Tag Archives: OPM disability application

OPM Disability Retirement: Applicant’s Statement & Essential Elements

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When an applicant for FERS Disability Retirement benefits begins to craft his or her Applicant’s Statement of Disability, certain foundational questions must be considered before composing the historical, emotional, substantive and impact-descriptive narrative.  For instance, to the legal criteria, to be eligible for Federal Disability Retirement benefits, one must show that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job — the initial and most foundational question obviously is:  What are the “essential elements” of one’s job?

Now, that may seem like a simple — even simplistic — question.  One needs only to look at the official position description and pick out the major factors of the position.

If only it were that easy.  For, there are many “implicit” essential elements which are not explicitly stated, and it is often those unspoken, “un – described” elements, which are directly impacted by one’s medical conditions and disabilities, which must be creatively woven into the narrative of one’s written statement.  Always remember to take care of the “foundational” issues first; thereafter, the narrative can extrapolate from the major factors of the position description.

Sincerely,

Robert R. McGill
OPM Disability Lawyer

 

CSRS & FERS Disability Retirement: The Decision

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I have often spoken about the “process” of filing, but that mostly concerns the administrative ordeal of filing:  of preparing, of gathering the medical documentation, of writing up the proper applicant’s statement, of putting together the legal arguments in support thereof, etc.  Then, of course, I have spoken about the “human” side of things — of the difficult human ordeal of going through the process.  There is the initial psychological barrier — of starting the administrative process, which is somewhat of an implicit acknowledgment that a person is indeed “disabled”, as if that concept or label has some sort of a “stigma” attached thereto.

One would think that in the 21st Century, all such stigmas would have been extinguished and extinct; and, indeed, most such stigmas are merely self-imposed.  Often, we are our own worst enemy; there is the barrier of ourselves in the process, of actually starting the process.  This is often why an attorney is the best person to handle a Federal Disability Retirement application — because it allows for the process to begin, without it being so intimately and personal a matter to the applicant.

Sincerely,

Robert R. McGill, Esquire

Is There Life after a Disability in the Federal Workplace?

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In tough economic times, it is often difficult to find that “silver lining”. This is even truer for my clients who obtain disability retirement benefits from the Federal Government, as well as those contemplating it. For, ultimately, I always find (without exception) that Federal and Postal Workers who are contemplating filing for disability retirement don’t want to be in the position he/she finds him/herself in.

They have been loyal and hard working Federal employees.  They have shown such loyalty through years and years of committed service.  But, for whatever reasons, and for whatever circumstances and situations, a sudden medical condition, or a degenerative medical condition, has brought that loyal employee to a point where he or she is no longer a “good fit” for a particular kind of job.

Such an employee can often be placed on a PIP (“Performance Improvement Plan”), or be given a Letter of Warning, or be placed on Leave Restrictions, or be told that no more light duties are available — all indicators that the Federal Agency or the particular Post Office is no longer willing to engage in “bilateral loyalty” — in other words, your 20 years of Federal Service will be rewarded with a boot out the door.

But such Federal and Postal employees must always have a positive attitude:  disability retirement benefits are there for you when they are normally unavailable in the private sector; while it pays a flat amount which one may not be able to necessarily live on, it is nevertheless a “base annuity” that can be depended upon.  And, further, a recent New York Times article concerning the state of the present economy pointed out what I have noted in the past:  Private Companies are hiring more and more older workers who have their own health insurance benefits, and who can work part-time without benefits.

That accurately describes the disability retirement annuitant, who is able to make up to 80% of what his/her former position pays now, on top of the disability retirement annuity, and retain life & health insurance benefits.  Always look for the silver lining.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement: Back to basics

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The complexities surrounding preparation of a Federal Disability Retirement application are endless: concerns about the preparation of a proper medical narrative report by the doctor; making sure that the applicant’s Statement of Disability is properly stated to accurately and insightfully reflect the medical condition of the Applicant; being prepared to cite proper legal authority when needed; knowing what information to provide and having enough wisdom to hold back information which is either irrelevant or insignificant, or contrary to proving your case; knowing that certain information may be kept for better use at a Reconsideration Stage if needed; and the Supervisor’s Statement.

