Tag Archives: FERS Disability

Federal & Postal Disability Retirement: An Aristotelian Approach

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Aristotle’s Nicomachean Ethics has been the primary foundation for the Western paradigm of proper behavior in philosophy. Quite distinct from his obtuse Metaphysics, the ethical framework of Aristotle takes a pragmatic, almost Confucian approach to correct behavior — balancing context, temperament, timing and correct behavior in formulating a modulated encompassment of how one should act.

As with all things in life, there must be a “balance” — and a recognition that time and relative context of affairs must be taken into consideration before one should act. In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether one is under FERS or CSRS, one must similarly recognize that there is an insight into the balance of life before one can proceed with any action, whether it is an administrative action before the U.S. Office of Personnel Management, or before one’s own agency.

A Federal Disability Retirement application must be “proven”; as such, there is a distinction to be made between that which one “experiences”, and that which one can “prove”.

In such a context, sometimes a medical retirement packet may take some time in order to fully develop and evolve. Doctors may not be able to be approached immediately; instead, at the right time, and in the right manner, they may be willing to provide the necessary medical and professional support in order to make one’s Federal Disability Retirement case successful and productive.

The pragmatic approach which Aristotle used in his ethics is still relevant today: at the right time, in the proper context, and taking into consideration the temperament of others. In this way, success can be attained by possessing an insight and wisdom into the world of human affairs. This was the approach of Aristotle; and so it was with Confucius.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Are Psychiatric Disabilities Denied More Readily?

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I am often asked whether or not it is more difficult to get OPM Disability Retirement benefits based upon a psychiatric medical condition (e.g., PTSD, Major Depression, Anxiety, panic attacks, Bipolar Disorder, etc.).  Does the Office of Personnel Management deny a Federal Disability Retirement application which is based solely upon a psychiatric condition?  Should a FERS Disability Retirement application always include a physical condition?  The short and simple answer is an unequivocal “No”.

Let me provide a slightly more expanded answer:  (1)  In my experience, psychiatric disabilities present no greater obstacles than physical disabilities.  So long as we can prove, by a preponderance of the evidence, that the medical condition — physical or psychiatric — prevents one from performing the essential elements of one’s job, there really is no difference between the two.  (2)  Do not “add” a physical disability because you think that a psychiatric disability is “not enough”.  This would be a foolish approach.  Focus upon the primary medical conditions, whether physical or psychiatric, in proving your case.  (3)  Remember that OPM Disability Retirement often has other complex factors which come into play — accommodation issues; certain jobs are more easily shown to be “incompatible” with a psychiatric disability (for instance, Law Enforcement Personnel who have psychiatric disabilities obviously must have the mental acuity to perform the inherently dangerous aspects of the position); and remember that psychotropic medications, prescribed and necessary for daily functioning, often have side-effects which impact one’s ability to perform one’s job.

The point in all of this is that there really is no substantive difference between psychiatric disabilities and physical ones, anymore; the societal stigma of “psychiatric medical conditions” has largely disappeared, and the Office of Personnel Management — in my experience — treats both psychiatric disabilities and physical disabilities on an equal par.

Sincerely,

Robert R. McGill, Esquire

 

FERS Disability Retirement: Why is mine denied?

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There are always multiple (unverified) stories of people who have filed for Federal Disability retirement benefits under FERS, based upon what appears to be a “minor” medical condition (at least “minor” in comparison to the medical conditions which were rejected by the Office of Personnel Management per a denial letter), which was approved; yet, you filed a FERS Disability Retirement application based upon multiple major medical conditions, which was denied.

Why me?

Remember that “fairness” is not the criteria in determining the viability of a disability retirement application.

Comparisons of medical conditions with other applicants or co-workers rarely provide any fruitful insight; the point is, the “other guy” got his disability retirement application approved, and you did not.  It may be several factors beyond your control:  Your Supervisor tried to “get back at you” by declaring that all reasonable medical accommodations were provided; the OPM representative which was assigned to your case was overworked and wanted to clear some of the workload, and yours was one of them; one of your doctors made statements which came perilously close to making your case one of “situational disability”.

Whatever the reasons, you should not worry about factors beyond your control; instead you need to focus upon those factors over which you do have control:  You need to have a strategy on how you will counter the initial denial.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Employee Retirement Attorney

 

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

The Affirmative Approach to OPM Disability Retirement Filing

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The road which leads to one’s future financial security is irreversibly tied to the extent of how affirmatively one takes one’s future into one’s own hand (now, that was indeed a mouthful).  By this, I mean merely that, in preparing an application for Federal Disability Retirement, there are going to be all sorts of “outside forces” which pull you towards every different direction.  Friends will tell you one thing; your Agency will tell you something else; your coworkers will give you stories (both good and bad); your Human Resources Department may give you advice; ultimately, you must take an affirmative approach and make sure that your application is coherent, logically structured, and medically supported.

