Tag Archives: federal employee lawyer

FERS Disability Retirement: How Many Should Be Listed?

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I am often asked the question:  How many medical conditions or disabilities should I list in my Applicant’s Statement of Disability (SF 3112A)?  This question is often preceded by another question and answer:  What are your medical disabilities (me to the caller)?  Answer:  I have about ten of them (caller to me).  Let me start out by giving some free advice:  Don’t list ten medical conditions.  Don’t list nine.  Don’t list eight.

When the Office of Personnel Management reviews a Federal Disability Retirement submission under FERS or CSRS, the OPM Representative will review your disability retirement packet until it is approved — and no further.  Approval comes about upon a finding that one of your listed medical conditions disables you from performing one or more of the essential elements of your job.  Now, sometimes OPM will find that a combination of 2 or 3 medical conditions disables you together:  meaning that OPM perhaps found that while a single one did not disable you under their criteria, a combination of two or three did.

Furthermore, it is important to understand that, because the medical conditions and disabilities upon which OPM makes their decision on will be the basis for future continuation of your disability retirement annuity (in the event that you receive a Medical Questionnaire in the future), it is important to limit the listing of one’s medical disabilities on the SF 3112A to those conditions which will likely last for more than 12 months.

Conclusion:  It is important to sequentially prioritize the medical disabilities, in the order of severity, chronicity and duration.  Further, it is important to NOT list the minor medical conditions which, while they may be aggravating, and have impacting symptoms, may not necessarily prevent one from performing the essential elements of your job.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Summer Waiting

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I have written previously about the long and arduous waiting process & period in trying to obtain FERS Federal Disability Retirement benefits from the Office of Personnel Management.

Remember that, in your calculation in attempting to survive financially, economically, emotionally, medically, physically, mentally — and in all other ways, keep in mind that the summer months from July to August often represent a “dead zone” when many Federal employees take time off for vacation, time for family, and time for relaxation.

While it is understandable that this makes the Federal disability retirement applicant nervous and anxious to be placed “on hold” when such an important decision may be held in abeyance, it is simply a reality which must be taken into account.  Don’t get frustrated; be patient.  The summer months will come and go, and the important point is to keep looking forward to the future.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Filing II

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People often come to me at the 2nd (Reconsideration) Stage, or the 3rd (Merit Systems Protection Board) Stage, and ask that I correct the mistakes made in the initial filing. Most mistakes can be corrected. Of course, it would have been better if the Applicant had done it properly the first time, for once the Office of Personnel Management views something which should not have been submitted, it cannot be easily retracted — only further explained.

There are, moreover, certain mistakes which cannot be “explained away” — such as deliberate omissions or deceptions. Thus, if the Office of Personnel Management gets the idea that there is an element of deceptiveness in a disability retirement application — either through omission or deliberate avoidance of an issue — then it becomes a difficult case to win. Honesty is always the best policy, and no Disability Retirement applicant should ever engage in any act of covering up any information. This is conceptually different from emphasizing the elements in a disability retirement application which favor an approval, as opposed to de-emphasizing those elements which tend to obscure the primary elements of an application. Such artful emphasis/de-emphasis should always be a part of every disability retirement application, coordinating the Applicant’s Statement of Disability with supporting medical documentation, to convey a consistent “whole” to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: A New Beginning

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After representing so many Federal and Postal employees over these many years, there are stories which continue to sadden me; as with all professionals, I attempt to bifurcate my life, and not get “personally” involved with my cases.  To blur the lines between providing sound and effective legal advice, and getting “involved” in the personal tragedies of my clients, would certainly undermine the professional effectiveness needed in providing for my clients.  To a great extent, I am successful. Every now and then, however, I am informed of a tragedy — and it touches me. Perhaps that is a good thing; for one can become insensitive, or “de-sensitized” in a way that can be detrimental.

I try and explain to many people that getting Federal Disability Retirement benefits should never be a judgment upon one’s career — let alone one’s life. A career can span a lifetime, or it can extend for a couple of years (i.e., at least the 18 months of Federal Service that is needed to even qualify under FERS). However long, to come to a point in one’s career where it becomes necessary to acknowledge to one’s self that certain medical conditions are directly impacting one’s ability to perform the essential elements of the job — such an admission should never be interpreted to mean that such a circumstance has somehow devalued the worth of a person.

Human beings are complex entities, bundled up by personality, uniqueness, family, job, hobbies, thoughts — a compendium of a history of one’s life.  Note that I merely inserted the concept of “job” within a sequence of many facets.  And, indeed, one’s job is important — it takes us away from the many other bundles of our lives, and forces us to expend 8, 10, 12 or more hours per day, Monday thru Friday, and some weekends, too.  But that which takes up a large quantity of our time does not necessarily or logically result in the definitional essence of a human being; the fact that we spend a great deal of time in the bathroom does not mean that such an activity defines our “essence”.

