Federal Disability Retirement: Proof

This is a proof-based process.  It is not merely a matter of completing some forms and meeting procedural guidelines in order to obtain a benefit; rather, it is an administrative process in which evidence and documentary support from third parties must be obtained in order to meet the legal criteria imposed by statute, regulation, and ever-evolving case-laws as handed down by the Administrative Judges of the U.S. Merit Systems Protection Board, as well as the U.S. Court of Appeals for the Federal Circuit.

There are administrative processes which are “entitlements”, such as certain economic assistance programs, Social Security, Medicare, etc., where one has paid into a system, and upon reaching a certain age, or meeting income-qualification criteria, etc., such procedural guidelines are merely shown, met, and approved.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, however, it is not merely a matter of meeting procedural criteria (although that, too, is required), but moreover, one must prove by a preponderance of the evidence that one is eligible, by submission of substantial and adequate documentation that one cannot perform, because of a medical condition, one or more of the essential elements of one’s Federal or Postal job.

Proof is the lynchpin by which the standard of winning a Federal Disability Retirement case is won or lost.  Proof is a “must”.  As such, never consider filing for Federal Disability Retirement benefits as merely a matter of filling out paperwork; one must prove one’s case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Confronting the Change

The transition from being a Federal or Postal employee to one of a disability retirement annuitant will inevitably spawn questions — not only concerning the process itself, but the impact, response, reaction and collateral events with which an Agency will engage the Federal or Postal employee.

The process itself can never be entered into, or participated in, within a vacuum.  Preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is a complex decision, and one which involves so many facets — impact upon one’s economic circumstances; the transition to a different career or vocation; the severing of ties to coworkers and supervisors; a change in the way one lives one’s life, etc.

Thus, it is not merely a matter of filing paperwork; it is not just a recognition that one has a medical condition such that you cannot any longer perform all of the essential elements of one’s job, although that is also a large part of it.  Rather, it involves the emotion, mental, and physical toil and turmoil of “change”.  And, indeed, change itself is a stress; change of any sort means an end of something, and a beginning of something else.

It is often that “something else” — the unknown of the future, which represents and greatest fear and challenge.  But the question one is left with is often:  What choices and alternatives do I have?  Once that question is asked, the road through Federal Disability Retirement often takes an easier path.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: An Inherently Adversarial Process

One often hears about administrative procedures — that they are somehow distinguishable from court cases, EEOC proceedings, grievances, etc., in that they are “non-adversarial” procedures.  Really?  In designating it as such, one becomes lulled into thinking that, somehow, preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is merely a matter of completing and submitting paperwork.

In a society which enjoys the safety of linguistic euphemisms, however, such an approach to an important application for benefits can result in devastating consequences.

Does a bureaucracy which is set up exclusively to review and potentially deny a Federal Disability Retirement application have the appearance of a non-adversarial process? Does the fact that one has a right to appeal it to the U.S. Merit Systems Protection Board, then to a panel of Administrative Judges for a “Full Review”, then to the U.S. Court of Appeals for the Federal Circuit, possess the scent of non-adversity?

A system which is set up with a specified statute of limitations, which employs procedural and substantive legal criteria set up to deal with appeals and submission of evidence; of a body of law which applies to determine the sufficiency of evidence; such a system is inherently adversarial in nature, and whatever words or string of words one might use to describe such a system, it is first and foremost, an adversarial process.

Treat it as such, or enter into its arena with caution and forewarning.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Moving beyond the Stagnant Waters of OWCP

“Is it possible…” is an impossible question to answer.  For, the conceptual distinction between that which is possible, as opposed to probable, is one which reveals the chasm between the world of fantasy and one of reality.  The world of the “possible” is unconstrained and unbounded; the world of probable occurrences may be fenced in by statistical constructs, actual circumstances, and real-world experiences.

While it is possible to stay on OWCP for a long duration, it is also probable that OWCP will cut off one’s benefits at some future, undetermined and unexpected time.  Thus, for the Federal or Postal employee who is on, has been on, or even is contemplating filing for, OWCP/FECA benefits because of a work-related injury, the benefit itself is attractive enough to remain on the rolls of OWCP until such time as (A) the Federal or Postal employee can return back to work, (B) the Federal or Postal Worker is deemed recovered, and the OWCP benefits are cut off, or (C) the Federal or Postal Worker decides to “move on” in life.

The first two choices are essentially out of the arena of “control” of the Federal or Postal employee, for one cannot determine or expedite the recovery period of a medical condition, and further, only the doctor (or its surrogate, the Office of Worker’s Compensation Programs) can determine whether or not the Federal or Postal work is now recovered.  As for the last choice, however, it is the Federal or Postal worker who can make the determination — especially if one has already gotten an approval from the U.S. Office of Personnel Management on one’s Federal Disability Retirement application.

OWCP is not a retirement system; one cannot work at another job while on OWCP; one must sit and do what the OWCP case worker tells you to do.  It is only with Federal Disability Retirement benefits, whether under FERS or CSRS, that one can actually engage in another, alternative vocation or career, and begin to move on in life, and become released from the stagnant waters of a constraining medical condition — or that of OWCP.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Deception of Being on OWCP

“But I am on OWCP,” the caller insists.  “But that wasn’t the question.  The question is, are you still on the rolls of the agency?”  “But OWCP has been paying me for the last 2 years and…”

