FERS & CSRS Disability Retirement: When to Get an Attorney

As I explain to all potential clients, whether an individual should attempt to obtain Federal Disability Retirement benefits with or without an attorney, is an individual and personal decision, based upon a number of factors.

I place everyone on a spectrum:  on the far left side of the spectrum is a Letter Carrier who becomes paralyzed.  That person does not need me as an attorney. He/she needs to gather the medical records, fill out the forms, and submit the application.  On the far right side of the spectrum is a Supervisor who goes out on “stress leave”.  That person should almost definitely hire an attorney, because disability retirement based upon the medical condition of stress alone, is difficult to obtain. Most Federal and Postal employees fall somewhere in-between those two extremes.  Further, and obviously, I believe that I am of assistance to my clients, and (hopefully), based upon the years of feedback I have received, my clients firmly believe that my legal methodology and approach were instrumental in obtaining disability retirement benefits for them.

Two further things to consider:  First, I rarely accept cases where an individual has filed the application, gotten it rejected, filed for reconsideration, gotten it rejected, and then went to the Merit Systems Protection Board where the Judge upheld OPM’s decision to deny the application:  when an individual has gone through all three Stages, and asks me to file a Petition for Review, I will normally not take on such a case.  I will, of course, consider being hired to re-file the case (assuming that the person has not been separated from service for over a year); but I cannot take on a case for a Petition for Review and further appeal when I have not been the one instrumental throughout the first three stages of the process.  Second, many individuals come to me with barely 30 days left to file.  I take on such “emergency cases” on a case-by-case basis, depending upon my time-allowance, my schedule, etc.

The Lesson:  Each individual must make the decision as to whether or not to hire an attorney, which attorney to hire, when to hire.  From my perspective:  Federal Disability Retirement is, when all is said and done, a process to secure the financial future and stability of one’s life.  As such, hire an attorney who specializes in Federal and Postal disability retirement, and hire one early on in the process.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Symptoms Versus Diagnosis

If disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level. For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over. However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’. From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both. Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement, the medical documentation, the legal memorandum of the attorney, etc. Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire

Merit Systems Protection Board: Hearings Are Not Inevitable

The third step in the process of filing and obtaining disability retirement from the Office of Personnel Management is to appeal the case to the Merit Systems Protection Board. This is initiated after a disability retirement application has been denied twice: First, at the initial stage, then, upon a request for reconsideration and an opportunity to submit additional medical and other documentation, if the Office of Personnel Management denies the application a second time, then the Applicant has the right to file an appeal with the Merit Systems Protection Board.

Such a case is then set to be heard by an Administrative Judge, and mandated to be completed within 120 days from the time it is appealed. Many applicants who go into this third stage have the unwarranted belief that a Hearing is an inevitability, and that there is no further opportunity to convince OPM to reverse themselves, or change their minds. That is simply not the case. Often, the OPM representative at the MSPB level is much more attuned to the evidentiary level required, and will entertain the receipt and review of an updated medical report, or additional diagnostic tests, or more detailed treatment notes, etc. The mere fact that OPM denied the application at the first two stages, and the fact that the jurisdictional landscape has now changed from OPM to the MSPB, does not mean that OPM’s mind cannot be changed. The key is to listen carefully at what OPM’s representative is saying at a Prehearing Conference, or even earlier if contact is made with him/her. By listening and complying with a reasonable request, it can save the applicant needless time and expenses (for the testimony of a doctor can, indeed, be expensive), and have the ultimate outcome that the applicant desires: approval of a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Connecting the Dots

Care at every step of the way in preparing an OPM disability retirement application is the key to winning. The metaphorical “dots” that need to be created and connected, will ensure that each aspect of a disability retirement claim is not seen as independent entities, but a part of a larger whole.

When an individual is unrepresented, there is a tendency in filling out the multiple forms that each form is a separate piece of information. That is an incorrect approach to take. What results from such an approach is why certain cases end up at the Merit Systems Protection Board, where the Board has to figure out whether they can accept a medical condition that the applicant failed to list or identify in the original application; or whether the connection to an essential job element was properly made.

While it is true that the Board engages in “de novo” consideration of a disability retirement eligibility issue, their jurisdiction is nevertheless limited by the substantive conditions which are identified in the original application. Thus, for instance, in writing up the Applicant’s Statement of Disability, it is wise to coordinate it by reviewing the medical documentation; when writing up the impact of the medical condition upon the essential elements of one’s job, it is wise to concurrently review one’s official job description. While preparing a Federal Disability Retirement application in a disjointed, independent approach, you are in danger of missing an essential dot; by seeing the inter-dependency of each part of the application, you stand a greater chance of not having to go before the MSPB to test whether they can even listen to your case. Disability retirement applications must be approached in this “wholistic” methodology; that is ultimately the “winning” approach, where all of the dots have been connected.

Sincerely,

Robert R. McGill, Esquire