“Worth” of a human being attaches to each of us, and is inseparable from each human being.  One’s job and career constitute only a small part of us.  Let’s keep that in mind, and in its proper perspective.

Sincerely,

Robert R. McGill, Esquire

 

OPM Medical Retirement: Trying it Without an Attorney

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I get calls all the time by people who tell me that they thought their particular Federal Disability Retirement case was a “slam dunk”; that the medical documentation was there; that everything looked like it should be approved at the first level.  Then, there are people who tell me the same thing after the second, Reconsideration denial — that he or she thought it should definitely pass through.  But law, and especially administrative law before the Office of Personnel Management, has peculiarities beyond a surface, apparent reality.

There is a process and a methodology of obtaining disability retirement. Can a Federal Disability Attorney guarantee the success of a disability retirement application?  No.  Does an individual applicant have a better chance with the assistance of an attorney who specializes in OPM Disability Retirement Law?  In most cases, yes.  Aren’t there applicants who file for medical retirement, without the assistance of an attorney, who are successful?  Yes.  Should everyone who files for federal retirement hire an attorney?  Not necessarily.

When I speak to a client, I try and place him or her on a spectrum — and on one side of that spectrum is an individual who works at a very physical job, and who has such egregious physical medical disabilities; on the other side of the spectrum is an individual who suffers from Anxiety, who works in a sedentary administrative position (please don’t misunderstand — many people who suffer from anxiety fall into the “serious” side of the spectrum, and I am in no way attempting to minimize the psychiatric disability of Anxiety).

Most people, of course, fall somewhere in the middle.  Yes, I have told many people to go and file his or her disability retirement application without a Federal Disability Lawyer.  There are those cases which are so egregious, in terms of medical conditions, that I do not believe than an attorney is necessary.  However, such instances are rare.  Thus, to the question, Should everyone who files for Federal Disability Retirement under FERS hire an attorney?  Not necessarily — but in most cases, yes.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

Federal OPM Disability Retirement: Be Discerning

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In many ways, there is too much information “out there” about anything and everything.  The area of Federal Disability Retirement Law under FERS & CSRS is no different (and, admittedly, the irony is that I may be adding to the compendium of information with my incessant blogs, articles, reflections, etc.).

The real problem, however, is not necessarily the quantity of information, but rather the quality — and for Federal and Postal employees who are attempting to understand all of the issues surrounding Federal Disability Retirement, it is often difficult to categorize and separate and distinguish between “good” information and “bad” information.

For instance, there is the local/district Human Resources personnel for an employee’s Agency.  Agency H.R. offices are made up of “people” — both good and bad, both competent and incompetent; both helpful and downright ornery.  Then, there is the Office of Personnel Management.  There are multiple internet sites, blogs, a plethora of lawyers (though, there are not that many lawyers who are versed in the area of Federal Disability Law).

The bottom-line issue is not one of “quantity” of information, but how to discern between “good” information and “bad” information.  Too often, a person will call me and tell me that “so-and-so told me that X occurs when you file for Federal Disability Retirement — is that true?”

My response as a Federal Disability attorney is of a standard nature:  I do not sit and argue or contradict some third person whom I have never met, and against a statement which may have been taken out of context.  Instead, I ask my caller, potential clients, and anyone and everyone who reads my writings, to look at the substance of what I write and say; review the consistency of what I have written, and make your own judgment:  Discern well by checking out the facts, and seeing if what others have said about me, or what I have said, rings true.  Be discerning.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Attorney

 

FERS Disability Retirement: The First Denial

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Your Federal disability retirement application was well-prepared:  perhaps it was prepared with the help of an attorney; the medical documentation seemed solidly unequivocal; the doctor made the necessary connections between one’s medical conditions and the type of essential elements of one’s job; the packet, by all accounts, should have been approved, and by all expectations, the approval should have been reasonably expected.

Instead, you receive a letter stating that your disability retirement application was disapproved, and a “Discussion” section follows, explaining why the Office of Personnel Management denied your application.  Why did this happen?  There are multiple reasons why such a denial can occur:  the OPM specialist could be a person who lacks a clear understanding of the applicable laws governing disability retirement applications (more often than not, this is the case, and what you actually get in the so-called “Discussion” Section of the denial letter is merely a regurgitation of the statutory criteria for eligibility for disability retirement, without a recognition of the interpretation of such criteria by Federal Judges for the Federal Court of Appeals or by Administrative Judges from the Merit Systems Protection Board); it could be as simple as the OPM representative selectively choosing to read the medical reports and records, and disregarding or ignoring supportive portions of the medical records and reports; or it could be that additional medical reports and records need to be obtained in order to “shore up” the application.

