Medical Retirement for Federal Workers: Filing in Time

All of the work which goes into preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS becomes a nullity unless the deadline for filing the application has been met.  

Remember the fundamental rule:  While there are certain restrictions on amending or adding to a Federal Disability Retirement application once it has been filed (i.e., one cannot add a new medical condition  beyond what has been stated in the Applicant’s Statement of Disability — but there is always some flexibility in arguing whether or not additional medical documentation which one later supplements merely expounds upon previously-identified medical conditions or symptoms, as opposed to “adding” a “new” medical condition), one cannot even begin to make an argument about a particular medical condition, its impact upon a particular job and ability to work at a job, etc., unless and until one has met the foundational statutory prerequisite of timely filing.  One is estopped from making any argument at all unless one first files, and files within one (1) year of being separated from Federal Service.  

Thus, remember the basic rule:  If the time is fast approaching, file first.  Further arguments may be made later, but one cannot make any arguments at all, unless the Federal or Postal worker files the Federal Disability Retirement application under FERS or CSRS in a timely manner.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Preparing the Case

As in everything in life, preparation is the key to a successful endeavor.  In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal or Postal employee under FERS or CSRS has the affirmative burden of proving by a preponderance of the evidence that one is eligible and entitled to Federal Disability Retirement benefits from the Office of Personnel Management.  

By “affirmative” is simply meant that it is not the responsibility of the Agency, the Office of Personnel Management, or any other bureaucracy to obtain and submit the necessary evidence, documentation or forms to meet the burden.  While it is true that the Agency must complete certain forms, it is still the responsibility of the Federal or Postal employee who is filing for Federal Disability Retirement to request their completion.  

Further, by “burden of proof” is meant that there is a certain set of legal criteria that the Federal or Postal applicant must meet in order to become qualified for Federal Disability Retirement benefits under FERS or CSRS.  Unlike Social Security, where the Agency itself will contact the doctors, set up medical reviews and consultative examinations with appointed doctors in order to establish the extent of one’s medical conditions, etc., under the legal criteria set up by the Office of Personnel Management, it is entirely up to the Federal or Postal employee to gather, obtain and submit the evidence to meet the burden of proof.  

That places a significant responsibility upon the potential applicant, and in order to meet that burden, it is well to take the time to prepare each and every aspect of a Federal Disability Retirement application, and not just blindly leave a form with a doctor, or anyone else, hoping for the best.  To prepare means time; expending the time at the forefront will often save time in the end.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Letting Go

In preparing, formulating and filing a Federal Disability Retirement under FERS or CSRS, it is often normal to have concurrent “cases” filed — an appeal to the Merit Systems Protection Board in response to an adverse action or termination by the Agency; an EEOC case proceeding against the Agency; and other judicial and quasi-judicial forums.

At some critical point, however, there comes a time when a decision must be made — a bifurcation, an “either/or”:  Either one wants to continue litigating to get one’s job back, or the preparation of the Federal Disability Retirement application under FERS or CSRS, as an admission that one is no longer able to perform one or more of the essential elements of one’s job, must proceed.  But not both.  

For the most part, concurrent judicial proceedings can continue without a conflict between the two.  Lawyers can talk out of both sides of the mouth, and beyond — sometimes out of three or four sides of the mouth.  It is well that an attorney’s mouth is circular and not triangular, thereby failing to restrict and contain how many sides there are.  

Given that, however, there often comes a time when a Federal or Postal employee cannot credibly state that the Agency had no right to terminate one’s employment, yet claim with the Office of Personnel Management that one can no longer perform one or more of the essential elements of one’s job.  

Indeed, as a practical matter, it is often a good negotiating point — of persuading the agency that the Federal or Postal employee will be willing to drop the adversarial proceedings in return for the Agency restating the basis of the removal, based upon one’s medical inability to perform the essential elements of one’s job.  Furthermore, it is often a pragmatic “health reason” — to let go of the adversarial proceedings, and allow for a Federal Disability Retirement application to get approved, so that one may begin the process of recuperating one’s health.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Syndrome of, “I Can’t Understand It”

In all aspects of life, both professional and personal, it is easy to get stuck in a rut where one cannot walk away from a particular irritant.  

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, one cannot afford to engage in the luxury of pausing for too long in attempting to understand the reasoning, rationale, or alleged justification for a denial of a Federal Disability Retirement application under FERS or CSRS, as issued by the Office of Personnel Management.  

It is easy to get caught up in attempting to “figure out” the foundational basis of an OPM denial.  One can get stuck in a self-pity mode of asserting to one’s self that everything had been carefully gathered; the medical documentation was impeccable and irrefutable; even the Agency supported the Federal Disability Retirement application by acknowledging and conceding the fact that (A) the Federal or Postal employee’s medical documentation was of a severity such that (B) it prevented him or her from performing one or more of the essential elements of one’s job.  

