Disability Retirement for Federal Workers: Recognizing the Process & the Necessity for Patience

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to recognize that the entire application endeavor — the initial preparation, formulation and filing; if denied at the First Stage, the ability to file a Request for Reconsideration within thirty (30) days of the denial; the appeal to the Merit Systems Protection Board; a further appeal to the Full Board; then, if necessary, an appeal to the Federal Circuit Court of Appeals — constitutes a “process”, and one which must be prepared for from the very beginning.  

Recognizing that the entire endeavor is a process will help to prepare one for the long haul — not only in being patient with the Office of Personnel Management at the first two stages of the process, but further, with the Administrative judicial process at the Merit Systems Protection Board; then (if necessary) with the Federal Court system.  Without such recognition, one will only experience frustration and anxiety.  As has been stated many times, Patience is a virtue; as such, Federal and Postal employees must be the virtuous of all classes of people, because of the constancy of patience they must endure.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Extrapolating Carefully from “The Law”

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize the major legal cases (those “landmark cases”) from which many other cases derive their foundational basis.  Such cases form the fundamental and overriding criteria of a legal arena, and this is no different in arguing for Federal Disability Retirement benefits under FERS or CSRS, either for Federal or Postal employees.  Furthermore, in citing a case to argue for one’s position of eligibility and entitlement, it is equally important to have read the cases carefully, and to argue the merits of an issue persuasively and accurately.  

One of the worst things that a lay, non-lawyer applicant can do is to mis-cite a case or a statute, and its meaning and ancillary conclusions.  For, when the Office of Personnel Management reviews a case and refutes a particular issue, and further points out that a legal precedent or statutory authority has been mis-applied, one’s credibility as to the substance of the application is not only undermined, but further, the viability of one’s legal argument has been subverted.  As such, it is normally advisable to leave the law to lawyers — and in Federal Disability Retirement cases under FERS or CSRS, to leave it to lawyers who specialize in the field. For, to do little or no harm to one’s self is certainly better than to saw off the branch which one has grasped onto, no matter how tenuous the position to begin with.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled FERS & CSRS Workers: Federal and Postal Employees

With the benefit available to Federal and Postal employees, of a Federal Disability Retirement under either FERS or CSRS, there is often a perception on the part of the non-Federal Sector public, that Federal and Postal employees have benefits which are extravagant.  In these times of economic turmoil, with the Federal deficit exploding exponentially, one might wonder about a benefit which pays an annuity for not being able to work at a specific type of job, yet encourages people to become productive members of society in some other job. 

Yet, in this snowstorm which has just hit the East coast, I see the Postal delivery vehicles making their way through the residential neighborhoods, and Federal Workers going into work.  Federal and Postal workers are the most dedicated workers I have come across.  To a person, each Federal and Postal employee I have represented to obtain Federal Disability Retirement benefits under FERS or CSRS, never wanted to file for or become eligible for the benefit.  They would rather have worked in their career and choice of Federal or Postal job.  But because they suffered from a medical condition such that they could no longer perform one or more of the essential elements of the job, they had to file.  It is a benefit well worth the cost.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Legal Standard & Persuasion

There is a distinction between the existence of a legal standard and the citing of such legal standard — to include statutory references, case-law citations, etc. — and the art of persuasion.  In reviewing Federal and Postal Disability Retirement applications which have been previously prepared, formulated and submitted by unrepresented Federal and Postal employees, which have been denied, it is often refreshing to see how laymen (i.e., “non-lawyers”) have utilized cases and case-law citations (often straight from some of my articles and blogs) in arguing his or her case. 

The problem with such an approach, however, is that the unrepresented Federal or Postal employee will often refer to such legal standards without engaging in the necessary art of persuasion.  Legal standards are certainly there to be used; however, there is a proper way and methodology of utilizing legal standards, and an improper way.  The improper way is to use the legal standard as a hammer — of stating:  X exists and states Y, therefore you must conclude Z.  The proper methodology in utilizing a legal standard is to engage in the art of persuasion:  X exists, and X determines why Y must come about, and therefore Z should be the logical conclusion, and here are the reasons why. 

