Disability Retirement for Federal Workers: Trying to Act “As If”…

One can act as if a mistake was not made; the problem exists, however, and continues to impact, with the assumption that X did happen, despite one’s best attempts at ignoring the occurrence.

Thus, when the question is posed to the undersigned attorney whether it would be “okay” to try and file for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management, on one’s own, and if it is denied, to then seek the assistance of an attorney, the short answer is, “Of course”.  The silent “but” and qualifier is never necessarily posed or queried.

The caveat is a simple one:  While most mistakes are correctable, there is one thing which cannot be done:  one cannot put blinders on OPM for what they have already received and reviewed.  We cannot play “as if” OPM did not review that specific document which implied a situational disability; or the one which characterized a medical condition as one which “waxes and wanes“; or referred to certain elements in terms of possibilities and potentialities; and other such equivocating conceptual paradigms.

The world of OPM, Medical Disability Retirement, Federal employment issues, etc., does not allow for the playing of the “as if” game.  Thus, to the question of going at a Federal Disability Retirement application alone, yes, we can play as if the Federal or Postal employee will do everything properly; but when the consequences come back with a negative result, we cannot then play as if we are back at the starting gates of the race; we have already entered into the fray, and must deal with the facts as they now exist.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: The Mistakes People Make

The greatest mistake of all is to “assume” X or to “presume” Y; and this is not uncommon, precisely because the wording of the Standard Forms as presented on SF 3112A (Applicant’s Statement of Disability), which is the central basis upon which a Federal Disability Retirement application is formulated (both for FERS as well as for CSRS employees), makes it appear as if obtaining an approval from the U.S. Office of Personnel Management is merely a pro forma activity.  

And, indeed, many have informed the undersigned attorney that Human Resources’ personnel at various agencies will understate the scrutiny which OPM will apply in reviewing and evaluating a Federal Disability Retirement application.  

The problem with H.R. Personnel dismissing the arduous and meticulously scrutinizing administrative process as applied by the U.S. Office of Personnel Management, is that such underestimation is barely acknowledged when a denial is received from OPM on a Federal Disability Retirement case.  All of a sudden, the Human Resources personnel put up their hands and state, “It’s not our responsibility”, when all along they had been insisting as to the ease of the process.

No, it is true — it is not the ultimate responsibility of the Agency or its Human Resources Department.  Yes, it is also true that any application for a Federal Disability Retirement is the responsibility of the individual applicant.  As such, because responsibility falls squarely (why, by the way, is it “squarely“, as opposed to “triangularly” or “circularly”?) upon the Federal or Postal Worker, it behooves one to take the entire process seriously, and to invest the proper time, attention, and expenses needed, to do it right “the first time”.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: How and What

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, “how” one states something is often just as important as the “what” one says.

The latter is relevant for obvious reasons:  the subject of the statement is the “identifier” for purposes of directing the reader (in this case, the person who is handling your Federal Disability Retirement benefit application at the U.S. Office of Personnel Management) to focus upon a particular matter; but just as importantly, “how” it is said — i.e., the tone, tenor and context of the “what”.

How a medical report is stated will often determine the success of a Federal Disability Retirement application, more than what is expected to be said.  For, from the perspective of the Office of Personnel Management, the generic “what” (the subject matter of the application) will almost always contain the obvious:  that there is a medical condition; that the medical condition prevents one from performing one or more of the essential elements of one’s job; that the Federal or Postal worker will make statements and claims of an inability to perform certain key elements of one’s job because of one’s medical conditions, etc.

