Medical Retirement Benefits for US Government Employees: Filing within the Statute of Limitations

Under Federal Disability Retirement for FERS & CSRS, a Federal or Postal employee must file for the benefits within one (1) year of being separated from Federal Service. Another way to put it, is that a Federal or Postal employee must file within a year after being terminated as an employee from the Federal Government or the U.S. Postal Service.  Thus, the 1-year Statute of Limitations does not begin from the “date of injury”, or from the date a person went on Sick Leave, Annual Leave, or Leave without Pay (LWOP).  Rather, the tolling of the Statute of Limitations begins when a person is separated from Federal or Postal Service.  

Thus, for example, if a Postal employee continues to receive “zero-balance” paychecks, it is a good indicator (though not a certainty) that the Postal Worker has not been separated from service, but is merely in an LWOP status but still “on the rolls” of the Postal Service.  In most cases, the Federal employee will be informed that he or she is being separated from Federal Service, through a process of personnel actions, resulting in an SF 50 being issued informing the Federal employee of his or her separation from Federal Service.  From that point on, the Federal or Postal employee has one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS.  

Remember, if you don’t file for it, you can’t make any arguments about your Disability Retirement application.  While there are limitations as to amending or supplementing a Federal Disability Retirement application after it has been file, there is not a scintilla of a chance to argue, amend or supplement if you don’t meet the minimum requirement — i.e., filing for it within the 1-year Statute of Limitations.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Summer & OPM

It seems that one merely jumps from cycle to cycle; from a furious work cycle to a period of delay; and government agencies, including the Office of Personnel Management, is no different.  The summer is almost over, and the Office of Personnel Management should be getting into “full throttle” for decision-making in Federal Disability Retirement cases under FERS or CSRS.

 This can be both a good or bad thing, depending (obviously) upon the decision which is made upon each individual Federal Disability Retirement case.  If an individual’s specific Federal Disability Retirement application is approved, then the world appears as it should — efficient, with the future secured, and the governmental agency having accomplished what it was created to do.  

On the other hand, if an individual’s Federal Disability Retirement application is denied, then the world becomes a compartment of dire circumstances, with increasing doubts and thoughts of unfair treatment.  The key to the latter is the try and keep everything in its proper perspective, which is sometimes difficult to do.  It is the job of an attorney who represents a Federal or Postal Worker in obtaining Federal Disability Retirement benefits under FERS or CSRS to attempt to remain objective, calm, and methodical.  The client may be upset, but if the attorney becomes upset in parallel fashion, then that attorney is not doing his or her job that he/she was hired to do.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Agencies & SF 3112C

Agencies have an amazing ability to be inquisitive, especially into those areas which really do not concern them.  Often, Agencies will insist that, despite all of the relevant, pertinent, and desired medical documentation already having been attached to a Federal Disability Retirement application under FERS or CSRS, the applicant/Federal employee “must” sign the Standard Form 3112C (“Physician’s Statement) , which becomes superfluous and irrelevant.  They insist that the Office of Personnel Management (OPM) “requires” the form, which is an erroneous statement.  OPM has never required a signed SF 3112C so long as the Federal Disability Retirement application is accompanied by sufficient medical documentation to support the application.  Sometimes, the insistence by the Agency is merely based upon ignorance; other times, it is based upon an administrative and bureaucratic inflexibility to longstanding “procedures” which the Human Resources personnel cannot adapt to, or change, because “this is the way we’ve been doing it for X number of years”.  Still, there is a suspicion that in some instances, the “requirement” of SF 3112C is because of a more nefarious reason:  The Agency wants full access to all medical records, notes, treatment notes, etc.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The Appeals

While it is often stated that a Federal Disability Retirement application has three (3) stages to the process, there are additional appellate stages which must be considered, and certain additional steps and actions must be undertaken, in order to preserve the viability of the final two stages of the process.  The initial three stages are comprised of the (A) Initial Application Stage of the process in preparing and filing for Federal Disability Retirement benefits under FERS & CSRS; then (B) if it is denied at the Initial Stage, there is the Reconsideration Stage, where one may submit additional medical documentation and legal arguments, and finally (C) an appeal to the Merit Systems Protection Board, which takes the Federal Disability Retirement application out of the control and hands of the Office of Personnel Management, and allows for an Administrative Judge at the MSPB to hold a Hearing and make a determination.  

