Federal Disability Retirement Representation: Substance and Process

In any bureaucratic, lengthy administrative process, one can become embroiled in the procedural aspects of an endeavor, and overlook the substantive elements which form the foundation of any case.  Conversely, one can make the mistake of approaching a case and declare to one’s self, “This is so obviously a good case,” and take shortcuts in the process of putting together an effective and persuasive case.

Either approach is one fraught with grave errors, and for Federal employees and Postal workers who are beginning the process of preparing, formulating and filing for Federal Disability Medical benefits, first through one’s own agency (if still on the rolls of the Federal agency or the U.S. Postal Service or, if separated, for not more than 31 days), and ultimately submitted to the U.S. Office of Personnel Management in Boyers, Pennsylvania (directly, if the Federal employee or U.S. Postal worker has been separated from Federal service for more than 31 days), it is important to keep the balance between the substance of a case, and the process of the case.

Substantive issues involve everything from the factual, informational content required on all standard forms (SF 3107, along with Schedules A, B & C, and the required attachment of one’s DD 214 showing prior active military service; SF 2801 for CSRS employees; and the substantive content of the description of one’s medical conditions to be considered, as required in SF 3112A, etc.), as well as the medical documentation needed to provide the evidentiary support for one’s case.

“Process” issues involve the timeframe in filing a case, the administrative procedures of where the disability application must be submitted through, as well as the myriad of sequential steps required for satisfaction of accommodation issues with one’s agency.

Substance and process — they are the necessary sides of a single, inseparable currency of an administrative reality known as Federal OPM Disability Retirement, and both must be attended to in order to reach the heights of efficacy mandated for a successful outcome in the preparation, formulation and submission of an OPM Medical Retirement application.

Sincerely,

Robert R. McGill, Esquire

 

Beginning the Federal Disability Retirement Process

The Chinese proverb, “The journey of a thousand miles begins with a single step”, is meant to remind us that looking at a process in its entirety can result in self-defeat even before starting, and every daunting journey must begin with the small, almost insignificant, effort of initiation.

Facing a bureaucracy and an administrative process can feel like that metaphorical journey of a thousand miles.  The multiple and complex standard forms to complete; the legal criteria to meet; the need to gather, compile and consolidate the medical documentation into a linear, coherent whole; and all of this, in the face of voluntarily reducing one’s income by applying for an annuity and having to deal with the debilitating medical condition from which one suffers.

But the successful way to approach the entire administrative process known as Federal Disability Retirement, is to bifurcate it into workable portions. The SF 3107 series (reissued in May, 2014, where previous editions are now outdated) is merely informational in nature.  It is is the SF 3112 series of forms which one must take care in preparing and formulating, and especially SF 3112A, which requests for detailed information concerning one’s medical conditions, the impact of the medical conditions upon one’s ability to perform the essential elements of one’s job; and other pertinent information needed to convey compliance with a legal criteria established through many years via legal opinions issued by the U.S. Merit Systems Protection Board, as well as by the U.S. Court of Appeals for the Federal Circuit.

Yes, it is a difficult process, and one which can be eased by legal advice and expertise. But as with all journeys, to look upon the landscape and obstacles as mere hindrances to overcome, will serve one better, than to stand at the foothills and refuse to begin the journey at all.

Sincerely,

Robert R. McGill, Esquire

Misnomers and the OPM’s Disability, Reconsideration & Appeals Division

The problem with misnomers is not just the inaccuracy of designation which is either explicitly or implicitly conveyed, but the unintended consequences of the string of reactions and responses which can occur as a result thereof.  Sometimes, interpretive mistakes occur purely on a subjective basis; in which case it is not truly a case of a misnomer, but rather merely the misunderstanding by the recipient of the information.  Other times, a word or designation can be open to multiple meanings, where reasonable people can differ on the inferences to be made.

For Federal and Postal employees who have filed for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether the Federal or Postal Service employee is under FERS or CSRS (such acronyms have specific, esoteric meanings only to Federal or Postal employees, and as such, cannot constitute an objective misnomer, but rather a potentially subjective one), the complexity of the administrative and bureaucratic process can result in the failure to recognize and properly respond to various misnomers throughout the process.

For example, when a Federal Disability Retirement case is assigned to an Administrative Specialist at the U.S. Office of Personnel Management, and one receives a letter informing the Federal or Postal Disability Retirement applicant that X is further needed — the identification of the OPM Representative that he or she is from the “Disability, Reconsideration & Appeals Division” is both confusing and a misnomer.

For, the recipient of the letter (and just to receive any correspondence from OPM other than an approval letter or a denial letter is an amazing fact in and of itself) can well infer from the designation that his or her Federal Disability Retirement application has already been denied without notification (i.e., because it is in the “Reconsideration & Appeals Division”). In fact, all cases fall under the aegis of “Disability, Reconsideration & Appeals” section of the U.S. Office of Personnel Management.