On the other hand, how it is stated:  Is it persuasive?  Does the doctor follow from a reasonable explanation to an unequivocal conclusion?  Is the doctor convincing?  While the “what” of a Federal Disability Retirement application, whether under FERS or CSRS, may be a necessary condition of a Federal Disability Retirement application, it may not be sufficient; sufficiency may be determined by how a Federal Disability Retirement application is prepared, formulated, and ultimately filed.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Tidbits

The term itself is an interesting one; for, unlike its corollary, it refers to the “choice” or “pleasing” morsel of food, as opposed to “leftovers” or “crumbs”, which imply food which has either been rejected or left behind after the table sitter has made the prime decision.  “Tidbits” in its secondary meaning, of course, implies information; the conceptual applicability has transferred from one within the exclusive context of foods, to include information, facts, statements, etc.

Thus, a tidbit:  In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, it is important to understand and recognize that, while most mistakes in the preparation and filing of a Federal Disability Retirement application are “correctable” (what an ugly word — both in appearance and in phonetic structure), what one cannot do is to put “blinders” on the eyes of OPM or before an Administrative Judge, once certain information has been submitted to OPM.

Thus, if an individual wants to attempt the First Stage of the administrative process of filing for Federal Disability Retirement on his or her own, without the assistance of an OPM Disability Attorney, thinking that it is an “easy” case, that is all well and good, but while the tools of representation for an attorney include use of the malleability of language, such that “linguistic gymnastics” will be engaged in as the primary sport of the attorney; nevertheless, elasticity of language does have its limits.

Facts, once exposed, can be explained and amended, but the essence of the fact or statement remains in the hands of OPM.  This constitutes and comprises the tidbit of the day; a choice and pleasing morsel?  Perhaps not in consequential substance, but hopefully in terms of informational relevance.  Ah, but to have been offered instead a morsel of apple pie!

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: When a Mistake is Made

Mistakes made in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, are usually correctable, and for a number of reasons:  most mistakes merely require additional clarifications; some “mistakes” are only apparently so, but substantively valid otherwise; and ancillary mistakes of an innocuous nature can reflect the inconsistencies of reality, as opposed to a direct contradiction between two or more persons.

While blinders cannot be placed upon the Case Worker at the Office of Personnel Management once a Federal Disability Retirement application has been submitted, nor does it usually require such drastic measures.

The question to be asked, of course, is whether or not the alleged “mistake” should be addressed, to what extent, and how prominently?  For, the old Shakespearean adage that “thou protesteth too much” can apply in a Federal Disability Retirement application, where too much emphasis upon a particular issue can unduly magnify the issue itself, as opposed to dealing with the issue in a passing manner.

Thus, a statement made in the Applicant’s Statement of Disability, or by a treating doctor, which indicates an undermining of meeting the legal criteria of eligibility in a Federal Disability Retirement application, should probably be addressed.

A direct statement made in a Supervisor’s Statement may or may not be relevant.  Often, such statements are merely opinions meant to undermine a Federal Disability Retirement application, but whether it is worth addressing is a discretionary issue.  The real issue concerning discrepancies or mistakes have to do with who is making it into a loud noise; and the one who makes the loudest noise, is often the one who attracts the greatest attention.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Coordinate the Supporting Documentation

An Applicant’s Statement of Disability in a Federal Disability Retirement application under FERS or CSRS must always attempt to coordinate the statement with the supporting medical (and other) documentation, taking care that the statement does not undermine the supporting documentation, and conversely, to deliberately and with purposeful intent to make sure that the supporting documentation does just that — “supports” and complements what the Statement of Disability states.  Thus, the Statement of Disability must find a careful balance between overwhelming the supporting documentation and undermining the supporting documentation.  It must do neither; it must, instead, strike the middle ground, allowing for the supporting documentation to provide the focal emphasis of the substance and content of the claims inherent in the Statement of Disability, and at the same time, must validate the Statement of Disability.  In this way, an applicant’s Statement of Disability in an OPM Disability Retirement application under FERS or CSRS conveys the validity of a submission.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Necessary Doctor

