Tag Archives: considering an attorney with experience before the mspb

Federal and Postal Service Disability Retirement: Each Level of the Process

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Disability retirement, as I have often written about, is a process.  Each stage of the process has certain “requirements” which should be met — by “requirements”, I mean that each stage of the process (the Initial Application Stage, the Reconsideration Stage, and the Third Stage of the Process, a Hearing before an Administrative Judge at the Merit Systems Protection Board) has certain aspects of proof, certain methods of approaching the level of satisfying the burden of proof, etc.

There are, of course, the further stages of Appeal — at the Full Review at the MSPB, and the Federal Circuit Court of Appeals — but these appellate stages deal only with whether or not the Administrative Judge applied “the law” properly or not.

Thus, at the first three stages of the process, there is the necessary requirement of “winning” by submitting the proper medical and other evidence, to persuade the Office of Personnel Management and the Administrative Judge that your Federal Disability Retirement application under FERS or CSRS meets the legal criteria for eligibility.

This is the season for Reconsiderations; the Office of Personnel Management will often make many of its decisions just before Christmas, and just before the end of the year.  If an applicant under FERS or CSRS gets denied at the Initial Stage, just make sure that you hire an attorney who knows what he or she is doing, and isn’t just a “general practice” lawyer who is as blind as the next person, and will merely be one blind person leading the blind.

Each Stage of the process requires a level of expertise to meet the “requirements” necessary to satisfy that particular level; just make sure that you will be led by an attorney who not only knows what those requirements are, but further, knows how to meet those requirements.

Sincerely,

Robert R. McGill, Esquire

 

Federal and Postal Service Disability Retirement: Don’t Act with Haste

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This time of year can result in Federal and Postal employees acting “in haste” — of resigning; of receiving a denial on a disability retirement application and not properly making a decision for one’s future or self-interest; of responding to Agency actions in ways which will not benefit one’s future.

The “Holidays” can be a trying time; those considering filing for disability retirement under FERS & CSRS should take the time to consult with an attorney to review all of the options open, before making any hasty decisions which may impact one’s future and career with the Federal Government.

Remember, even if the Agency is making noises to file an adverse action during this time, or is about to place you on a PIP, or is calling you in for an “investigative interview”, there is always time to respond, and in most cases, a request for an extension of time to respond should, and will, be granted.  Retaliatory agencies and supervisors love to use this Holiday Season, when time is shortened, to file all sorts of adverse actions.

Don’t respond in an inappropriate way; consult an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Right Questions (Part 2)

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Beyond asking questions of one’s self (financial; employment; future; whether one will last until regular retirement, etc.), it is also important to take a two-step process in preparing for a disability retirement application:  First, to do your own, independent research (in this day and age, internet research is the obvious first step), and Second, to contact an attorney.  By the time you contact an attorney concerning disability retirement issues, you should already have an idea as to what your intentions are.

Hopefully, the attorney you contact will be experienced and knowledgeable concerning all aspects of Federal Disability Retirement laws under FERS & CSRS.  There are many attorneys “out there”; some attorneys do work in Social Security, Federal Worker’s Comp, etc.  Other attorneys perform work in various Federal labor matters; and still others perform work in State and private disability insurance issues.  Remember, Federal Disability Retirement is a specific, specialized field of law; it is best to retain an attorney who specializes and focuses upon your specific area of concern.  Finally, in speaking with an attorney, you should come to a point of becoming “comfortable” with that attorney:  and “comfort” comes only as a result of competent and confident advice — advice that is consistent with the facts you have gather from your prior research on the matter.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Process at the MSPB

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When a FERS or CSRS disability retirement application has made its way in the “process” to the “Third Stage” — the Merit Systems Protection Board — then I (as an attorney) must be unequivocal in my recommendation:  You need an attorney.  I believe that individuals who file for Federal Disability Retirement benefits should retain a competent attorney at every stage of the process, but there are always considerations of financial ability, and perhaps other considerations, which prevent someone from hiring an attorney at the initial stages of the process.

At the MSPB level, however, it is important for two (2) reasons (there are many, many other reasons as well, but for brevity’s sake, I choose the main reasons):  1.  It is extremely important to prove by a preponderance of the evidence that you meet the eligibility requirements, to an Administrative Judge, who is both a lawyer and a Judge, and therefore has the knowledge and background to make a reasoned assessment of the evidence presented, and 2.  You must be able to present the case in such a way that, if the Administrative Judge makes an error in his or her decision, you are prepared to appeal the case to the next level.

In order to be able to appeal the case to the next level, you must know the law, be able to present your evidence at the MSPB in accordance with the law, and therefore be able to argue that a decision rendered against you is in violation of the law.  In order to do this, you need an Attorney.

Sincerely,

Robert R. McGill, Esquire

 

FERS Disability Retirement: Attorney Representation

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I am still often asked about whether or not, or how helpful, legal representation would be in a Federal or Postal Disability Retirement case.  To ask an attorney such a question is often unhelpful, for there is always the question as to how much “self-interest” an attorney has in answering such a question.

What I can state, however, is the following:  Remember that everyone believes that his or her case is a “sure thing” — this is natural, because the very individual who is filing for disability retirement is the one who is suffering from the medical condition, and so it is a very “personal” matter, and a sense of objectivity is difficult to maintain in these matters.

Second, remember that when you hire an attorney, you are not just hiring someone who “knows something” about CSRS or FERS Disability Retirement; instead, you should be hiring that lawyer for his or her reputation, his knowledge of the administrative & legal process with the Office of Personnel Management and the Merit Systems Protection Board, and how well he is “thought of” by OPM (i.e., how long has he been practicing in the field of Federal Disability Retirement law, does he know the people at OPM, and more importantly, does OPM know him/her?).

Finally, always keep in mind that, while attorneys can be expensive, you must always do a cost-benefits analysis, and look at the benefit you will be receiving (or not receiving) if you do or do not hire an attorney.  OPM Disability Retirement benefits are essentially a means of securing one’s financial future, and as such, the benefit to be secured is important enough to consider hiring an attorney.

Sincerely,

Robert R. McGill, Esquire

 

FERS Medical Retirement: Beyond the MSPB

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Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire

 

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

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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 Disability Retirement: Symptoms versus Diagnosis

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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