CSRS & FERS Medical Disability Retirement: Some Basics

Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is an administrative process which one must undergo if a Federal or Postal employee is medically unable to perform one or more of the essential elements of one’s position.

It is a benefit which is accessible only if proven; and proof must meet the legal standard of “preponderance of the evidence“, through a tripartite methodology:  Evidence of the existence of a medical condition; the nexus of that medical condition impacting upon one’s ability/inability to perform the essential elements of one’s job; and that such a medical condition(s) cannot be legally accommodated by the agency such that the Federal or Postal employee can perform all of the essential elements of the Federal or Postal job.

While the Federal or Postal employee has up until one (1) year from the date of separation from Federal Service to file for Federal Disability Retirement benefits, the proof of when the nexus formed between one’s medical condition and the impact upon the position of one’s Federal Service, must have occurred during the Federal Service.

These are just some basics of Federal Disability Retirement law; the complexity, of course, resides in the details, and it is always the details which provide the fodder for an OPM denial.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Algorithms & Human Peculiarities

In maneuvering through the process of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there are potentially multiple stages that one may encounter:  The First Stage of the process — the initial filing; if denied, one has a right to have the denial “reconsidered” by filing a Request for Reconsideration within thirty (30) days of the denial; if denied by OPM a second time, then one has a right to file an appeal to the U.S. Merit Systems Protection Board, before an Administrative Judge.

There are, beyond the three stages identified, additional appellate stages of the process, including a Petition for Full Review before a 3-Judge panel of the MSPB, as well as an appeal to the Federal Circuit Court of Appeals.

At each stage of the process, the Federal Disability Retirement application is reviewed and evaluated for sufficiency of proof and satisfaction of the statutory criteria for eligibility; and, moreover, a different person looks at the application at each stage of the bureaucratic process.

Thus, there is no singular algorithm — no application of a computer model which is identical across the board — in the evaluation of one’s Federal Disability Retirement application.  Instead, a different person reviews and evaluates the Federal Disability Retirement application at each stage.  This is probably a positive approach, and one which would be deemed “fair” by any objective standard.  For, while an application of a standard algorithm may be deemed objectively impersonal and unbiased, whereas human beings, in their inherently fallible nature may indeed possess biases and inclinations; nevertheless, it is the peculiarities of human imperfections which are still the trusted traits for procedural determinations.

That is why there is such a hue and cry over the increasing use of video replays and electronic line judges in sports; for some reason, we still trust in the human perspective, as opposed to the cold hardware of computers.  Perhaps, in our collective childhoods, we all became paranoid from watching HAL 9000 in Kubrick’s 2001:  A Space Odyssey.  A shivering thought.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Time and Clarity

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, two primary elements must be shown:  A.  That one suffers from a medical condition such that the medical disability prevents one from performing one or more of the essential elements of one’s job, and B.  That the medical condition will last for a minimum of twelve (12) months.  This second part of the requirement — the 12 month period — can bring about some interesting issues.

Despite the simplicity of what it requests in terms of information, the issue is often confused and confusing.  Federal and Postal workers contemplating filing for Federal Disability Retirement benefits will often wonder whether one has to be “out of work” for a period of 12 months before even filing (somewhat similar to SSDI, where one must be out of work for a specified period of time) — but that is not what the statute requires.  What is required is merely that the medical condition must have a duration of at least 12 months, and so a prognosis should suffice — i.e., if the medical condition suffered has lasted for 5 months, say, and the doctor provides a prognosis that it will continue for a minimum of 2 – 3 more years, and perhaps permanently, that should satisfy the legal requirement of a medical condition lasting for a minimum of 12 months.

On the other hand, when the doctor states that it has lasted since X date and will be a “permanent” condition, that should also satisfy the legal requirement.  However, OPM will often fail to comprehend what “permanent” means, and will deny a case based upon the fact that the “12 month period” has not been met.

Further, the issue of “when” a medical condition began is an interesting one, because if one goes too far back, then that may show that despite the medical condition, the Federal or Postal employee has been able to perform the essential elements of one’s job.  The question is thus not one of “when the medical condition began”; rather, the question is one of “when did the medical condition prevent one from performing one or more of the essential elements of one’s job.”

Clarity is the key, always, and when one is dealing with Claims Specialists at the U.S. Office of Personnel Management who are reading multiple files day after day, and confusing and confounding one with the other, making certain that the medical reports, legal arguments and Applicant’s Statement of Disability are clearly and concisely delineated, will help to guide OPM to a proper and successful decision.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Criteria & Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a two-step process (at a minimum) must be engaged in when compiling the foundational presentation of a Federal Disability Retirement application.  

