CSRS & FERS Federal Disability Retirement: When the Office of Personnel Management Fails to Apply the Law

Federal disability retirement law is often a frustrating process. On the one hand, for an attorney, it can be a professionally satisfying area of law to practice because the end result — obtaining a benefit for an individual who has shown long years of loyal service to working for the Federal Government; providing a source of income for a person who has been impacted by a medical condition; reaching a successful conclusion to a process: these factors are always satisfying for a practicing attorney. On the other hand — this is an administrative process; it is an area called, “Administrative Law”, and at least at the initial stages of the process, the Attorney handling such a case is dealing with non-attorneys at the Office of Personnel Management.

In other areas of practice, there is often an “equality of competence” (presumably), where attorneys compete or engage in adversarial battle with other attorneys. With Disability Retirement Law, however, the “Disability Specialist” at the Office of Personnel Management often has absolutely no clue as to the current laws governing disability retirement. They simply apply a template and, if a specific case goes outside of that preconceived “template”, then the OPM Representative will often deny the case.

Now, in all fairness, most of the people at OPM have a fair idea of the current law, and more importantly, are open to being informed, educated and persuaded by an attorney that a particular case, with its various wrinkles (and all cases have their unique wrinkles), should be approved because of compliance with a particular statute, a relevant case-law, or a particular regulatory statement. In some particular cases, however, when an OPM representative makes a decision based upon complete ignorance of the prevailing disability retirement laws, one can only throw up one’s hands, and hope that the Reconsideration Specialist will have greater knowledge — or, at the very least, is open to being educated on the proper application of the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: Psychiatric Disabilities

I am often asked, on an initial interview/consultation of a potential client, whether or not psychiatric medical disabilities (Major Depression, Generalized Anxiety Disorder, PTSD, panic attacks, Bi-polar disorder, etc.) are “more difficult” to prove than physical disabilities. This question is similar, of course, to the question often asked of certain other kinds of disabilities, like Fibromyalgia, chronic fatigue syndrome, Irritable Bowel Syndrome, and other similar (often designated as “auto-immune” disabilities) medical conditions.

In my experience, there is no single generic answer to the question of whether or not a particular medical disability is “more difficult” to prove than another. In my experience, I have gotten approved an application for Major Depression based upon a single-page note from a Psychiatrist; on the converse/inverse experience, I have had cases rejected at the First Stage of the process (but, fortunately, had the same cases approved at the Second, Reconsideration Stage) showing chronic, failed-back syndrome cases where prior surgical discectomies, multiple diagnostic MRIs showing incontrovertible basis for severe and radiating pain, and multiple specialists verifying the client’s clear and irrefutable inability to perform the essential elements of his/her job. In preparing a Federal disability retirement retirement application, my many years of experience has taught me a number of elementary & foundational lessons: First, a clear and concise presentation of providing a direct nexus between the particular medical condition and the type of job that the Federal/Postal employeee performs, is very important; Second, it is very rarely the volume of records which is convincing; rather, it is the quality of the medical report which is paramount; and Third, it often depends upon which OPM Disability Specialist it is assigned to, which sometimes “makes the difference” between approval and denial.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: The Emergency Filing

On the desk of one of the Circuit Court clerks, in an adjacent county, is a sign which reads: “The fact that you waited until today does not make it into my emergency.” Those who stand in line to file an emergency pleading, either try to ignore the prominently-displayed sign, or hope that some other clerk will attend to his or her needs. Yet, we all know that there are times when, for one reason or another — the year passed so quickly; the medical reports which we expected months ago just arrived; “life happened” and the 1-year mark for filing for disability retirement is upon us — we have a couple of weeks, or perhaps a week, or perhaps only a couple of days, to file for Federal disability retirement benefits.

When such an emergency filing becomes necessary, three things must happen: First, the three essential forms must be quickly filled out (whether they are adequately and sufficiently filled out is another matter — but just remember that if you don’t at least meet the 1-year statute of limitations for filing for Federal disability retirement benefits, you are left with no argument at all; whereas, at least by filling out the forms and filing, regardless of their adequacy or completeness, you can at least argue later that it meant x or y). Those three (3) forms are: SF 3107 Application for Immediate Retirement for FERS; SF 2801 for CSRS; Schedules A, B & C for FERS & CSRS; and SF 3112A, Applicant’s Statement of Disability for FERS & CSRS. Second, fax the three completed forms to Boyers, PA, and Express Mail or FedEx it (and get a fax confirmation sheet); and Third, follow up with a phone call to Boyers to get the name of the person who will confirm that he/she received the fax.

