FERS & CSRS Disability Retirement for Federal and USPS Workers: Beyond the Approval Letter

There are many stories of Federal and Postal employees who suffer from physical, emotional and cognitive (psychiatric as well as progressively deteriorating neurological disorders) medical conditions, who continue to endure within the confines of a Federal or Postal job, for years and years.  

Federal Disability Retirement allows for a Federal or Postal employee who has a minimum of 18 months of Federal Service under FERS (5 years under CSRS, which is already a safe assumption that such minimum eligibility requirements have already been met for CSRS employees) to continue to be productive as an employed member of the workforce — but in a different capacity.

Each story is a unique one —  filled with a narrative of human suffering, of enduring pain, hostility, and often discriminatory actions by the Agency.  The attorney who represents the Federal or Postal employee, however, has a specific and unique role.  He or she is not the Federal or Postal employee’s friend, therapist, doctor or financial advisor.  Instead, the attorney’s job should retain a singular focus — to obtain the Federal Disability Retirement benefits for the applicant who is seeking such benefits.  For, after all, it is only upon the satisfaction of the foundational basics that a Federal or Postal employee can then “move on” and go beyond the impact of a medical condition — to recuperate; to start a second career; to repair the physical, emotional and psychiatric impact of the past year or more; and to begin rebuilding after experiencing the jubilation of an approval letter from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: “It May Sound Good”

There is the statutory legal criteria which is mandated by law, by case-law, and by regulatory dictum as to the proper application of review in making a determination on a Federal Disability Retirement application, whether under FERS or CSRS.  Yet, the question is whether or not the Office of Personnel Management has applied the proper legal criteria in making its determination, and the answer to such a question can only be evaluated based upon the language which is utilized by OPM in its denial letter. 

An approval letter issued by the Office of Personnel Management is entirely unrevealing, precisely because it is simply a template letter advising the approved Federal Disability Retirement annuitant of the next steps to follow.  However, when a denial letter is issued by the Office of Personnel Management, often the Claims Representative will insert language which “sounds good” and proper, and even convincing — but ultimately, wrong as far as the proper application of the law is concerned.  For example, OPM may assert with unequivocal brevity that there lacks “compelling medical evidence” in the Federal Disability Retirement application.  “Compelling” is not a legal criteria required by statute, case-law, or regulatory dictum.  As such, it is a meaningless word-usage.

Moreover, it is harmful to a case because it means that OPM applied a standard of review which is nowhere found in any statute.  Further, it gives an appearance of authenticity and authoritative credibility where none exists.  What to do about it?  It needs to be addressed and pointed out — but diplomatically.  Diplomacy is nothing more than a forceful rebuttal clothed in the finery of courtesy, but it is a necessary ingredient in establishing the proper tone and tenor of a response to OPM.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Statutory Violations

As with most bureaucracies, the Office of Personnel Management is first and foremost established and guided by statutory mandate.  However, there is a distinction to be made between the establishment of a particular agency, and the mission and substantive enforcement of the mission as mandated by statute.  

Often, in its very decision-making process of reviewing, evaluating and deciding upon a Federal Disability Retirement application (whether under FERS or CSRS), it is important to recognize that if a decision is made erroneously, it does not imply or infer a statutory violation.  The statute is open to various interpretations, and such openness lends itself to a wide array of discretionary decision-making.  Complaining or fuming about whether or not OPM violated its statutory mandate is an act of futility; the process itself provides for a paradigm of “checks and balances”  — of having the Merit Systems Protection Board and an Administrative Judge look at a case and hold a Hearing on a case “de novo” — meaning, “anew” or “starting fresh”.  

Further, if one believes that the MSPB Hearing and Administrative Judge rendered a wrong decision, there is the further step in the process of a Petition for Full Review, or an appeal to the Federal Circuit Court for review of any error of law made in the decision-making process.  However, the best course of action if one is still before the Office of Personnel Management, or about to present one’s case at the Hearing Stage of the MSPB, is to focus upon the substance of one’s case, and not upon whether or not OPM or anyone else violated its statutory mandate.  

Save your energy and choose your battles; moreover, it is important to keep a singular focus upon the proper goal — of obtaining one’s Federal Disability Retirement annuity.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Medical Conditions & OPM

Clearly, there are certain medical conditions which the Office of Personnel Management “dislikes” or has a negative, suspicious view towards, in a Federal Disability Retirement application under FERS or CSRS.  One may attempt to rationally comprehend the innate bias towards certain groupings of medical conditions, but to do so would expend energy which, ultimately, results in an act of futility.