By way of example, an Agency’s Human Resources Department will often insist that the Physician’s Statement, SF 3112C, is a “required” form.  It is not.  They will often give you the form with the return address of the Agency stamped in the upper blank box, for the medical report and records to be returned to the H.R. Department.  Upon receipt, the H.R. Department simply includes the medical documentation (without review or determination that it is helpful to your case), and forwards the packet to the Office of Personnel Management.  This would be the “non-affirmative” approach of doing things.  To take the affirmative approach would be:  Make sure that the medical documentation you submit to OPM is the extent, type, and quality that you want to submit.

Remember:  the applicant has the burden of proof, by a preponderance of the evidence, to show that you are entitled to Federal Disability Retirement benefits.  Don’t let third parties (i.e., friends, coworkers, Agency, H.R. Department personnel, etc.) make the decisions for you.  Take the affirmative approach — either by yourself, or through your attorney.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Disability Retirement: VER, the Economy, & Decisions to Make

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The news coming out on the Voluntary Early Retirement offer for Postal employees has not been very positive.  My information has been gathered from multiple sources:  Official Statements from the U.S. Postal Service; “insider information” from Postal employees; various newspaper accounts and website information.  Recent statements from the APWU President, of course, sheds further light on the matter.  Mr. Burrus warns (wisely, in my opinion) that, in this “uncertain economy, there is no reason to make a hasty decision.”  That is certainly true.  The loss of potential future income over a period of years or decades should be considered; the one sector of the economy which seems to be expanding at an alarming pace is the Federal government, and if the Federal government is unwilling to let AIG and banks fail, then surely it will not allow the Postal Service to self-destruct.  Now, with respect to Federal and Postal employees who must, because of medical conditions which impact his or her ability to perform the essential elements of one’s job, a decision to file for disability retirement benefits is a pragmatic one:  either disability retirement, or risk being terminated because of the continuing decline in performance and ability to complete the essential elements of the position.  An offer of a VER without financial incentives — taking into account what an individual will lose in benefits, pay increases, etc. over the next decade or two — is not a very attractive offer.  Any such VER should be considered carefully.  On the other hand, disability retirement is a different matter:  It is a pragmatic decision to accept the fact that one has a medical condition such that you cannot perform the particular kind of job you hold, anymore.  It is a decision that it may be the right time to “move on” — bad economy or not.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Interaction with Upcoming Postal VER

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High pressure sales always need to be met with a pause, a breath, and a moment of reflection.  This is not to attempt to splash any cold water upon the impending Voluntary Early Retirement packets which will be “in the mail” shortly (April 6 – 10, 2009 is the projected date of mailing out VER offer packets to all VER eligible employees).  For some employees, this may be the best and most rewarding route.  My concern is a simple one, with a long history of truth from the great source of all truths:  “If it is too good to be true, then…”   The short window of opportunity within which a decision must be made (all VER eligible employees must decide whether to apply for retirement during the period of April 10 -May 15, 2009; the actual required documents to apply for the VER must be postmarked by May 15, 2009) is short; this is a serious decision, and must be considered carefully.  Some people will decide that the comparison to disability retirement benefits is great enough to consider filing for VER first, obtaining it, then filing for disability retirement benefits within 1 year therafter.  That would be fine, but there are certain steps (creating a “paper trail”) which should be taken if this 1 – 2 – Step is going to be considered.  In any event, the bottom-line consideration must always be:  Is it in the best interest of my future?  Is it the most I can get?  Is it comparable to disability retirement benefits?  Will I think it was the best decision to make 10, 15, 20 years from now (for example, remember that the years in which a person is on disability retirement counts as years in service for recalculation purposes at age 62).  All in all, any decision that has such a small window of consideration must be scrutinized carefully.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Disability Retirement & Postal Service Voluntary Early Retirement (VER)

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For multiple reasons, early retirement — if eligible; if offered; if … — is an option which must be considered by a Federal or Postal employee.  In the coming months, Voluntary Early Retirement will be offered to Postal Employees; each year, Federal employees who become eligible for some form of early retirement must make hard financial decisions.  In light of the present state of the economy (not good), an offer of early retirement (some not so bad) may have to be considered by the Federal or Postal employee.  In each case of such an offer, the details of any such offer must be carefully reviewed and considered — especially if, concurrently, a Federal or Postal employee is considering filing for disability retirement.  A Federal or Postal employee can only collect one or the other:  you can either receive an early retirement annuity, or a disability retirement annuity, but not both.  You can, however, consider filing for early retirement (in order to continue to have some income), then file for disability retirement within one year of being separated from Federal Service. 

