Medical Retirement for Federal Workers: The Guiding Sense of Direction

Global Positioning Systems are widely relied upon these days.  In conversations, there is never anymore an effort to recollect, whether of an old movie, a struggling synonym, or a name on the “tip of the tongue’ — for one only needs to whip out the smart phone, do a quick search, and the delicious exertion of an extended discourse greets the cessation of social interaction with silence. But one’s hand-held GPS merely gets the individual from point A to point B; it does not provide a wider perspective of one’s place in the greater world.

In the old days, the social interaction of spreading out a map before taking an extended trip was a requirement, unless of course one wanted to foolishly brave the winding roads of unfamiliar territory with the declared intention of undertaking an adventure of sorts. It was the mental exercise of figuring out the confusing grid system, of marking and remembering various routes, which taught one about the smallness of one’s being within the greater context of the world.

And in a similar vein, the pleasure of struggling to remember the name of something once known, but now locked in fuzzy storages in the dusty bookshelves of past memories, is now replaced by expediency and wasted efforts. Making decisions of important issues is somewhat akin to using a GPS or searching for information on the internet.

For Federal and Postal employees who suffer from a medical condition, such that the medical condition impacts one’s capacity to perform the essential elements of one’s job, filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether one is under FERS or CSRS, is a decision somewhat akin to using a GPS or searching on the internet.

For, in the end, it is not just a matter of traveling to a different point from one’s departure-point; it is important to have a wider perspective on all of the legal issues involved, the impact for future courses of decision-making, and the proper deciphering of the complex grid which characterizes a Federal Disability Retirement application. One can always push a button and go through the motions; or, one can have a deeper understanding by expending a little more effort in any given endeavor.

Filing for Federal Disability Retirement benefits is too important an avenue to undertake, to leave it to chance, or to declare that it is an adventure of sorts. It is likely necessary that one may have to resort to figuring out the complex grid of the administrative process, and in most cases, that will require the guidance of a map greater than a simple directional device.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Targeted Use of Collateral Evidence

Case-law from the U.S. Merit Systems Protection Board, as well as judicial opinions rendered by the U.S. Court of Appeals for the Federal Circuit, maintain the standard of acceptable proof for a Federal Disability Retirement case submitted to the U.S. Office of Personnel Management, for Federal and Postal employees under either FERS or CSRS.

The primary basis for a Federal Disability Retirement application is clear:  A medical condition which exists, which prevents the Federal or Postal employee from performing at least one, if not more, of the essential elements of one’s job; that a legally viable accommodation is not possible; that reassignment to another position at the same pay or grade is not reasonably feasible; that the medical condition will last a minimum of 12 months; and that the Federal or Postal employee must file for such benefits during the tenure of one’s employment as a Federal or Postal Employee, or within 1 year of being separated from Federal employment.

The core of one’s proof is generally based upon the treatment and opinion of one’s treating doctor.

Every now and again, however, there are “collateral” sources of proof which should be considered, and for various reasons, which must be relied upon for establishment of one’s eligibility for Federal Disability Retirement benefits.  Such proof may include: opinions rendered by Second-opinion or “referee” doctors in an OWCP case; percentage ratings provided by the Department of Veterans Affairs; SSDI approval determinations; separation from the Agency based upon one’s medical inability to perform the essential elements of one’s job; medical notes for FMLA; and even (sometimes, but rarely) a decision granting disability benefits by a private insurer; and other such collateral sources of proof.

Such proof, of course, should never replace the centrality of one’s own treating doctor, and further, should always be targeted and submitted with discretionary judgment.  Sometimes, it can be the “other evidence” which makes the difference in a case; other times, if used indiscriminately, can be an indicator of the weakness of one’s case.

Be careful; be targeted; use discretion.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Relying on Common Sense

The problem of relying on “common sense” (as that term is often used and understood) is that such reliance not only reflects a presumption that one possesses that very quality that we deem and recognize as “common sense”, but further, that we assume that we have such sense to realize one possesses it, and additionally, that the person to whom such sense is applied also has it.

In preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, it is indeed an arbitrary delegation and assignment of one’s case, that the Case Worker would possess that very quality in the process of evaluating, analyzing and reviewing the Federal Disability Retirement application.

Instead, what normally happens is that the OPM Case Worker mechanically applies a sheet containing the “7-part Legal Criteria” and determines whether or not a Federal Disability Retirement application satisfies each of the criteria.  But much of Federal Disability Retirement has to do with subtle implications and “reading between the lines” of a medical report, and coming to a “common sense” conclusion by extrapolating and actually analyzing the connection between one’s positional duties and one’s medical conditions, and determining whether or not an inconsistency exists.

Further, when the Bracey decision concerning the concept of “Accommodations” is considered, the issue of inconsistency between a Federal or Postal position and the medical condition can be viewed in a proper light and context, with greater clarity.  But to rely upon common sense — both in one’s self, and in someone else — is a dangerous assumption:  one which proves the old adage about making a donkey out of you and me.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: A Federal Issue

For many legal issues which are encountered by most people, an attorney from the state within which he or she resides is necessary and proper.  This is because the laws of each state are different, and requires the expertise of an attorney who is licensed to practice law within that particular jurisdiction.

However, preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management is a Federal issue, not a state issue.  As such, as an attorney who is licensed from one state, that attorney is able and allowed to represent Federal and Postal workers from all across the United States.  

Being “able to and allowed”, of course, is a separate issue from whether a particular attorney is competent, knowledgeable, and experienced enough to perform such work — but those are questions and issues which should be reviewed, determined and inquired into, by each Federal and Postal worker who is seeking an attorney who purports to be an “expert” in the area of Federal Disability Retirement law.  

Such a basis for determination of an attorney’s competency in any area of law should be based upon multiple criteria, including:  Questions asked and answered during an initial consultation; review of any articles written on the subject; information gathered on the attorney’s website — especially the substantive content of any claims made, or any discussion concerning the subject of Federal Disability Retirement law — and a general sense of responsiveness to an initial query.  

Because preparing, formulating and filing a Federal Disability Retirement application is a “Federal” issue and not a state issue, it is likely that the Federal or Postal worker will never personally meet the attorney in a Federal Disability Retirement case, and instead, all communication and contact will be by telephone, email, fax, overnight delivery, etc.  This would be a natural occurrence — just as you will never actually see anyone from the Office of Personnel Management or from the Merit Systems Protection Board.  

Remember, preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management is a Federal issue, and not a state one, and therefore the attorney who is licensed in a particular state can effectively represent anyone, anywhere, both in the United States, and in other countries.

Sincerely,

Robert R. McGill, Attorney

FERS & CSRS Disability Retirement for Federal and USPS Workers: Discretion

Discretion” is little used term and concept in the world we live in.  Instead, the focus is always upon one’s “right” to speak about anything, to expose everything, to assert one’s demands, etc.  But the conceptual applicability of the term should not be ignored in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS —  one must be “discrete” as to which issues to include in such an application.  

By “discretion” is not meant to imply any attempt to hide or obfuscate an issue; rather, because Federal Disability Retirement is an administrative process with its own inherent rules and laws, there is a containment of the types of issues which one should stick to.  For example, one should minimize and stay away, as much as possible, from such issues as “workplace harassment”, “hostile work environment“, “employee harassment”, etc.  Such issues might be relevant in an EEOC case, but potentially detrimental to a Federal Disability Retirement application under FERS or CSRS.

There are Federal and Postal employees, however, who will insist that such issues “need to be brought up” in order to “expose” such injustice.  But everything has a proper time, place, and jurisdictional forum.  Discretion is always a relevant concept — but to recognize that discretion is a necessity in and of itself requires discretionary judgment; something that is sorely lacking in this day and age.

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