Ultimately, the doctor who is necessary is the one who will be supportive.  Whenever the question is asked of me whether it is “necessary” to have the support of this or that doctor, my answer is generic in nature:  It is better to have one excellent narrative report in support of one’s Disability Retirement Application, than to have 5 mediocre or lukewarm reports.  Excellence in a Federal Disability Retirement application is encapsulated by the level of passion and support by the treating doctor.  The character and texture of a medical report is not just a set of factual listings of medical conditions and a dry statement of an opinion; rather, the underlying sense of a doctor’s firm and passionate belief in a patient is often evident in the intangible underpinnings of a good report.  There are simply some reports written by a doctor where one knows that it is improbable that the Office of Personnel Management will want to entangle themselves in; the unequivocal voice, tone and tenor of such a report can make the difference between getting an initial approval of an Application for Federal Disability Retirement under FERS or CSRS, or a denial, resulting in the necessity of going to another stage of the process.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Learning from Experience

The problems inherent in filing a Federal Disability Retirement application under FERS or CSRS are multi-fold and multi-tiered.  Even today, after years and years of practicing in this particular area of law, there is rarely a day which goes by that I haven’t learned something new — whether a slight wrinkle in opm disability law; whether in a nuance of a description of a particular medical condition; or in simply how a doctor has described a specific condition and its particular and unique impact upon a patient.  Experience comes from making mistakes; mistakes can be human, technical, or a combination of both.

Unfortunately, for the Federal or Postal worker who is filing, or contemplating filing, for Federal Disability Retirement benefits under FERS or CSRS, the process itself is essentially a “one-time” endeavor.  Yes, a person can theoretically file, then refile at a later time (side-stepping the issue of res judicata, which can, in most instances, be gotten around); but for the most part, a Federal or Postal employee who is filing for Federal Disability Retirement benefits is doing it once, and only once.

As such, it is NOT the time to obtain “experience” — i.e., there is little room for “learning” from “mistakes”.

There is “good experience” and “bad experience”, but both are experiences nonetheless.  In filing an application for Federal Disability Retirement benefits under FERS or CSRS, however, it is the former which needs to be experienced, and not the latter, and in such a filing process, there is indeed a difference between the two.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretionary Judgments

There are many things in the long process of getting a FERS Disability Retirement application approved, which are purely “discretionary”, based upon one’s experience, sense of a case, an ear to listening to a client, and based upon a compendium of factors, facts and circumstances, to come up with the “best” decision on a particular issue.  A person who tries to go through the process alone, without the ear, mind, experience or judgment of an attorney who knows the process governing Federal Disability Retirement under FERS, has to make such discretionary decisions without the benefit of past experiences. 

Such decisions can range from small issues of:  how and when a treating doctor should be approached in the request for a medical narrative; how much guidance the doctor would need or want in preparing a medical narrative report; when and how to inform the agency of the pending decision to file for Federal Disability Retirement benefits, etc.; to the larger decisions, such as which medical conditions and reports to include in the final packet to be submitted to the Office of Personnel Management; and many other such discretionary decisions.  Yet, when grouped together, the complex interactions of the multiple “discretionary judgments” can often make or break a case.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Summer Doldrums & the Physician’s Statement

I have often pointed out in past blogs and articles that I do not have my clients sign the Physicians Statement (SF 3112C), for multiple and various reasons, not the least of which is that it is a confusing form, and in smaller print than necessary, leaving the impression to the doctor that what is requested is far more complex than what is actually required.  In its place, for my clients, I write a 4 – 5 page letter outlining the type of medical narrative report which I need.  This is the summer months; everyone from OPM representatives to lawyers, to doctors and Federal and Postal employees, take time off to recover from the hard work throughout the rest of the year.  When doctors take off for some “summer fun”, it just means that they have less time to spend on administrative matters — such as writing up a medical narrative report for their patients.  Because of this, it is important to try and simplify the matter as much as possible, and a blanket submission of the SF 3112C without some explanatory guidance, is not the best course of action.  Doctors need guidance, and in this busy world, it is best to streamline the process for them as much as possible.

Sincerely,

Robert R. McGill