As to the latter, it is important to have the certainty that inasmuch as an Applicant for Disability Retirement rarely has any control (or, for that matter, influence) over what is stated in a Supervisor’s Statement, it is important not to worry about it.  Instead, the energy and effort put into gather the necessary medical information and formulating a presentable and convincing disability retirement application should focus upon the medical documentation, the Statement of Disability, and the legal nexus between the two.  Disregard the things which are beyond one’s control; focus upon those things which an Applicant can control — and, if possible, get good legal advice.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Administrative “Process”

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I have previously written about how a Federal Disability Retirement application should be prepared:  that it should be looked upon as an administrative “process”, and as such, it is not like taking a test for a driver’s license, or filing an application to obtain a permit — both of which are similarly “administrative” issues.  The reason why filing for Federal Disability Retirement benefits under FERS or CSRS is different, and is a “process” as opposed to merely filing an “application” for something which will be essentially rubberstamped, is that it requires proof which must meet a certain statutory legal standard — it requires that one prove, by a preponderance of the evidence, that one is entitled to receive disability retirement benefits.

Now, wherever “proof” of eligibility is required, there can be a disagreement as to whether or not such proof met the statutory eligibility requirements.  Other applications, such as filing for a Social Security Card, may also have certain statutory requirements, but normally such administrative applications are fairly “cut and dry” — such as, certain documents will be accepted to prove X, or certain forms may need to be filled out to obtain Y.  But where a legal standard of proof must be met, differences between the Applicant and the Agency may erupt.

OPM may state, and argue, that the medical documentation, the Supervisor’s Statement, the Agency Certification of Accommodation efforts, the comparison between the applicant’s Statement of Disability and the doctor’s statements and notes — did not rise to the level of meeting the legal standard of “preponderance of the evidence”.  This is where many people get themselves into trouble — by thinking that it is merely an “application” to file in order to obtain an administrative benefit.  Then, when it gets denied at the first level, applicants become devastated, thinking that it is the end of the world.  From the outset, it should be looked at as a “process” — one which may take going to the Merit Systems Protection Board, or even further, to the Full Board Review, and then, if necessary, to the Federal Circuit Court of Appeals.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Packet

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It is often a good idea to understand the process of Federal Disability Retirement, in order to effectuate the best approach in winning a case.  Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the “irritant” factor, which may — thinking in purely pragmatic terms — result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon.

Thus, the key is to prepare your packet well — to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is “serious”; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that “other one” that is a headache and will consume your entire day, which one entices you?

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Role of the Attorney

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Obviously, as with all areas of law, the primary role of an attorney in representing a Federal disability retirement applicant (aside from the obvious role of obtaining the disability retirement annuity), is to render useful and effective advice in the representation of the Applicant’s submission before the Office of Personnel Management.

Often, however, in the process of performing such a role, engagement with the Federal or Postal employee’s Agency and supervisor is inevitable and necessary. The timing of such an engagement is crucial. Attorneys need to be careful that his or her representation is not only rendering good advice; further, it needs to be effective.

As hard as it is for an attorney to admit, sometimes it is better for a Federal Disability Attorney to take a “back-seat” role, and quietly advise the client but allow the client to deal with the Agency. Indeed, an Agency will often begin to act irrationally, unnecessarily confrontationally, and further, complicate matters by involving their Agency counsel in the matter. In such a simple matter as informing the Agency that the employee is in the process of preparing a disability retirement application — sometimes it is better for the employee to bring it up with his or her supervisor, without the direct involvement of the attorney, especially if the Federal employee has a good working relationship with the Supervisor.

Part of the job of the Attorney is to render good advice — and that sometimes means, taking a back seat.

Sincerely,

Robert R. McGill
FERS Disability Attorney

 

Federal OPM Disability Retirement: Notifying the Agency

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Fervent loyalty by the Federal and Postal Employee to want to work for as long as possible, and to do the best job possible, is often taken for granted; what is not as common, however, is a “bilateral loyalty” — meaning, loyalty shown by the Agency back to the Federal or Postal employee, especially when such loyalty is needed, during the long process of filing for, and obtaining, disability retirement benefits from the Office of Personnel Management.