Normally, I advise against non-lawyers using the law precisely because of the potential mis-application of the methodology.  Leave the law to lawyers; that is why lawyers are hired.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Meeting the Burden of Proof

The difference between “telling” and “showing” is a distinction which is often made in distinguishing between bad literary writing and good literature; such a distinction is applicable in practicing effective law, also.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to meet the burden of proof in order to show the Office of Personnel Management that one is entitled to Federal Disability Retirement benefits under FERS or CSRS.  To “meet the burden of proof” is to show, by a preponderance of the evidence, that one has met all of the legal criteria for such eligibility (e.g., that one has a medical condition; that the medical condition prevents one from performing one or more of the essential elements of one’s job; that certain identified elements of the job cannot be accommodated, etc.).  

The key is that one must “show”, and not merely tell, and that is where the distinction between effective and ineffective formulation of a Federal Disability Retirement application presents itself.  To merely assert that “X is a fact” and then to declare that the burden of proof has been met, is an ineffective methodology of formulating one’s argument.  On the other hand, to describe the factual underpinnings, then to further describe how the natural conclusion from such facts lead to the inescapable conclusion that a legal criteria has been met, is to provide for an effective argument.

The Office of Personnel Management is open to persuasion; it must merely be shown the way through descriptive analysis of the medical facts and conclusions which must be met, in meeting the legal burden of proof in a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Burden of Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS & CSRS, one is often asked (and should also ask of one’s self) the following question:  What does it take to be eligible?  What proof proves my case?  How much proof must I submit (quantity) and is the proof I submit sufficient (quality)?  All of these questions fall under a generic rubric in law, termed as “burden of proof“. 

Every legal process — and filing for Federal Disability Retirement benefits under FERS or CSRS is no different — applies a legal standard:  a set of criteria in determining whether or not a Federal or Postal Worker is eligible for — qualifies for — Federal Disability Retirement benefits under FERS or CSRS. 

In applying a statutory set of criteria, there is the general application of what constitutes, or meets the needs of, the evidence, documents, and proof that is submitted for review.  The overriding standard that is supposed to be applied for determining the process, is a standard of law called, “Preponderance of the evidence.”  It is a relatively low standard used in civil law — where, if the proof submitted shows that it is more likely so than not so, then one has met “by a preponderance of the evidence” that a Federal or Postal employee is entitled to Federal Disability Retirement benefits. 

Does this standard apply at the administrative level — at the Office of Personnel Management?  The answer is “Yes”, but not necessarily consciously.  One only effectively argues that the standard of proof has been met when one encounters a Judge — at the Merit Systems Protection Board.  But, nevertheless, OPM is supposed to follow “the law” and the burden of proof, and it is simply one more argument that one can, and should, make to the Office of Personnel Management when filing for Federal Disability Retirement benefits under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: OPM and the Law

The Office of Personnel Management is the agency which determines all applications for Federal Disability Retirement, whether under FERS or CSRS (or CSRS-Offset).  In making such a determination, a standard of “objectivity” is expected by each and every Federal and Postal employee, in making such a determination.  

The Office of Personnel Management (OPM) applies a set of criteria as determined by statute and further expanded upon by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  The entirety of “the Law” which governs and guides the eligibility and entitlement to Federal Disability Retirement benefits is thus based upon a patchwork of legal holdings, statutory language, and cases and legal opinions which have “evolved” over the years.  From this patchwork of laws, one expects a “representative” from OPM to apply it fairly, objectively, and without any arbitrariness or capricious intent.  Yet, since the individuals applying “the Law” at OPM — at least at the first and second “Stages” of the process — are not themselves lawyers, how realistic is this?  