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, nowhere in the statute which provides for Federal Disability Retirement benefits is there notification or indication of a distinction between medical conditions.  As such, any pattern of hostility towards a particular medical condition, or a “type” of medical condition, must have evolved over time.  

The peculiar thing, of course, is the consistency in which all of the Claims Representatives at OPM have developed — of a similar pattern of reaction and behavior towards the “undesirable” medical conditions, as if they all work from a single template and have discussed, in conspiratorial hushed tones, a concerted effort to deny certain cases which are primarily based upon X medical conditions.  

That all said — and put aside as a note of interest but ultimately irrelevant — the way to rebut and overcome the inherent bias towards such medical conditions is to systematically reinforce the statutory requirements for eligibility, by explaining to the treating doctor(s) what is needed in order to overcome such bias.  Ignorance of the law is one thing; misapplication of the law is another.  Both must be overcome by guiding the treating doctor in how to meet the legal criteria, no matter what the medical condition.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Approach

In the busy lives we lead, it is often a temptation to simply adopt a generic approach to each event, for purposes of ease and convenience.  It is easy to think that most distinctions in life do not contain relevant differences — at least not enough to make much of an impact.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is certainly useful to utilize the paradigm of successful past filings, and there is enough information “out there” by multiple attorneys and “specialists” (whatever that may mean) to gather a composite model of a Federal Disability Retirement application which has a good chance of becoming approved.

However, one must always remember that each individual case is unique because of the multiple factors which must interact, and the uniqueness of the approach must match and be tailored to the distinctions which are inherent in each case.  Not only are the medical conditions different; the job description, the essential elements of a job, the symptoms which manifest themselves; whether the Federal Disability Retirement application should be based upon a single medical condition or a combination of multiple conditions; whether psychiatric conditions are primary or secondary; the intersecting impact between the medical conditions and the essential duties of one’s job; and, beyond all of this, if a Federal Disability Retirement application is denied at the First Stage of the process, or even at the Reconsideration Stage, the methodology and approach of responding to such a denial is important.  

Generic approaches are sometimes useful, but in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to recognize that most distinctions do in fact make a difference.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The MSPB & the Window of Opportunity

At the Merit Systems Protection Board, there are multiple critical points of opportunity in which to convince, persuade and otherwise have a discussion with the Office of Personnel Management (OPM) to reverse their earlier denial of a Federal Disability Retirement application.

Remember, however, that this is the arena and playground of lawyers.  While an applicant who has meandered through the intricate administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, can certainly survive the administrative procedures as circumscribed by the Merit Systems Protection Board, it is a good idea to have legal representation– obviously, from the very beginning; if not, then to represent one’s interests in rebutting an initial denial at the Reconsideration Stage; if not (again), then to have proper representation before the Merit Systems Protection Board (MSPB).

Whether at a Preliminary Conference to discuss the forthcoming issues, or at a Prehearing Conference — or, in preparing and filing a Prehearing Statement as ordered by the Administrative Judge at the MSPB — opportunities arise for the Federal or Postal worker to submit additional medical evidence which can potentially persuade OPM’s representative to reverse the two previous decisions of denial.  Such opportunities must be carefully embraced.  Yet, often, a Federal or Postal employee who is unrepresented at the MSPB is unaware of the opportunities which arise, at which points, in what circumstances, and the Administrative Judge is bound by duty and position to remain neutral.  Then, of course, there is the Hearing at the MSPB, in the event that OPM does not reverse.  Whatever the circumstances of the Federal or Postal employee who is or will be filing for Federal Disability Retirement benefits under FERS or CSRS, an advocate to represent the Federal or Postal employee’s interests is paramount. Don’t “go it alone”; for, to do so will often only lengthen the process.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Meeting the Statutory Minimum

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal or Postal employee must prove, by a preponderance of the evidence (that burden of proof which is fairly minimal in the order of difficulty, requiring that a Federal or Postal employee show that he or she is “more likely than not” entitled to Federal Disability Retirement benefits under FERS or CSRS) that the compilation of the evidence meets the statutory requirements such that one is eligible and entitled to Federal Disability Retirement benefits.  

Thus, it is the cumulative set of evidence which is reviewed by the Office of Personnel Management, and not merely a single piece of evidence.  Yet, the manner and methodology of how OPM reviews the evidence is revealed in any given denial letter issued by the claims representative, or the “Legal and Administrative Specialist” assigned to any particular case.  