In representing a client, I am often asked whether or not the Agency should be notified of our intentions immediately, and my response always is: It depends.  If there is a strong and positive relationship between the employee and supervisor, where there are strong indicators that the Agency will be supportive during the lengthy process, then I will often advise informing them fairly quickly.

More often, however, the Agency has had a long history of acting in a “less than sympathetic” manner — and that is in most cases.  In such cases, I normally advise to wait until the disability retirement packet has been prepared and finalized, and it is ready to be submitted to the Personnel or District H.R. Office.

Each case must be looked at independently, and there are never any easy answers.  Agencies are comprised of individuals; individuals are complex beings, with the potential for compassion and empathy, but just as well with a potential for cold disregard for the plight of an individual. So long as Agencies are comprised of individuals, Agencies themselves act as individuals, and each case must be viewed in that light.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: The Danger of Situational Disability

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The danger of falling into the trap of situational disability, which is one of a number of reasons for denying a FERS Disability Retirement application, can come about quite regularly.  Especially because, in the face of contending with a medical disability that is serious enough to warrant changing one’s career, of filing for medical disability retirement — there is often the Agency’s contentious response, of needing to have the continuity of the work accomplished, of being insensitive and lacking compassion for the applicant; in such a context, the applicant views the Agency’s response as hostile.

The employee/applicant, then, in filing for disability retirement, will often make the mistake of focusing upon the hostile work environment, or the lack of compassion and empathy on the part of the Agency — and this will often warrant a denial of disability retirement based upon the medical condition of the applicant as being “situational disability” — meaning that the medical condition of the employee/applicant is limited to the work situation of that particular office or agency.

This is a completely wrong-headed approach for the applicant.  That is why, when I represent my clients, I am singularly focused upon the 2 or 3 main issues that form the essence of a Federal Disability Retirement case, and insist upon focusing my clients upon those very same issues, while setting aside those tangential issues which can ultimately defeat a disability retirement application.

Understand that these peripheral, tangential issues may well be “important” to my client — but I would not be doing my job in representing my clients if I allowed the peripheral issues to become “front and center” — for that would be a disaster for my clients. I represent people to obtain disability retirement benefits.

That is my job as a lawyer.  That is my focus.  If I allow my focus to waiver, then I am not representing my clients properly.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Attorney

 

FERS Disability Retirement: Don’t rely upon the waiver statute to be able to file

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If an individual fails to file for Federal Disability Retirement within one (1) year of being separated from Federal Service, he/she loses the right to file forever, unless the individual is able to show mental incompetency – and that is indeed a very high standard to meet.  The relevant statutory provision is found at 5 U.S.C. Section 8453; to wit:

“A claim may be allowed under this subchapter only if application is filed with [OPM] before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by [OPM] for an employee or Member who, at the time of separation from service or within 1 year thereafter, is mentally incompetent if the application is filed with [OPM] within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.”

Note the heavy burden of relying upon this statute if you failed to file for disability retirement within the 1-year statutory timeframe:  First, note the discretionary nature of the statute – that even if incompetency is found, the time limit “may be” waived – not a certainty, but discretionary (now, it is true that as the Board in Barton v. OPM, DC-844E-03-0366-I-1, 2004 decision, stated, the Board will review a decision by OPM “to see if OPM abused its discretion or if its decision was wholly unwarranted” – but again, no one should want to rely upon such a review to be able to file for disability retirement).

Second, you would need to have strong medical evidence that you were “mentally incompetent” within the 1-year timeframe after separation from Federal Service. Third, even if you were found to be mentally incompetent, the 1-year statutory timeframe to file begins to run either when a fiduciary is appointed, or when the person is found to be competent, whichever comes first.

Don’t rely upon the waiver provision. Once a FERS or CSRS member finds that he/she cannot perform one or more of the essential elements of the job, it is time to file.

Sincerely,

Robert R. McGill, Esquire