Tag Archives: opm law firm clients

Discretionary Decisions Made by Federal Disability Retirement Lawyers

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As an OPM Disability Retirement Attorney, I am often asked questions by people of which I am unable to answer.  They are not questions concerning “the law” underlying Federal Disability Retirement, but rather questions which go to my “professional discretion” as an attorney in putting together a Federal Disability Retirement packet, prepared to go forth to the Office of Personnel Management.

By “professional discretion” questions, I mean those questions which go to making decisions and choices concerning medical reports, percentage ratings received from the Veterans Administration; permanency ratings received from Second Opinion or Referee doctors, or the fact that one has reached “maximum medical improvement” and is now “permanent and stationary”, and whether to use such collateral sources of medical documentation in putting together a disability retirement packet.

The practice of law is not all objective and straight-forward; part of the “practice” of law is of an art form, based upon one’s experience, and professional discretion sharpened by repetitive experiences in working with the Office of Personnel Management and in representing Federal and Postal employees before the Merit Systems Protection Board.  Further, there are some questions which I answer only for those whom I represent.  I am happy to provide general information about the process of filing for FERS Disability Retirement.  For those whom I represent, however, I reserve for them the art of practicing Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Supervisors, Agencies and H.R. Personnel

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I am sometimes pleasantly surprised at Supervisors — ones who actually recognize that an individual filing for FERS Disability Retirement does so out of necessity, and not out of any personal or professional spite against the Supervisor or the Agency, and that the proper response to convey is one of support, empathy, and cooperation, without needing to compromise the goal and mission of the Federal Agency or Postal Service.  Further, I am often taken aback by the unprofessional and utterly unhelpful attitude of many Human Resources personnel in the processing of a disability claim.

Too often, the H.R. person finds it his or her mission in life to be an obstacle to the smooth processing of an OPM Disability Retirement application under FERS or CSRS.  Yet, the law is clear (though not to many of the H.R. Departments at various agencies):  it is the Office of Personnel Management which has the sole legal authority to make a positive or negative determination on a Federal or Postal Employee Disability Retirement application; at the agency level, the role of the Human Resources person is to try and expedite and efficiently process the Federal Disability Retirement application.

Hopefully, those who have the positional designation of “Human Resources” will come to realize in the future what it all actually means:  he or she is supposed to be a “resource” (a positive one, for that matter) with a “human” emphasis.

Sincerely,

Robert R. McGill
FERS Disability Attorney

 

FERS Disability Retirement: The (non) Problem of Causality & Causation

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In a Worker’s Comp (DOL/OWCP/FECA) case, causation and causality often loom as significant issues, and doctors often have to walk a difficult line in making unequivocal statements, or somewhat equivocating statements, as to the “cause” of a medical condition or injury.  Such statements can sometimes be the singular focus as to the success or failure of an OWCP case.  Why?  Because compensable injuries and medical conditions must be related to the job — either as something caused by an accident while on the job, or in some way occupationally related.

In Federal Disability Retirement cases under the current FERS system, one can be on a skiing vacation and incur in an injury, and so long as that person is unable to, because of the injury or illness, perform one or more of the essential elements of one’s job, one is thereby eligible for OPM Medical Retirement benefits under the FERS system.

Sometimes, however, the issue of causation comes into the picture, but can work in a detrimental way, but need not.  Let me clarify:  In a chemical sensitivity case, or a psychiatric condition which finds its originating “causation” from the workplace, the doctor may want to relate the “cause” of the health condition directly to the workplace.  This is fine, so far as it goes — and, ironically, most doctors (because they have no idea about FERS Medical Disability Retirement) think they are doing their patients a favor by relating it as “causally related” to the workplace.  More often than not, however, it can open up a “can of worms” — of being characterized by the U.S. Office of Personnel Management as a “situational disability“, which must be avoided like the plague.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Right Timing

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Timing the preparation and submission, and ultimate separation/retirement from Federal Service in getting Federal Disability Retirement benefits under FERS or CSRS is rarely a method of precision; it is closer to art than it is to science.  That is because there is the “human” element involved — of when does the medical condition reach its critical point where one cannot withstand the daily and chronic pain; is the doctor ready to support the Federal Disability Retirement application; is the Agency sympathetic or suspicious; can the reduced finances be worked out for a livable standard of living; will the future allow for all of the elements to coalesce?

There are many, many such human elements which must come into play.  All too often, however, the “right time” for contemplating filing for Federal or Postal Disability Retirement benefits is simply determined by external circumstances, such as reaching a critical point in one’s medical condition such that there is simply no other choice left, as opposed to being able to rationally and calmly make an affirmative decision for one’s future.  Whatever may be the particular and peculiar circumstances of a given Federal or Postal employee, the time to consider preparing a FERS Disability Retirement application must be a decision made by each individual, based upon that individual’s unique circumstances.

Sincerely,

Robert R. McGill, Esquire

OWCP Claims v. OPM Disability Retirement

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I still get periodic telephone calls with much misinformation, mixing terms applied to FERS Disability Retirement with “Department of Labor Retirement” or Worker’s Comp retirement.  While there are indeed people who remain on OWCP temporary total disability for years and years, OWCP/DOL is ultimately NOT a retirement system.  It is a system meant to pay for injured Federal employees and Postal workers while he or she is recuperating from an on-the-job injury.

The Department of Labor thus does everything in its power to get the injured worker back to work, by various means:  assigning a nurse to “oversee” the treatment and “progress” of the worker; by sending the injured worker to second opinion doctors to see if there is a medical opinion different from one’s treating doctor; and other means which have nothing to do with the patient’s best medical interests.

