OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: When to Get an Attorney

As I explain to all potential clients, whether an individual should attempt to obtain Federal disability retirement benefits with or without an attorney, is an individual and personal decision, based upon a number of factors.

I place everyone on a spectrum:  on the far left side of the spectrum is a Letter Carrier who becomes paralyzed.  That person does not need me as an attorney. He/she needs to gather the medical records, fill out the forms, and submit the application.  On the far right side of the spectrum is a Supervisor who goes out on “stress leave”.  That person should almost definitely hire an attorney, because disability retirement based upon the medical condition of stress alone, is difficult to obtain. Most Federal and Postal employees fall somewhere in-between those two extremes.  Further, and obviously, I believe that I am of assistance to my clients, and (hopefully), based upon the years of feedback I have received, my clients firmly believe that my legal methodology and approach were instrumental in obtaining disability retirement benefits for them.

Two further things to consider:  First, I rarely accept cases where an individual has filed the application, gotten it rejected, filed for reconsideration, gotten it rejected, and then went to the Merit Systems Protection Board where the Judge upheld OPM’s decision to deny the application:  when an individual has gone through all three Stages, and asks me to file a Petition for Review, I will normally not take on such a case.  I will, of course, consider being hired to re-file the case (assuming that the person has not been separated from service for over a year); but I cannot take on a case for a Petition for Review and further appeal when I have not been the one instrumental throughout the first three stages of the process.  Second, many individuals come to me with barely 30 days left to file.  I take on such “emergency cases” on a case-by-case basis, depending upon my time-allowance, my schedule, etc.

The Lesson:  Each individual must make the decision as to whether or not to hire an attorney, which attorney to hire, when to hire.  From my perspective:  Federal Disability Retirement is, when all is said and done, a process to secure the financial future and stability of one’s life.  As such, hire an attorney who specializes in Federal and Postal disability retirement, and hire one early on in the process.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Symptoms versus Diagnosis

If FERS Disability Retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of a disability retirement application would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level.  For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over.

However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’.  From this perspective, it is important for a FERS Disability Retirement Attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both.

Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement of disability, the medical documentation, the legal memorandum of the attorney, etc.  Thus, it is all-important for the Federal Disability Attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire

 

Merit Systems Protection Board: Hearings are not inevitable

The third step in the process of filing and obtaining disability retirement from the Office of Personnel Management is to appeal the case to the Merit Systems Protection Board. This is initiated after a disability retirement application has been denied twice: First, at the initial stage, then, upon a request for reconsideration and an opportunity to submit additional medical and other documentation, if the Office of Personnel Management denies the application a second time, then the Applicant has the right to file an appeal with the Merit Systems Protection Board.

Such a case is then set to be heard by an Administrative Judge, and mandated to be completed within 120 days from the time it is appealed. Many applicants who go into this third stage have the unwarranted belief that a Hearing is an inevitability, and that there is no further opportunity to convince OPM to reverse themselves, or change their minds. That is simply not the case. Often, the OPM representative at the MSPB level is much more attuned to the evidentiary level required, and will entertain the receipt and review of an updated medical report, or additional diagnostic tests, or more detailed treatment notes, etc. The mere fact that OPM denied the application at the first two stages, and the fact that the jurisdictional landscape has now changed from OPM to the MSPB, does not mean that OPM’s mind cannot be changed. The key is to listen carefully at what OPM’s representative is saying at a Prehearing Conference, or even earlier if contact is made with him/her. By listening and complying with a reasonable request, it can save the applicant needless time and expenses (for the testimony of a doctor can, indeed, be expensive), and have the ultimate outcome that the applicant desires: approval of a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Connecting the Dots

Care at every step of the way in preparing an FERS Disability Retirement application is the key to winning.  The metaphorical “dots” that need to be created and connected, will ensure that each aspect of a FERS Disability Retirement claim is not seen as independent entities, but a part of a larger whole.

When an individual is unrepresented, there is a tendency in filling out the multiple forms that each form is a separate piece of information.  That is an incorrect approach to take. What results from such an approach is why certain cases end up at the Merit Systems Protection Board, where the Board has to figure out whether they can accept a medical condition that the applicant failed to list or identify in the original application; or whether the connection to an essential job element was properly made.