In any event, whatever the reason for the denial, one should not panic.  It is merely one step in a long, administrative process.  The mere fact that OPM denies your disability retirement application does not mean that they are “right” in doing so; indeed, in my opinion, they are rarely right.  That is why one has the right to have it “reconsidered”, and the opportunity to make further legal arguments, and obtain further medical documentation in support of your claim.  And, beyond that, you have the right to file an appeal to the Merit Systems Protection Board — and beyond.  Never give up; always take it to the next step.  In most cases, it will prove that OPM was in error, and in fighting the denial, you will have secured some semblence of financial security for your future.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Responsibility of the Office of Personnel Management

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Perhaps it is an anomaly to even speak about the issue of “the responsibility” of the Office of Personnel Management — at least, from the general consensus of experiences as told by countless individuals who have filed for disability retirement benefits from the Office of Personnel Management, especially in recent years, one might conclude that OPM is slow to respond, or often refuses to respond at all.

However, to be fair, OPM — as with all other Federal Agencies — is made up of individuals; and the “good” or “bad” of an Agency is entirely dependent upon such individuals.  Most of the disability retirement specialists at OPM are, in my opinion, of the “good” sort.  Without naming names, there are a few of the “bad” sort.  Of course, that says very little, because such a generalized statement could be true of all Federal Agencies.

Moreover, OPM is presently short-staffed, overworked, and way behind on the processing of disability retirement claims.  What used to be a 60-day wait at the initial application stage is taking 90 – 120 days; and at the Reconsideration (2nd) Stage, what used to take 90 days is now taking 120 – 150 days, in many cases.

More than the “time” it takes, however, just remember that the primary responsibility of OPM is to take a careful and serious look at your disability retirement application/packet.  Also, remember that those disability retirement packets which are streamlined, logically constructed, and coherently argued, are the ones which will likely be quickly processed.  Don’t just strap a volume of medical records onto an application and hope for approval; in this day and age, it might be a wise investment to hire an attorney to “streamline” your packet.

Sincerely,

Robert R. McGill, Esquire

When Federal Employees Don’t Know about OPM Disability Retirement Benefits and Fall into a Comfort Zone

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Many people get confused when they first consult with an attorney about USPS or Federal Disability Retirement benefits.  Indeed, before consulting with an attorney, an individual who is faced with a medical condition which (1) is beginning to impact one’s ability to perform one or more of the essential elements of one’s position and (2) will likely last at least a year — such an individual should first take the time to research various websites to “get the facts” about Federal Disability Retirement.

I have had many individuals tell me that they didn’t even know that such a benefit existed; that when they were separated from their U.S. Government gency, the Postal worker or Federal employee was never informed that he or she could file for Federal Disability Retirement.  Unfortunately, ignorance of the law is not a valid excuse; if you don’t file for disability retirement benefits under FERS or CSRS with the Office of Personnel Management within one (1) year of being separated from service with the Federal Government, you will have lost your right to file — forever.

Furthermore, it is dangerous to “take comfort” in the fact that the Department of Labor/The Office of Worker’s Compensation Programs deemed you to be 100% disabled.  That “100%” disabled status may last a lifetime, or it may last only so long as your particular OWCP caseworker is working on your case.  The next caseworker may take it upon him or herself and decide that, Well, no, perhaps you are not 100% disabled, and perhaps sending you to a “Second Opinion” doctor (who, it just so happens, is receiving about 95% of his or her income expounding such “second opinions”) will result in a medical finding that you miraculously “recovered” and are able to go back to work.  Benefits cut off.  You waited a year or more after being separated from Federal Service to find this out, without having filed for Federal Disability Retirement benefits.  You are then, unfortunately, “out of luck”.  Make sure that you file in a timely manner; make sure that you do not take comfort in being on OWCP rolls.  Don’t forget —  Postal or Federal Disability Retirement is an annuity that you can rely upon as a “base income” for your financial security.

Sincerely,

Robert R. McGill
Federal Disability Lawyer

 

CSRS & FERS Disability Retirement: The First Denial

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One should not be overly panicked when the Office of Personnel Management denies a disability retirement application at the initial stage of the process.  Certainly, the denial needs to be taken seriously; the basis for the denial (which is often couched in confusing terms, based upon conflicting — almost contradictory — assertions and claims) must be identified and addressed; additional medical documentation may be needed; the proper legal authorities must be cited.

To put it bluntly:  while it is almost always a good idea to prepare, present, and file a Federal Disability Retirement application with the assistance, guidance and counsel of an attorney, it is essential that an OPM disability retirement denial be rebutted by an attorney who is familiar with the process, the laws, and the compelling arguments necessary in answering the reasons as stated in the “Discussion” section of OPM’s denial letter.

To panic is merely to waste time; to prepare is the wise course; to map out a cogent plan on how to win at the Reconsideration Stage — and, if necessary, the next stage of appeal, the Merit Systems Protection Board — is the wisest approach.  As Easter is a time of renewal, and Spring is now upon us, during the next few weeks, I will be “going back to basics” and reviewing  the process, the law, and the methodology of effectively applying to obtain Federal Disability Retirement benefits for FERS & CSRS employees.

Sincerely,

Robert R. McGill, Esquire