First, a thorough reading, comprehension and understanding of the “what” in reviewing the criteria applicable for eligibility and entitlement to a Federal Disability Retirement application:  What does it say?  What is required?  What type of evidence meets the requirements?  And sometimes just as importantly:  What has previously failed to meet the requirements?  

Thereafter, once the conceptual framework of grasping and understanding the “what” of the process, and proceeding to gather the information requested in preparing and formulating one’s Federal Disability Retirement application under FERS or CSRS, then the pre-filing conceptual stage of the second-order should be engaged in:  “Whether”.  

Whether what is gathered is sufficient to meet the legal criteria necessary to be eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS; whether it is either (or both) qualitatively and quantitatively sufficient to meet the legal criteria for eligibility.  The “whether” question is a much more universal one, in that it must encompass the full panoply and compendium of the evidence gathered.  Not that it cannot be supplemented at a later date (it can), although there are restrictions and limitations imposed by what is delineated on one’s Applicant’s Statement of Disability (SF 3112A).

Understanding the conceptual distinction between the “what” and the “whether” is an important mental exercise to undertake, if only on a superficial level of making one pause for a moment to consider whether the extensive effort one must endure will be worthwhile.  

It is better to take the necessary and sufficient time at the outset, than to find out after much effort has been expended, that both the “what” and the “whether” have been insufficient to meet the basic legal criteria for eligibility for Federal Disability Retirement benefits under FERS or CSRS from the Office of Personnel Management.

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

OPM Disability Retirement for Federal and Postal Employees: Causality

Hume’s exposition on causality is both interesting and instructive in terms of looking at the validity of an argument.  In this instance, we are obviously making an analogy with how the Office of Personnel Management, and to a larger degree, people in general who make a causal argument and declare that it is a ‘valid’ argument.  David Hume’s argument on causality essentially states that there is nothing in the world other than two independent events (which we merely deem as ’cause’ and ‘effect’), which we repetitively witness.  However, because there is no ‘meta-factor’ beyond the independent events, what he terms as a ‘necessary connection’, therefore there is no certainty beyond a repetition of events.  Thus, Hume argues that we actually never see anything ‘new’ — no ‘necessary connection’ between cause and effect, in the 100th time we observe an event, any more than the first time. 

This is, indeed, analogous to how the Office of Personnel Management views rendering a denial in a Federal Disability Retirement application under FERS or CSRS. Look at the lack of logical argumentation in an OPM denial.  It is a series of independent events, delineated and categorized in some semblance of chronological order (perhaps the order that the OPM Representative read the medical documentation):  Dr X says this; Dr. Y says that; then the effect:  “The medical evidence fails to meet the criteria for eligibility for Federal Disability Retirement.”  Like Hume’s description of the world, there lacks a ‘meta-factor’.  Whether the stated causes have any connection (see the analogy?  It is like Hume’s reference to “necessary connection”) to the “effect” is entirely irrelevant.  Events do not need to justify the decision.  It is acceptable to merely refer to medical documents and then come to a conclusion, without any need to justify the validity of an argument.  But, then, that seems to be how most people in the general population formulate an argument these days — based upon how one “feels”.

Sincerely,

Robert R. McGill, Esquire

OWCP & OPM Future Reviews

There are horror stories:  of people on “disability” who are watched and video-taped, and after having 500 hours of taping, it is edited to show that, within a 2-minute period, it is revealed that you can indeed perform physical feats which your medical disability should restrict.

As an attorney who receives daily inquiries concerning Federal Disability Retirement benefits under FERS & CSRS, people relate such fears to me.  However, I am quick to remind such callers on two (2) matters:  First, such stories relate almost exclusively to Federal OWCP cases, which have nothing to do with Federal Disability Retirement under FERS or CSRS, and Second, the people I represent have legitimate medical conditions which impact and prevent one from performing one or more of the essential elements of one’s job.

There is also an additional Third element in the issue, Federal Disability Retirement annuitants are allowed, under the law, to go out and get another job, and to work and make up to 80% of what his or her former position currently pays.

Now, obviously, any such job should be essentially different, in many ways, from the former job.  But the point is that the medical disability under FERS or CSRS is intimately wedded to a particular job, and the inability to perform the essential elements of that particular job.  That is where the difference lies between Federal Disability Retirement rules under FERS & CSRS and OWCP cases — the former allows one to continue to remain productive in the workplace; the other does not.

Sincerely,

Robert R. McGill, Esquire