While it is true that the Board engages in “de novo” consideration of a Federal Disability Retirement eligibility issue, their jurisdiction is nevertheless limited by the substantive conditions which are identified in the original application.  Thus, for instance, in writing up the Applicant’s Statement of Disability, it is wise to coordinate it by reviewing the medical documentation; when writing up the impact of the medical condition upon the essential elements of one’s job, it is wise to concurrently review one’s official job description.

While preparing a Federal Disability Retirement application in a disjointed, independent approach, you are in danger of missing an essential dot; by seeing the inter-dependency of each part of the application, you stand a greater chance of not having to go before the MSPB to test whether they can even listen to your case.  Disability Retirement applications must be approached in this “wholistic” methodology; that is ultimately the “winning” approach, where all of the dots have been connected.

Sincerely,

Robert R. McGill, Esquire
Disability Attorney for FERS Employees

 

Each stage for CSRS/FERS disability retirement must be approached differently

In filing for Federal disability retirement benefits, there are essentially 3 stages — the initial application Stage; the Reconsideration Stage; and the appeal to the Merit Systems Protection Board (and, of course, additionally if you are denied at all three stages, you can go further and file a Petition for Review with the MSPB, and beyond that, file an appeal to the Federal Circuit Court). Do not approach all of the first three stages in the same way; there is a philosophical reason for the existence of each, and to approach all three stages in the same manner is often a mistake that unrepresented applicants make.

As a practical matter, for the first two administrative stages before the Office of Personnel Management, while citing applicable statutory authority and case-law is important, it is often wise to keep in mind that you are addressing non-lawyer benefits specialists at OPM. Thus, arguing the law in the first two stages should be performed quite differently from arguing the law to OPM’s representative and the MSPB administrative judge at the Merit Systems Protection Board (3rd) Stage of the process. A “cookie-cutter” approach for all three stages is the wrong methodology to undertake. Each stage in the process must be taken independently, and approached uniquely.

Sincerely,

Robert R. McGill, Esquire

Merit Systems Protection Board: A Different Animal

When an individual has attempted to obtain OPM Disability Retirement under FERS on his/her own, but has failed at both the initial stage as well as the Reconsideration Stage, while it is true that a Hearing before an administrative judge at the MSPB is to be heard de novo (meaning, heard “anew” and where new evidence may be submitted), it is always important to try and introduce something new above and beyond medical reports and records.

This is why I normally insist upon having at least one doctor testify over the telephone. That way, everything can be presented and exposed: the Judge is able to hear first-hand the medical assessment and opinion of the treating doctor, and allow the doctor to be subjected to as much cross-examination as OPM’s representative wants.

This latter aspect is important for the administrative judge to see — that we (the applicant and the attorney) have nothing to hide; the opinion of the doctor is unequivocal and informed, and none of OPM’s questions can shake that opinion. This takes careful preparation and a systematic, thoughtful series of questions and answers between the attorney and the doctor, to meet each of the legal criteria demanded for approval of an OPM Disability Retirement claim.

Sincerely,

Robert R. McGill
Federal Disability Attorney

 

OPM Disability Retirement: Stating it effectively

Whether an attorney is necessary at the initial stages of filing for OPM Disability Retirement is a question which each individual must answer. One thing is clear, however; there are very few cases where a disability retirement application is “clear-cut” based upon the medical evidence. The reviewing personnel at the Office of Personnel Management are not doctors — though they have a “contract doctor” to review applications.

It is the job of an attorney to be the advocate for the client; as such, the tools which the attorney utilize are: words, and the power of words. In taking over cases at the Reconsideration Stage, or the Merit Systems Protection Board, the mistakes that I see which clients have made prior to representation always involve ‘words’ — either too much, or too few, or stated in the wrong way, or not at all.

Verbosity is rarely an asset or advantage; being succinct is almost always the better way; wise choice of words is a must; the order of delineating the medical disabilities, creating the nexus between the medical disability and the inability to perform one’s job — all of those must be stated forthrightly, descriptively, and with a touch of creativity.

Sincerely,

Robert R. McGill, Esquire