I don’t handle OWCP claims; however, because many individuals who file for Federal Employee or Postal Disability Pension benefits under the CSRS or FERS pension systems have intersecting OWCP issues, also, I have some “on the job” knowledge of such issues.  Ultimately, a Federal Government worker must decide between the two systems, although one can file for both benefits concurrently, one can only receive from one or the other — not both at the same time.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Indicators

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If your weekends are spent for the purpose of recuperating just so that you can have the energy, strength, mental acuity, and sustained focus and attention to go back to work on Monday, then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS.

If, after each day of work, you are so profoundly fatigued that you end up spending each evening just resting, unable to have any significant recreational enjoyment or time for relaxation, time with family, etc., then it is an indicator that you may need to file for Federal Disability Retirement benefits.

If you must take sick leave, LWOP or annual leave every few days, or after a week of work, because you need the time off to recuperate, then that is a further indicator.

Ultimately, each individual must make his or her decision as to the timing and whether one has reached a critical point where filing for Federal Disability Retirement benefits under FERS or CSRS is necessary.  Different reasons for different people; different factors at different times of one’s life.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Disability Lawyer

 

Retiro por Incapacidad Médica para Trabajadores Federales: Los Indicadores

Si como empleado federal del gobierno de los EEUU (trabajador federal en Puerto Rico o empleado postal en los Estados Unidos continentales o en sus territorios), Ud. dedica su fin de semana al solo y exclusivo propósito de recuperarse; es decir, para recuperar energía, fuerza, estabilidad mental y foco de atención a la hora de regresar al trabajo el próximo lunes, entonces, todo esto pareciera indicar que ha llegado el momento de considerar a retirarse por razones medicas bajo los programas FERS o CSRS.

Si cada día de trabajo, se encuentra primero en un estado de profunda fatiga de tal forma que termina el resto del día descansando, incapaz de disfrutar cualquier tipo de recreación, tiempo con la familia, etc., entonces eso indicaría que ha llegado el momento de presentar su solicitud de retiro medico.

Si tiene que tomar días de baja por enfermedad (sick leave), días libres sin paga absoluta (LWOP), o vacaciones (Annual Leave) cada ciertos días, o después de cada semana, es porque necesita tiempo adicional para recuperarse.  Eso también es un indicador adicional.

A las finales, cada persona debe tomar su propia decisión con respecto al tiempo, al momento indicado, donde uno ha llegado tal punto crítico de tal forma que uno no puede más que concluir que aplicar por estos beneficios de retiro medico es algo completamente necesario, que no hay otra opción más para considerar.  Hay diferentes razones para diferentes personas, y hay también diferentes factores únicos para determinar la fecha o el momento adecuado para solicitar estos beneficios.  Esa es una decisión que solo Ud. puede tomar.

Sinceramente,

Roberto R. McGill
Abogado de Retiro por Incapacidad para Empleados Federales

(Traducción/Adaptación por OrelWeb.com)

FERS Disability Retirement: Don’t Confuse the Standards

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People who call me for advice, who are potential candidates as clients for Federal Disability Retirement benefits under FERS or CSRS, often interchangeably use terms or definitions which apply to different standards.

For instance, standards of total disability as opposed to a medical disability which impacts one’s ability to perform one or more of the essential elements of one’s job; whether a medical condition is an “accepted” disability (a concept which is often used in Social Security disability cases); whether a person can file for Federal Disability Retirement benefits even though he “hasn’t reached MMI” (“Maximum Medical Improvement“) — which is language encompassing a concept familiar to OWCP/DOL (Worker’s Comp) cases; or, on a different level, the statement that an agency has been “accommodating” an employee by allowing him/her to take sick leave, Leave Without Pay, or to “not have to travel as much” — mistakenly or loosely using the term “accommodation”, when in fact such agency actions do not constitute a legally viable accommodation, as that term is used in Federal Disability Retirement laws.

It is the job of the attorney to correct, clarify, and otherwise explain the proper terminology and precise application of concepts in Federal Disability Retirement cases.  It is not surprising that people who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS use the various terms in error, or mix terms unknowingly — for there is alot of misinformation “out there”; it is the job of an Attorney who specializes in Federal Disability Retirement law to clarify such confusions.

Sincerely,

Robert R. McGill, Esquire
OPM Disability Retirement Attorney

 

OPM Disability Retirement: The Client

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Waiting for the approval/disapproval, the determination, the decision,etc., when the Federal Disability Retirement packet is sitting on OPM’s desk, is a passive modality of existence. Up to that point, however, it is often a good idea to be actively involved in the process.

Whether having an attorney or not, it is good to “flag” interim dates, to keep on top of how long it has been since the initial letters have been sent out to the doctors, to call the doctors and (diplomatically) ask for a reasonable time-frame within which to have the medical narrative reports written; to ask whether or not a fee is required to prepare the narrative report, and if so, how much, and if prepayment will expedite the report.

Then, once it arrives at the Agency H.R. people (or, in the case of the Postal Worker, the H.R. Shared Services Center in Greensboro, North Carolina), it is a good idea to periodically call (about every two weeks) to see what stage in the process your application is at.  Thereafter, once it is forwarded to the finance office, then on to Boyers, PA, it is a matter of waiting for the CSA number to be assigned, and then the long, arduous wait.

Sincerely,

Robert R. McGill, Esquire