If you take this route of filing for early retirement, then filing for disability retirement, you must be careful.  For instance, if a lump-sum payment is part of an early retirement package, will it have to be paid back if you file for, and are approved for, disability retirement?  Further, remember that the years that you are on disability retirement counts toward your total number of years of Federal Service, when it is recalculated at age 62.  This is an important point.  The short-term benefit of retiring early may not seem like such a good idea 10 years later when inflation eats into the annuity.  A cost-benefits analysis should look to all of the factors involved:  the annuity amount and difference between disability retirement and early retirement today; the difference of the annuity when disability retirement is recalculated, and those years while on disability retirement count towards your regular retirement; and the dollar difference calculated out to the life expectancy.  These are all considerations which must be looked at carefully — not just upon one’s short-term benefit of an early retirement (which may seem great), but more than that, for the long-term security of the Federal and Postal employee.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Quality versus Quantity

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While most Federal Disability Retirement applicants whom I represent, and have represented, retain me at the initial stage of the application, a good many of my clients come to me at the Second (Reconsideration) and Third (Merit Systems Protection Board) Stages of the process.  I find that the vast majority of the individuals who attempted to put his or her disability retirement packet together, and got it denied at the first level, attempted to simply overpower the Office of Personnel Management with a voluminous compendium of medical records.

Wrong move.  Always place quality over quantity.

Streamlining a case is often the key to winning a disability retirement case.  This is just as true for cases involving Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, etc.  Because such medical conditions are often thought of as “not quite” legitimate conditions, applicants often make the mistake of thinking that by overloading the Office of Personnel Management with a thick, unwieldy file of medical records, that the sheer weight of the records will convince OPM that it is a “legitimate” case.

Wrong move.  Don’t be defensive.

Such conditions as Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, Bi-polar Disorder, panic attacks, Generalized Anxiety Disorder — they are all legitimate basis for disability retirement.  Such medical conditions need not be apologized for.  Such conditions need not be “defensively” or “apologetically” submitted.  They are legitimate conditions to file; they just need to be submitted in the proper manner — by having a strong, streamlined, and cohesive medical narrative, properly prepared by the doctor, under the guidance of a Federal Disability Retirement attorney.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Disability Retirement: Thoughts on Specific Disabilities

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There is a view that is often proposed that, for certain medical conditions or disabilities, that a different “approach” needs to be undertaken.  Thus, by way of example, certain medical conditions such as (to name just a few, and of course, the list is by no means intended to be exhaustive) Fibromyalgia, Chronic Fatigue Syndrome (CFS), various forms of Multiple Chemical/Environmental Sensitivity cases, and even psychiatric conditions such as Bi-polar Disorder, Generalized Anxiety, etc. — are often thought to be somehow in a “different” category from (again, by way of example) more “traditional” medical conditions such as Multiple Sclerosis, Lupus, Shoulder Impingement Syndrome, Osteoarthritis, degenerative disc disease, herniated discs (cervical or lumbar), Torn ACL, Failed Back Syndrome, etc.

Thus, the question sometimes posed is:  should the former types of medical conditions somehow be treated “differently” than the latter, more traditional types of medical conditions?  My answer is, generally, “No”.

First, each individual case must be treated based upon the uniqueness of the particular case.  Second, to file a disability retirement application “differently” because you fear that OPM may not accept your particular kind of medical condition approaches the entire process in a defensive, almost defeatist manner.  Third, because Federal Disability Retirement is based upon the symptoms which are manifested, as opposed to a “category” of a medical condition, and further, how those symptoms and manifested symptomatologies impact the essential elements of one’s job, it is the emphasis upon the nexus between the symptoms and the core elements of the job which should always be emphasized, and not what your medical condition is “called” or “named” as.

Thus, as a general point of legal approach, I prepare all of my clients’ disability retirement applications in a similar vein:  that, regardless of what condition you have been diagnosed with, the symptoms exhibited and clinically identified by your treating doctor impact your ability to perform the essential elements of your job.  This is the best approach to take in all cases.

Sincerely,

Robert R. McGill, Esquire