The two additional stages of the process for Federal and Postal workers who have filed for Federal Disability Retirement benefits, are:  (1)  a Petition for Full Review (which I recommend should be taken, in the event of a further denial by the Administrative Judge at the MSPB Appeal) and (2) the U.S. Court of Appeals for the Federal Circuit (which can be filed with directly after being denied at the MSPB level, skipping over the Petition for Full Review).  The last two stages of the process — the Petition for Full Review and the U.S. Court of Appeals for the Federal Circuit — will not consider any “new evidence” (except in some rare instances), but will be a review as to whether any error of law occurred.  As such, all of the previous steps of the process would be reviewed, and that is why at each and every step, it is important to know what is important in preserving one’s right to an appeal, what is a basis for an appeal, etc.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Future Reviews

I have had a number of inquiries concerning events which may or may not occur post-approval of a Federal Disability Retirement application, including a Medical Questionnaire or the extent to which Federal authorities may inspect or otherwise monitor a Federal Disability Retirement annuitant.  

First, let me state the obvious:  one should never engage in fraud.  That being said, remember that the benefit of a Federal Disability Retirement annuity under FERS or CSRS overtly encourages that one should remain productive and engaged in the workforce.  Disability Retirement under FERS & CSRS is designed to compensate an individual because of a specific disability from a specific type of job.  It pays less than other forms of compensation (i.e., Worker’s Comp) precisely because it encourages you to go out and find another job in another field, one which may be part-time (and therefore would qualify you because you could not perform a similar job on a full-time basis), or one which may utilize a different set of physical requirements; or one which may be “less intense” than your former Federal or Postal work.  

Sensational stories about Federal or Postal workers who have been arrested because of video-taped evidence of engaging in high-impact sports and recreational activities, or of individuals seen performing physical exertions beyond their “stated medical limitations“, almost always involve OWCP/Worker’s Comp violations.  Under OWCP rules, an individual is receiving “temporary total disability” benefits — and the emphasis must be focused upon the middle word — “Total” — as opposed to a FERS or CSRS Federal Disability Retirement annuitant, who is receiving a retirement benefit based upon his or her medical inability to perform one or more of the essential elements of one’s job, and is encouraged and allowed to go out and get another job making up to 80% of what one’s former Federal or Postal Job paid.  There is a vast difference between the two.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Cost of Doing Nothing

The Office of Personnel Management has been sending out a number of decisions, and many have been denials.  They seem to come in batches; whether by coincidence, or in systematic fashion, OPM has tended in recent months to send out denials which fail to explain, leaving aside any concept of “discussion“, the basis of their denials.  

The irony of having a section entitled, “Discussion”, then merely delineating a regurgitation of the “applicable criteria to be eligible for Disability Retirement benefits“, then making a conclusory & declarative statement somewhat in the form of:  “You do not meet criteria X and Y” is hardly a “discussion” of the issues.  

Moreover, even in the denials which appear to be lengthy is the number of sentences, paragraphs or pages, the content is devoid of any substantive discussion of the issues.  It is more often simply a reference to a doctor, without any rational basis given as to what is lacking, but merely ending with a statement of conclusion, saying, “No objective medical evidence was provided,” or “The medical evidence does not show that…”  

One would expect that a logical structure of reasons would be provided, but such an expectation would fall short of what actually occurs.  The real problem is that, in reading such a denial letter, one doesn’t know where to start, what to answer, or what additional information needs to be submitted.  Thus, you must “read between the lines”.  

The cost of doing nothing is to get a further denial; that is simply not an option.  The best option is to reinforce what is already there.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The MSPB Hearing

If you find yourself at the Merit Systems Protection Board trying to prove to an Administrative Judge that your are entitled to Federal Disability Retirements benefits under FERS, and you have already filed a Prehearing Statement, and your witnesses have been approved at the Prehearing Conference, and further, you have outlined all of the issues, set forth the legal basis, and proffered the expected testimony, it is then “showtime”.

