating doctors properly address the multiple issues needed in order to meet the legal standards of eligibility; it takes time for the applicant’s statement of disability to be thoughtfully and in a cohesive, coordinated manner be presented in a persuasively descriptive narrative; it takes time for the H.R. office of the Agency, or the H.R. Shared Services in Greensboro, North Carolina, to complete their part; it takes time for the finance office to complete their part; it takes time for Boyers, PA to process and prep the application; then, finally, it takes time once it is sent down to the Office of Personnel Management in Washington, D.C., to receive, review and evaluate the entire packet.

Further, right now, it just so happens that OPM seems to be “backed up” and, concurrently, has a shortage of personnel, and is taking an inordinate amount of time getting to each case.  As I often tell my clients:  If patience is a virtue, then Federal and Postal employees who file for Federal Disability Retirement must be the most virtuous people in the universe.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law II

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A more extensive article on the recent case of Reilly v. OPM has already appeared in FedSmith.com, because it is an important step forward in Federal Disability Retirement Law.  Decided July 15, 2009 by the United States Court of Appeals for the Federal Circuit, it topples another idol of a false standard imposed by OPM:  that medical documentation which is written by a doctor after a Federal or Postal employee is separated from Federal Service may be dismissed as being near-irrelevant in evaluating and reviewing a Federal disability retirement application. This has never made sense, since many medical conditions are progressive and degenerative in nature, and that is precisely what the Court in Reilly argues.  “The field of forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition,” the Court in Reilly argued, citing the classic example that “inferencesabout prior intoxication can be drawn from blood alcohol tests conducted at a later time.”  Further, where “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period the subsequent evidence can be very probative of a prior disability.” Of course medical evidence gathered within the 1-year period after separation of service should be given probative value.  The Court in Reilly states that principle clearly.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Law

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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