Every now and then, “life happens”, and emergency filings are necessary. In a perfect world, such emergencies should be unnecessary; and while the clerk in the Circuit Court in an adjacent county might look with disgust upon the lawyer or pro-se individual attempting to file an “emergency” pleading, whether it is his emergency, her emergency, or someone else’s fault, the fact still remains: It needs to be filed on time.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: The Human Story

I often refer to a favorite short story of mine, inasmuch as it serves as a paradigm for why I practice disability retirement law: the master storyteller, Anton Chekhov, wrote a brilliant short story entitled, Grief (translator’s subtitle: “To Whom Shall I Tell My Grief,”), where the cab-driver, Iona Potapov, tells the profound story of human need — of a son’s death; a tale of tragedy, and of human indifference. And in the course of driving various strangers in his carriage/cab, where he attempts to tell his very personal story of human tragedy, in the end, he must turn to his horse, and speak the mournful song of human desire to the only one who will listen: “That’s how it is, my old horse. There’s no more Kuzma Ionitch. He has left us to live, and he went off pop. Now let’s say, you had a foal, you were that foal’s mother, and suddenly, let’s say, that foal went and left you to live after him. It would be sad, wouldn’t it?”

Each of us has a human tale to tell. The human tale in disability retirement is often one of enduring devotion to one’s life work; of a medical condition beyond one’s control; and the need to change course in one’s life. As an attorney, I am very busy in my practice. The cost of success, of course, is less time — less time for family, less time for personal pursuits (my first and greatest love is and continues to be the study of Philosophy — that is what I studied in College; that is what I studied in graduate school, before heading off to law school; and I find that, each year, I have less and less time in reading the major works of philosophers — but this is often outweighed by the professional satisfaction I get in obtaining disability retirement benefits for my clients); less time for reflection. I receive many, many calls on a daily basis from clients and potential clients who need to file for disability retirement benefits. I try and listen to each human story — but to listen to the fullness of each story would be to take away from the time needed to spend on someone else. That is why, often, I must direct the conversation with a series of questions. I am not a therapist or a doctor — I am an attorney. If I do not focus upon the direct and impactful issues, and help my clients focus upon the significant issues which directly touch upon Federal Disability Retirement, I am not doing my job. Thus, if I am somewhat focused upon certain foundational issues when speaking to people on the telephone, it is only because I am trying to do the best for all of my clients — to direct and re-direct the issues, like a laser-beam, upon the important issues concerning Federal Disability Retirement. In doing so, I hope I am not like the indifferent passengers who left Iona Potapov on the side of the road, to have him tell his human story to the only one left to tell: his horse.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Frustration of Dealing with OPM

The Office of Personnel Management is a large bureaucracy which handles thousands of cases, including disability retirement applications. Lately, more and more frustrating post-approval issues are appearing, including: sudden interim payments without any prior notice of approval of a claim (not a bad thing to happen, certainly, in comparison to a denial); non-receipt of a letter from OPM, whether approving it or denying it; no communication from OPM after an approval, for months on end; and other problems ad infinitum, ad nauseum. Unfortunately, once a disability retirement application has been approved, there is very little that an attorney can do, anymore than the client can do. Persistence is the key; courtesy is the keyhole; finding the right, competent person at the Office of Personnel Management, and being courteous and persistent, often opens the door. Remember that there is a wide chasm of qualitative difference between “rudeness” and “persistence”; the former will never get you anywhere; the latter can be accomplished with courtesy, and get you very far. When contacting someone at the Office of Personnel Management, keep three (3) things in mind: (1) Be courteous (2) get the name and telephone number of the individual you are speaking with, and (3) try to obtain a specific date on which you will call that person back, and be clear as to what action it is that you want taken, and why. Persistence, courtesy, and further persistence.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "No Other Choice" Case

Then, of course, there are cases where an individual has “no other choice” than to file for disability retirement. Sometimes, it is a chance that is taken — the chance of paying an attorney. Yes, adverse removal actions can impact one’s chances of obtaining disability retirement benefits. A case study: A recent client was removed from a Federal Agency for criminal conduct (obviously, no names will be used, and the facts will be somewhat altered to protect the client’s confidentiality of information). The individual was nowhere near retirement age; but suffice it to say that he/she had been a loyal employee for 20 years. He/she had a medical condition — a psychiatric condition, which pre-dated the criminal conduct. He/she hired me to obtain disability retirement.

What choice did the person have? He/she really had “no other choice” other than to walk away with nothing, or take the chance of paying an attorney (in this case, me). I was blunt about the entire affair: Normally, I am able to get most of my clients approved at the first or second stage of the process, and I will normally ascribe a “success-rate” to a case; in this instance, the probable rate of success, in my opinion, was lower than my normal prediction. Nevertheless, he/she wanted to go forward with it. I contacted the doctors and guided them into writing a forthright medical report; today, the client is receiving his/her disability retirement annuity. Did the person “deserve it” despite the criminal conduct? Absolutely! His/her medical condition pre-dated the criminal conduct, and in fact was a major factor in the actuation of the criminal conduct itself. I am happy for the client, and from a professional standpoint, it is always satisfying to win a case where a client entrusted a case in which he/she had “no other choice” — but once the choice was made, to have made the right choice.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Federal Worker