Yet, while listing each of the medical evidence and recognizing the extent of the symptomatologies, the prior surgeries, the medication regimens, etc. — despite all of that, the concluding sentence by the Office of Personnel Management states:  “We cannot determine by the evidence presented that you are disabled under the law,” or, “The medical evidence submitted is insufficient to meet the criteria for Federal Disability Retirement purposes.”  

What?  However, it is best to simply “move on”.  

It does little to no good to remain entrapped in the syndrome of, “I can’t understand it,” because that same syndrome inevitably leads to, “I am going to waste my time trying.”  Extract what can rationally be understood; present updated medical information; prepare the best and most compelling legal arguments, and prepare for the long haul of the legal administrative process.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Against Reason

One can put in all of the necessary and requisite effort into preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, obtain a comprehensive medical narrative report with supportive office and treatment notes, verifying MRIs and other diagnostic evidence, follow the informational guidelines from various research sources — and provide a compelling case based upon rational and reasoned argumentation — and still get a denial from the Office of Personnel Management.  

This happens often enough, and one must conclude that, even when a Federal Disability Retirement application is prepared with the utmost of care and effort, a decision of denial can be issued against reason, or the reasons provided are selectively chosen and manufactured.  It is therefore well to understand the entirety of a Federal Disability Retirement process as necessarily involving multiple stages, with internal checks and balances to ensure the “fairness” of the administrative procedure.

Thus, the first two stages of the process (the Initial Stage; then the Reconsideration Stage) are internally reviewed by the Office of Personnel Management.  The Third and Fourth Stage of the process (an appeal to the Merit Systems Protection Board; a Petition for Full Review) may be considered as “administrative judicial review” stages.  Then, an appeal to the U.S. Federal Circuit Court of Appeals.  

Each stage allows for a “check” upon the other stages of the process, and by imposing the right of the disability retirement applicant to access such “checks”, it allows for the “balance” of the process — thereby (hopefully) negating and nullifying what may have initially been an irrationally-based decision.  

As Western Culture has a history of recognizing the power of rationality, it is well that an institutionalized process of “checks and balances” attempts to supersede legal decisions which go against reason.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Cycle of Patience

It is a common element, now, in a Federal Disability Retirement case to require patience in surviving the bureaucratic process, and while recognizing the cycle of the process does not make it any easier, understanding the entirety of the process can help one to prepare.  

There is initially the preparatory process, which is almost exclusively within the purview of one’s control — of preparing and formulating the Applicant’s Statement of Disability (SF 3112A); of obtaining the proper medical narratives and documentation (although, here, the time frame is obviously dependent upon the availability of the treating doctor to prepare the narrative reports) and any introduction of legal argumentation in support of the Federal Disability Retirement packet, etc.

Then, submission to the Agency takes it partially out of the control of the individual Federal or Postal applicant — although, because of the obvious employment connection to the Agency, the Federal or Postal employee can often make phone calls or other contact to attempt to persuade the expediting of the secondary bureaucratic process.  

Once it leaves the Agency Human Resources Department, or the greater Civilian Personnel Office, then it is out of the hands and control of the Federal or Postal employee entirely, and must wind itself through the bureaucratic maze and morass of the National Finance Office and the Office of Personnel Management.  OPM, like any other agency, is subject to seasonal delays based upon Federal workers who take vacations and time off — Christmas, New Years, Easter, and Memorial Day weekend/week, and throughout the months of June, July and August.  A week’s delay in a Case Worker’s assigned cases can exponentially quantify the delay-time, because upon return of the worker, there are other administrative functions which must be attended to which further compounds the ability to take up where he or she left off.  

Patience is a virtue; as such, Federal and Postal Workers must be the most virtuous of human beings.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Benefit Needs No Apology

A Federal Disability Retirement annuity under FERS or CSRS allows one to receive an annuity because the Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job.  

Under FERS, while the Federal or Postal employee is required to apply for SSDI to determine if one is concurrently eligible for that benefit (and, if one is, to have an offset between SSDI and FERS), most Federal and Postal employees fail to qualify for SSDI precisely because he or she is not “totally disabled” (the general legal standard for SSDI eligibility), but merely unable to perform one or more of the essential elements of one’s particular Federal or Postal job.  

This allows for two consequential benefits which help both the society at large as well as the individual Federal or Postal employee:  It allows the individual to have the necessary time for recuperation and healing from one’s medical conditions, and further, it provides for the former Federal or Postal employee to seek other employment in the private sector, and be able to make up to 80% of what one’s former Federal or Postal position currently pays.