Ultimately, legal arguments in persuading OPM to approve a case are best made when they are concurrently explained — explained in their logic, their force of argumentation, and in their applicability to a given issue.  Simply declaring that “the Law” applies will not do; one must sensitively guide OPM to understand the very laws which govern their behavior.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Office of Personnel Management

The Office of Personnel Management (OPM) , located in Washington, D.C., is the agency which makes the decision on all Federal Disability Retirement applications, whether under FERS, CSRS or CSRS-Offset.  They are the responsible agency for the first two “stages” of the process of attempting to show eligibility and entitlement to a Federal Disability Retirement annuity.  By “stages” is merely meant the initial application stage of the process, as well as the second, “Reconsideration” stage of the process — where a Federal or Postal employee has the right to, within 30 days of an initial denial of a Federal Disability Retirement application, request that his or her case be “reconsidered”, and further have the right to submit any additional medical or other supporting documentation for review and consideration. 

If the case is denied a second time by the Office of Personnel Management, then the Federal or Postal employee who has filed the Federal Disability Retirement application, or the attorney representing the Federal or Postal employee, has a right to file an appeal to the Merit Systems Protection Board.  The Office of Personnel Management is taking quite a long time in making a decision on a Federal Disability Retirement application, and although they are attempting to get caught up with their workload, the volume of cases filed and received by OPM on a weekly basis has made such an attempt difficult.  As has been stated by this author many times, Patience is a virtue, and as such, Federal and Postal employees must be the most virtuous of all, because patience is what is needed to endure and survive the process.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Further Clarifications

In order to prepare, formulate, file and qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must have a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job.  There are, of course, additional minimum eligibility requirements — such as the fact that one must have been a Federal employee for at least 18 months under FERS (and 5 years under CSRS — which is a moot point, obviously, because anyone who finds him/herself under CSRS already has the minimum 5 years), and further, that the medical condition must last for at least 12 months. 

The 12-month/1 year requirement often poses a puzzlement to Federal and Postal employees contemplating filing for Federal Disability Retirement benefits.  Often the question is asked whether a Federal or Postal employee must have been “out of work” for at least 1 year; or, just as often, the question of the 12 month length or duration of the medical condition will often be confused with the requirement that a Federal or Postal employee must file for Federal Disability Retirement benefits within 1 year of being “separated” from Federal Service.  Thus, the confusion often becomes coagulated to be interpreted as:  I must be separated from service and suffer from my medical condition for a year.  WRONG. 

Normally, a doctor can provide a “prognosis” when it comes to a medical condition — where the doctor “predicts”, within reasonable medical certainty, that a medical condition will last for a minimum of 12 months, 2-3 years, permanently, etc.  That is all that is required in order to meet the 12-month requirement.  One does not have to suffer for a year, or even for many months, in order to begin the process of preparing, formulating, and filing a Federal Disability Retirement application under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Periodic Clarifications

Clarifications are needed to be periodically made, based upon questions which Federal and Postal employees continue to ask.  There is often a confusion concerning the “one year” issue — whether it concerns the Statute of Limitations in filing a Federal Disability Retirement application under FERS or CSRS, or the length of time a medical condition must last. 

A Federal or Postal employee must file a Federal Disability Retirement application under FERS or CSRS within one (1) year of being separated from one’s Agency.  The confusion often arises because a Federal or Postal employee is unsure of whether or not such separation from service has actually occurred.  Especially for Postal employees, where the U.S. Postal service will often continue to keep a Postal employee “on the rolls” despite having been on OWCP for many years, the confusion can be understandable.  However, one indicator is that if a Postal employee is continuing to receive zero-balance pay stubs, then in all likelihood that Postal employee has not yet been separated from service, and the 1-year tolling of the Statute of Limitations has not yet begun. 

Because obtaining an approval from the Office of Personnel Management on a Federal Disability Retirement application can take an extraordinary amount of time, however, it is wise to begin the process sooner, rather than later, whether one has been “officially separated” from service or not.  For Federal employees, an SF 50 (Personnel Action) form would systematically be issued showing that a Federal employee has been separated from Federal Service

As for the 1-year issue concerning the extent of a medical condition, we will address that issue at another time.

Sincerely,

Robert R. McGill, Esquire