It is a methodology of (A)  listing whatever medical evidence which was submitted by naming the doctors, thereby giving an appearance of a full and thorough review of the documents, and (B) selectively extrapolating statements made by the Applicant, the Supervisor, the doctor(s) and anyone else in attempting to undermine the conclusion that the statutory criteria for eligibility has been met.  In laymen’s terms, this is called, “Taking potshots” at something.  If meeting the criteria for eligibility is to show a sequence of connecting dots from point A to point B, then OPM’s view is that if there are enough potshots which sever the line between the points, then OPM has shown that a Federal or Postal employee is ineligible for Federal Disability Retirement benefits.  

This is the approach; it is up to the applicant who is preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS to ensure that any weak links in the line are sufficiently reinforced.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Paper Presentation

As with most things in life, it is helpful to understand the “context” of an event, an occurrence or a process.  In the context of preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to understand that this is essentially a “paper presentation” to an agency which processes thousands of such similar applications, assigned to a person who has a name and (if you are lucky) a voice over the telephone.  

Unless it it denied twice (first at the Initial Stage of the Process, then at the “Reconsideration Stage” of the process), there will be very little direct interaction between the OPM Representative assigned to evaluating and determining a Federal or Postal worker’s Federal Disability Retirement application) and the Applicant.  Even at the Merit Systems Protection Board, the “human interaction” will be limited over the telephone.  

Thus, the underlying “context” of a Federal Disability Retirement application is a “Paper Presentation” of a case.  This is not a criticism of the process — indeed, if one stops and reflects upon it, it may be the fairest methodology of undertaking such a process, precisely because it excludes the possibility of favoritism, of bias in favor of personalities or persuasive personal appearance and presentation.

Instead, it is presented to the determiner of the Federal Disability Retirement application based upon the “cold facts” as described and delineated on paper.  Thus, a certain sense of “objectivity” is arrived at because of the very limitations imposed by a paper presentation.  Understanding this contextual foundation is useful and helpful in making sure that the efforts expended should be focused upon acquiring the best evidence in order to formulate such a paper presentation — to include making sure that the presentation itself is professional, crisp, streamlined, and not filled with a lot of superfluous niceties.  

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Looming Government Shutdown

Whether or not there comes to fruition the possibility of a government “shutdown”, partial, and to what extent, etc., the underlying reverberations result in the anxiety it causes to thousands of Federal and Postal workers, both Federal Disability Retirement annuitants and to the applicants who are awaiting a decision from the Office of Personnel Management.  

Those who are receiving an annuity will likely be unaffected, for the wheels of bureaucracy should continue to issue the annuity checks and electronic deposits.  Those awaiting a decision from the Office of Personnel Management will likely experience a longer wait — a wait on top of the already unbearable timeframe which the Office of Personnel Management is subjecting the applicants of a Federal Disability Retirement.  

Ultimately, it is a preposterous situation where those who are blameless in the matter (the hardworking Federal and Postal employees under FERS or CSRS) will be the very ones who will be subjected to the consequences of looming budget crisis. Certainly, the current budgetary growth trend is unsustainable (that is not an arguable point); but annuitants of a Federal Disability Retirement under either FERS or CSRS do not appreciably contribute to the budget deficit.  Many go on to other jobs and careers and pay taxes, precisely because Federal Disability Retirement allows for a Federal or Postal worker to go out and earn another income from another job.  However, as with so many events in life, it is those who are least responsible who must bear the brunt of a crisis.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Agency Collateral Actions

Often, in the preceding years before preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there is a “history” of events between an Agency and the Federal or Postal employee.  Life doesn’t happen in a vacuum, and such a trite adage is certainly true for the Federal and Postal employee.  

Whether in the form of an EEOC complaint or a response to an adverse action which promulgates an appeal to the Merit Systems Protection Board, or multiple other legal forums and responses, actions, etc., there may be a settlement of the issue, and the settlement of such collateral issues may involve a provision concerning Federal Disability Retirement.  

If in fact there is a reference concerning Federal Disability Retirement by the Agency as part of a “global settlement” of collateral issues, it is important to make sure that there is enough specificity in the language to make it worth one’s while to have the provision inserted in a settlement agreement to begin with.  Thus, a generic statement such as, “Agency endeavors to assist the employee in filing for Federal Disability Retirement” would not be very helpful, precisely because the term “assist” can be interpreted in multiple ways, and normally the way that an Agency will interpret the term will not in the least be helpful to the Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS.  Language is a tool which must be used carefully; the effectiveness of language, as with any tool, depends upon the competence of the user.

Sincerely,

Robert R. McGill, Esquire