The deceptiveness of being on OWCP and receiving payment from Worker’s Comp results in a feeling of security and lulls one into a sense of comfort.  But receiving OWCP/FECA benefits does not mean that one cannot be separated from Federal Service.  Indeed, many people continue to remain on OWCP rolls, receive the non-taxable benefit, and believe that, because they are on OWCP, this somehow means that they have not be separated from Federal Service.  Beware.  Be aware.  While on OWCP, if the agency moves to separate you, that means that you have one (1) year from the date of separation to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Being “on” the rolls of OWCP does not stop, prevent, or otherwise interfere with the agency’s determination or right to separate the Federal or Postal employee in order to fill that position.  Then, of course, once a person is separated, and over a year passes, one can no longer file for Federal Disability Retirement benefits, whether under FERS or CSRS, if over a year passes by, because under the law (what is called the “Statute of Limitations“), a Federal or Postal employee must file for Federal Disability Retirement benefits within one (1) year of being separated from Federal Service.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: How One Perceives a Case

How one views a case often determines the approach which is undertaken.  Thus, if the belief is that preparing, formulating and filing for Federal Disability Retirement benefits is merely a simple administrative process which requires the compilation of the medical documentation, answering some questions and filling out some forms, then such a belief will determine the extent of preparation of a Federal Disability Retirement application.

The other side of the perspective, however, is held by the U.S. Office of Personnel Management.  OPM views every Federal Disability Retirement application based upon a multitude of criteria:  legal sufficiency; consistency of statement-to-evidence; weight of medical documentation; analytical comparison to what the agency states; a review of the composite of forms, documents and statements made, etc.

Is OPM’s approach an adversarial one?  One often hears that such administrative and bureaucratic processes are “non-adversarial” in nature, but what exactly does that mean?  If the perspective of the Office of Personnel Management is to apply a legal criteria in order to determine the legal sufficiency of a Federal Disability Retirement application, doesn’t that make it into an adversarial process?

Euphemisms are invaluable tools in the utilization of language as a means of communication; but words ultimately must have a static meaning — at least for the duration of the sentence to be uttered.  That being the case, one must conclude that how one perceives a case should be based upon the meaning of language used in describing the case; and the meaning is quite clear in preparing, formulating, filing, and awaiting a decision of a Federal Disability Retirement application from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Position Description

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, it is important to have a good idea of what the position description states — the one which the Federal or Postal applicant occupies, and the one which is reflected in the SF 50 or the PS Form 50, the personnel action form which designates and identifies the official position assigned to the Federal or Postal employee.  For, what the Federal or Postal employee does in a job, in real time and in the actual state of the job, may be significantly different from what is described in the position description itself.

One must understand that the U.S. Office of Personnel Management (OPM) — the agency which makes all determinations on Federal Disability Retirement applications — does not have an agent sitting in one’s office, taking notes on the duties which one performs.  Thus, the case worker at OPM who receives and reviews the Federal Disability Retirement application, will come to be informed of the essential duties of a Federal or Postal employee, based upon a “paper presentation” that is set before him or her.

The comparison to be made between the medical condition proven and the essential elements of one’s job, will arise from OPM’s review of what is presented — the position description itself; the statement of one’s job in the Applicant’s Statement of Disability; and other documentation.

In making the comparison, it is ultimately from the position description itself from which one is retired, and if the applicant’s statement includes superfluous assertions otherwise not contained in the position description itself, the discrepancy may well go against the Federal or Postal employee who is filing for Federal Disability Retirement benefits.  Fortunately, most position descriptions are fairly generic in nature, and one can imply a variety of duties which are not otherwise specified in an official position description.  That is where creative writing and effective presentation comes into play.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Collateral Work Issues

There is often, and inevitably (it would appear), collateral work issues which appear in parallel form, along with the impact of a medical condition upon a Federal or Postal worker.  Such issues can take multiple and varied forms — from actions on the part of the Federal or Postal employee which impact upon the performance of the job itself; to behavioral issues at work; to issues concerning actions by the Federal or Postal employee outside of the workplace, but which leads to legal issues which are brought to the attention of the agency.  Whether such collateral issues directly influence or have a peripheral reverberation upon a Federal Disability Retirement application is anyone’s guess.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, however, it is best to assume that (A) the Office of Personnel Management will know, or will somehow find out, about the collateral issues, via being informed by the agency or through some non-pertinent document which mentions or otherwise touches upon the issue, and (B) that OPM will use it as a basis for an argument that there was an underlying motive for filing for Federal Disability Retirement benefits, aside from the medical issue itself.

There are ways to counter such selective attempts by OPM to use a collateral issue to defeat a Federal Disability Retirement application, and it is best to have both a paper-trail as well as a clear time-line of events, to show that the collateral issue existed in a parallel, but separate, universe than the central issue of one’s medical condition.  OPM searches to defeat; it is the job of the Federal or Postal employee to rebut the search, and to destroy the effort in order to force the issue, and obtain an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Impact of Collateral Problems & Advice

The problem with not being guided in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is that there are multiple collateral, and often unexpected, issues which come up in the course of preparing and filing for the eventuality, which may or may not impact the central issue of Federal Disability Retirement.

Whether a particular agency’s offer of an given action impacting one’s job can be used by the Office of Personnel Management in denying a Federal Disability Retirement application; whether a particular issue is relevant, significant, or of sufficient applicability to warrant immediate attention or a response, can only be determined by having a handle on the larger context of issues.

Much of disability retirement law and the issues which appear to intersect with the legal criteria for eligibility, are discretionary in nature; some have no impact at all; still others, have sufficient impact and possible reverberations such that they should be addressed in a legally appropriate and sufficient manner.  But the greater issue is whether the Federal or Postal employee should simply operate in the dark and hope that such seemingly collateral issues will not come back to haunt one at a later time.  That is the bliss of ignorance; unfortunately, that which one does not know, can indeed come back to hurt one.

Sincerely,

Robert R. McGill, Esquire