Thus, many Federal Disability Retirement annuitants go on to become employed, productive and tax-paying individuals, contributing to the very tax-base which pays for the Federal Disability Retirement annuity.  It is, in many ways, a “pay-as-you-go” system, and is self-sustaining precisely because it is not purely benefit-dependent, but has a great percentage of benefit-recipients actually paying back into the system.  

As a social policy, it is an inherently intelligent system, and requires no apologies for its intelligent design.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Work as the Causal Inception

In a claim filed with the Office of Workers’ Compensation Programs (OWCP), causality and whether it is work-related, occupationally related, etc., are issues which will inevitably arise, precisely because the statutory mandates which govern OWCP rules and regulations require proof of a causal connection.

Under Federal Disability Retirement for FERS & CSRS employees, however, such work-related causality is not an issue, because it is not a requirement that a medical condition was “caused” while performing one’s Federal or Postal job, or that there be some connection to an occupational hazard or inherent workplace relationship.  That does not mean, however, that there cannot be a workplace connection; merely that, whether or not there is any such relationship between the medical condition and the work environment, it is not an issue which possesses any significant relevance to the filing of a Federal Disability Retirement application.  

These “fine distinctions” can be confusing for non-lawyers (and, indeed, even for lawyers who are supposedly trained in being able to analytically dissect multiple compounding concepts within statutory language).  

“Causality” to the workplace can, however, be discussed and even referred to in a medical report, or in the Applicant’s Statement of Disability (Standard Form 3112A), as a provision for historical and background context, but it is not an essential element to prove in a Federal Disability Retirement application under FERS or CSRS.  Too much emphasis on the historical context, however, can lead to the unforeseen and dangerous consequence of having one’s case characterized as a “situational disability“, and one must always be cognizant of such a danger.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Discretionary Determinations

Reviewing medical documentation often involves a discretionary determination in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  Relevant documentation should be filed as an attachment in support of an OPM Disability Retirement application; sometimes, medical reports, notes and records which are from specialists or referral doctors, contain information which is helpful, irrelevant, or detrimental to an application, and determinations as to whether to file it or not is a matter of discretion.

It is the responsibility of the Federal or Postal employee to prove, by a preponderance of the evidence, that one is entitled and eligible for Federal Disability Retirement benefits under FERS or CSRS.  Meeting the criteria of eligibility is a matter of some latitude; determining what evidence to include involves a certain amount of discretion; in either case, one must affirmatively prove one’s case.

Thus, FMLA paperwork previously completed by the doctor may have addressed a particular issue for a specific timeframe; OWCP forms previously filled out by the doctor may pertain more to a particular time-period or for the issue of causation, etc.  In the totality of the picture of one’s history of medical conditions, one must utilize a discretionary sense of wisdom in determining which medical evidence will be helpful, and which may potentially hinder.  It is never an exact science; but then, science itself is no longer an exacting endeavor.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Office Notes

The Office of Personnel Management, in reviewing a Federal Disability Retirement application under either FERS or CSRS, will often request to see the doctor’s office/progress notes, detailing the history of treatment for the previous 18 months.

Such scrutiny of clinical notations made by the treating doctor is meant to verify and validate the statements made by the doctor in his or her medical narrative report, to see if there are internal contradictions between the clinical notes and the narrative report prepared for purposes of obtaining Federal Disability Retirement benefits.  Such a review of clinical notes can be an unfair process, precisely because they are being reviewed with a paradigmatic purpose in mind:  to “find” any inherently contradictory remarks or evidence which conflicts with statements made in the primary medical report.  

Thus, reviewing the medical notes in a vacuum, outside of the context of the entirety of treatment, and with the intention and motive of seeking out any “discrepancies”, will sometimes result in a denial based upon selective interpretation of the office/progress notes.  Statements such as, “medications are helping”, “patient notes feeling better”, “Is sleeping much better”, can provide a false picture of the actual progress of the Federal Disability Retirement applicant.  Indeed, such a skewed picture will often come up in the denial letter issued by the Office of Personnel Management, where the denial letter will selectively quote from the progress notes.

This reminds one of a particular case where the Office of Personnel Management quoted from clinical notes, statements made by the applicant:  “Feeling much better”; “Making great progress”; “overall doing very well.”  The problem, however, is that the applicant was permanently in a wheelchair, and the job was that of a Law Enforcement Officer.  It was denied at the Initial Stage; at Reconsideration, when the pertinent facts were pointed out to OPM, it was quickly approved.

Sincerely,

Robert R. McGill, Esquire