Whether you work for the U.S. Postal Service, the FAA, the Secret Service, OSHA, FDIC, or one of the other countless governmental agencies, don’t ever think that filing for disability retirement is an “act of surrender” or one which is somehow “taking advantage of the system”. In the private sector, it is the salary-compensation that is emphasized.  In the Federal sector, it is the “total package” of benefits:  less salary-based emphasis, more on other benefits, such as health insurance, life insurance, set number of days for annual leave and sick leave — and disability retirement benefits.  Thus, filing for disability retirement is not a “welfare” move — rather, it is an acknowledgment that you can no longer perform one or more of the essential elements of your job, and you are no longer a “good fit” for that particular job.  Remember that, when filing for disability retirement, the Agency itself must attempt to see whether it can (A) reassign you to another job at the same pay or grade (which is almost never) or (B) legally accommodate you (which, also, is almost never).  Further, disability retirement is not a benefit which pays you such that you can “live high on the hog”; rather, it is a base annuity, with the understanding that you can go out and get another job making up to 80% of what your former position currently pays.  In other words, in most cases, you are expected to go out and be productive in other ways.  Far from being a “welfare benefit” — it is part of the total compensation package you signed onto, and to which the Federal government agreed to.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: The Agency

I have written on this particular topic in the past, but certain issues seem to be “recurring thematic issues” which need constant vigilance in approaching it in the proper manner. Filing for disability retirement requires an affirmation of two foundational hurdles: (1) acknowledgment and acceptance that one has reached a point in one’s life that he/she can no longer perform one or more of the essential elements of one’s job.  This is the “psychological hurdle” which must be overcome.  And, (2) dealing with the Agency — trying to get the Agency to be “on your side” or, short of that, to render any potential agency action to become irrelevant or inconsequential. 

As to the first hurdle, the Federal employee must always remember that filing for disability retirement is not a “shameful” thing — it is a pragmatic business decision:  No longer a good “fit” for one’s job, it is a benefit which one has had as part of the “employment package” that one accepted when one became a Federal employee.  Remember that, in the private sector, an employee may get a greater salary compensation package; in the Federal government, the employment package includes more than salary:  it includes health insurance, life insurance, disability retirement benefits, annual & sick leave, etc.  Filing for disability retirement is simply part of that compensation package.  As to the second, once an employee decides to file for disability retirement, it is important to try and convince the Agency that any adverse actions contemplated (putting you on a PIP; suspension actions; negative performance ratings; contemplated removal actions, etc.) will be vigorously contested — unless it is removal based upon a medical inability to perform one’s job.   Hurdles often arise through inaction and fear; this is your life; take the affirmative road, and begin tackling the issues “head-on”.  The time to file for disability retirement is now — not tomorrow.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirements: The Office of Personnel Management

I once heard a pastor make a rather unremarkable statement, but profound nevertheless in its simplicity and truth: “Where there are people, there are problems.” To assume that an Agency will make a proper, objective and legally sufficient decision all the time, most of the time, or even more often than not, is probably asking too much. The Office of Personnel Management, as with any Agency, is an entity — a large bureaucracy — made up of “people”. Yes, there are laws governing disability retirement; yes, there are rules, regulations and “criteria” which form the foundational basis for the “decision-making” part of evaluating each disability retirement case; but more profoundly, there are “people” who review, interpret, and apply those rules, regulations, and legal criteria in determining the final outcome: approval or disapproval of a claim.

That is why it is important in “how” a case is presented, as much as “what” it is that is being presented. With people, there are personalities; with personalities, there are variances in how any given OPM person reviews a case and makes a decision, from one to another. Where an attorney can be most helpful, is to “elevate” a case out of being merely one case among many, to making a presentation of a case on three fundamental levels: (1) the seriousness of the medical condition, (2) the legal sufficiency of the disability retirement application, and (3) persuasion by argumentation that it would be a mistake — a misapplication of the legal criteria — to disapprove a disability retirement application. All in all, this comes down to one profound issue: Where there are people, there are problems; and where there are problems, it is often a good idea to make the best presentation possible, at the outset of a disability retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Proper Response to the Agency

It is often difficult to inform an Agency of one’s decision to file for disability retirement. On the one hand, it is often a place where a Federal Employee has spent many years working for; with multiple years of interaction, both good and bad, it is a place which has grown to play a prominent role in the employee’s daily life, with necessary interpersonal infusions of personalities, playing such an influence as important as one’s personal family life — and, because a person may spend 8 – 10 hours a day, week after week, month after month, like life in a family, it has come to embrace a place of primary importance in one’s life. As such, to inform such a place of one’s decision to file for disability retirement is, in effect, to inform them of one’s separation from that primary location of importance. Such separation can be as psychologically devastating as a “divorce” which, in many respects, it is similar to. That is often why the role of an attorney can be important. An attorney can be a “middle-man”, an arbiter to soften the strain of such a separation from a federal employee from his or her “family”. Remember, this is an administrative process; it need not be an adversarial process. An attorney experienced in disability retirement law should know the process, and act to soften the separation which has been long in coming, and work to garner a sense of “teamwork” between Agency and employee, to attain as amicable a separation as possible.

Sincerely,

Robert R. McGill,Esquire