It is obviously preferable for an applicant who is filing for OPM Disability Retirement benefits to be represented by a Federal Disability Attorney — if possible, from the inception of the process, through the Reconsideration Stage, to the MSPB.  However, if a Federal or Postal employee finds that, for one reason or another, you simply cannot afford an Attorney, then here are three (3) tips if you find that you are before an MSPB Administrative Judge:  (1)  Have a doctor testify, and make sure that the testimony of the doctor is precise and to the point (2) Make sure that what you prove to the Judge correlates with what you said you would prove in your Prehearing Statement, and (3) Be prepared to make objections to any of OPM’s cross-examination questions.

Finally, remember that the point of making an objection during a Hearing is not to necessarily stop the question or answer, but rather, to preserve the point for a possible appeal.  It is ultimately difficult for a non-attorney Federal Disability Retirement applicant to formulate and prepare for an effective Merit Systems Protection Board Hearing, and further, it would be better if the Federal or Postal employee had an attorney (who is well-versed in Federal Disability Retirement law) throughout the entire process; but one must play the hand one is dealt with, and that old adage is true even with a Federal or Postal Disability Retirement case under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Connection between the Prehearing Statement and the Hearing

When a Federal Disability Retirement application under FERS or CSRS has been denied twice by the Office of Personnel Management, and one appeals the Federal Disability Retirement case to the Merit Systems Protection Board, there comes a point when the scheduling order requires that each side (the “Appellant” or the one who filed the appeal, and the Office of the Personnel Management) file a “Prehearing Statement”.  

Do not underestimate the importance of preparing a Prehearing Statement.  It is not simply a listing of the witnesses to be testifying at the MSPB Hearing; more than that, it is an opportunity to set the issues, to form in the mind of the Administrative Judge the parameters of what will be proven; an opportunity to proffer and plant the seeds of the evidence which will be presented; to undermine and preempt many of the arguments which are used customarily by the Office of Personnel Management; to argue for the Bruner Presumption (even if it does not strictly apply); and to show how, at this preliminary stage of the process, that the upcoming Hearing is really an unnecessary event.  Thus, the Prehearing Statement, as well as the Prehearing Conference, is an important preliminary step in setting the stage for success in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The MSPB

The Merit Systems Protection Board is the arena, in a Federal Disability Retirement application, where the issues are taken out of the control of the Office of Personnel Management for an independent review of a Federal or Postal employee’s disability application to obtain the benefit.  In a Federal Disability Retirement application, the Office of Personnel Management is given an opportunity (twice — at the initial stage of the process, then at the Reconsideration Stage) to make the “right” decision (in my view, “right” being an approval of a Federal Disability Retirement application under FERS or CSRS, at least for my clients).  

If that decision is a denial, at both levels, then the applicant has the right and opportunity to file an appeal to the Merit Systems Protection Board.  At that level, by a preponderance of the evidence, the Federal or Postal employee must prove that he or she meets the criteria, under the law, to be eligible for Federal Disability Retirement benefits.  Some de minimus extent of discovery is engaged in; a Prehearing Statement defining the issues and identifying the proposed list of witnesses must be prepared; and, finally, a Hearing is set.  It is the forum in which someone other than OPM will have a fresh opportunity to review the case, and this is a good thing.  Otherwise, only the fox would be guarding the hen house, and under that scenario, there would be very few hens left alive, if any.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Expectations

One would expect that there would be a correlative input of effort on the part of the Office of Personnel Management, something like a 1-to-1 ratio of effort reflecting the amount of care put into formulating, preparing, and submitting a Federal Disability Retirement application under FERS or CSRS, with the ratio being met by a corresponding amount of effort on the part of OPM.

If only for the sake of appearance; to give some justification, some acknowledgement of the medical reports submitted; of the time expended in preparing the Applicant’s Statement of disability, etc.

One would expect — or at least, should expect, in a denial letter issued by the Office of Personnel Management, enough of an indicator that the OPM Representative reviewed all of the medical reports, and attempted to remain objective.  Yet, more often than not, a mere paragraph is issued, with a great percentage of that paragraph a regurgitation of a template from multiple other decisions.

Expectations are often nothing more than an imaginary line where one perceives a professional standard to be; but, more often than not, only to have the expectation set at a standard of performance too high to achieve.

Sincerely,

Robert R. McGill, Esquire