Misnomers may be unintended. It is the recipient and the responder who must, unfortunately, live with the consequences.

Sincerely,

Robert R. McGill, Esquire

 

Federal & Postal Employee Medical Retirement: The Intersection of Interests

Throughout one’s life, most Americans have minimal contact with governmental bureaucracies and agencies, except to comply with Selective Service requirements, join the military, file tax returns, claim Social Security benefits in older age, etc. Such encounters are often considered bothersome, and many grumble and complain about the intrusive nature of such dealings. What is often not perceived, of course, is the vast amount of indirect statutory and administrative requirements placed upon private entities, which then shift burdens upon the private citizen, unbeknownst to the person entering the store, bank, etc.

For the Federal and Postal Worker, however, the daily bureaucratic encounters are part of one’s life. The Federal and Postal employee is part of that administrative process which impacts the private sector of the economy; they are, in essence, the “insiders” who make the mechanisms of government tick. As such, the Federal and Postal Worker often has little idea how the “private” individual views such inner workings, until he or she becomes just like the “outsider” and encounters a Federal bureaucracy in the same shoes as the private individual.

When the Federal or Postal employee finds it necessary to prepare, formulate and file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, such a clash and intersection of interests suddenly takes on a new perspective. In one fell swoop, the Federal and Postal employee filing for Federal Disability Retirement benefits becomes both an “insider” as well as an “outsider” — the former, because he or she is still part of the Federal agency or Postal Service; the latter, because such dealings must ultimately be with an independent agency identified as the U.S. Office of Personnel Management.

Such intersection of interests often becomes befuddling; for, no longer is the encounter embracing the administrative and bureaucratic work to which one is accustomed; rather, it is to stand in line like other private citizens to file a claim for benefits.

Such a state of being, for the Federal and Postal Worker, can be likened to the deceased individual caught in Purgatory; and, indeed, perhaps some sins unknown and not atoned for, have been placed upon such Federal and Postal employees to have to encounter OPM in such a state. Whatever the reasons, such an encounter can be just as much of an eye-opener to the Federal and Postal employee, as a private citizen who encounters the complex bureaucracy of the Federal government for the first time in his or her life.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: Waiting until the Very End

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is never a good idea to wait until the very end to obtain an attorney who specializes in Federal Disability Retirement issues.  By “the very end”, of course, is a relative term — it can mean the U.S. Court of Appeals for the Federal Circuit, or a Petition for Full Review (PFR) before a 3-Judge panel of the Merit Systems Protection Board (upon an appeal to the Merit Systems Protection Board, after a denial at the initial application stage before the Office of Personnel Management, then a denial at the Reconsideration Stage before OPM), or the hearing stage itself at the Merit Systems Protection Board.  The “very end” equates to “it is almost too late”.  Another relative concept is the term involving “almost”, as in “almost too late”.  

A recent reversal of a case was by a former Federal employee who attempted all of the initial stages on his own — the initial application stage with the Office of Personnel Management, then the Reconsideration Stage — then went to a Hearing at the Merit Systems Protection Board without an attorney.  This particular Federal employee then came to the undersigned attorney and asked if it could be reversed by an appeal to the 3-Judge panel at the Full Review Stage of the Merit Systems Protection Board.  As pointed out in an earlier blog, there were enough judicial/legal errors committed by the Administrative Judge to justify a Petition for Full Review, and indeed, the outcome was a positive one — fortunately, for the Petitioner/Appellant/Applicant.  However, it is always best not to wait until it is too late.  That is another relative concept — “too late”.  

Hope springs eternal, but such hope has an end in every administrative appeal process, and unless one begins to build the bridge properly from the very beginning, block by block, legal precedent by legal precedent, there is the danger that a collapse will ensue.  It is best to prepare well at the beginning of a process, lest the lack of preparation result in an irreversible tide of mistakes, mishaps, and misfortunes at the end of a long and arduous attempt.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Decisions

One would like to think that the Office of Personnel Management takes each case independently, reviews each case according to the merit of that particular case, and that, based upon a fair, independent and careful evaluation process, a decision is made for an approval or disapproval.  When a decision from OPM reaches a Federal Disability Retirement applicant under FERS or CSRS, that applicant will see such a decision, and that decision alone.  When an attorney who specializes in OPM Disability Retirement sees such a decision, it is clearly based upon a template, and after viewing thousands of such template-based decisions, a pattern begins to develop. 

Templates are not in and of themselves a negative thing; one need not “reinvent the wheel” each and every time.  It is only when a template does not “fit” a particular case, or where it is clear that a decision contradicts the substantive content of the disability retirement application or the documentary attachments, that there is any negative issue with a template.  Fortunately, most OPM decisions are fair and properly evaluative; every now and then, however, it is evident that a template-driven decision has been issued without thought or fair analysis.  That is when a true problem has arisen.

Sincerely,

Robert R. McGill, Esquire