Federal Employee Medical Retirement: A Wrong Sense of Shame

Having a sense of shame can reveal a heightened level of moral superiority; but as with all things emanating from the Good, those who lack a sensitivity to propriety will take full advantage of a misguided loyalty to ethical conduct.  Work and a duty to one’s vocation is a guiding principle for most Federal and Postal employees.  That is precisely why filing for Federal Disability Retirement benefits, whether one is under FERS or CSRS, is anathema to the Federal and Postal employee.

The committed Federal and Postal employee often has a warped and misguided sense of his ethical duty to work, and will allow for a medical condition to continue to exacerbate and debilitate, at the expense of one’s deteriorating health, all for the sake of commitment, devotion, and high ethical sense of duty to one’s mission for the agency.

Supervisors and managers recognize this, and take full advantage. But the Federal and Postal employee must by necessity understand that Federal Disability Retirement is a benefit accorded to all Federal and Postal employees precisely for the underlying reasons offered: When a medical condition impacts one’s health such that one can no longer perform all of the essential elements of one’s job, the benefit of Federal Disability Retirement is meant to be accessed precisely because it has always been part of the benefits package for all Federal and Postal employees, whether under FERS or CSRS.

Commitment to a mission is indeed commendable; blind devotion at the expense of one’s own health is somewhat less so — unless one counts the sneering approval of agencies who see such sacrifices as mere paths to the slaughterhouse.

Sincerely,

Robert R. McGill, Esquire

 

Federal and Postal Disability Retirement: The Undisciplined Narrative

‘Discipline’ is a concept which is anathema to the American psyche; for, it is precisely the American character to have unfettered liberty, the ability to “be one’s self”; of self-expressive uniqueness, and to embrace the boldness of the American Dream, as represented by the vast expanse of the American Midwest.

We debate about the constructive use of discipline for our children; complain if the government attempts to discipline our spending habits; and question whether societal constraints should be imposed in our daily lives.  In writing, however, a measure of self-discipline is necessary, if only because the audience for whom one writes will necessarily veto our refusal to discipline one’s writing in a penultimate manner, if we do not:  by refusing to read it.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must discipline the writing of the Applicant’s Statement of Disability (Standard Form 3112D), in multiple respects:  in length; in providing historical background; in careful content selection; in answering the questions asked in a relevant and appropriate manner; in avoiding breaching certain taboo subjects which could defeat a Federal Disability Retirement application; in taking on the tone, tenor and texture of objectivity as opposed to pure emotional appeal, etc.

‘Discipline’ is a dirty word in the American lexicon; but in the preparation, formulation and filing of a Federal Disability Retirement application from OPM, it is a necessary clump of dirt which must be sifted, cleansed and appropriately dusted, in order to provide an effective narrative vehicle to have a Federal Disability Retirement application approved by OPM.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Explanations

Much of what constitutes a “proper” and “complete” Federal Disability Retirement application from the U.S. Office of Personnel Management, whether under FERS or CSRS, is discretionary in nature, and based upon experience in what has worked in the past, and what presently works.  

The law itself is never constant, precisely because the individual case-workers at the Office of Personnel Management are systematically replaced.  There are certain case-workers who tend to approach each Federal Disability Retirement application from a particularly narrow perspective, and view each case through that specific set of lens.  But for the individual Federal or Postal employee who has prepared, formulated and filed for Federal Disability Retirement benefits, he or she would never recognize any pattern of behavior from a case-worker at the Office of Personnel Management, precisely because this would be the singular, isolated event of encountering a particular case worker at OPM.  

One problem which Federal and Postal applicants for Federal Disability Retirement benefits have, is a tendency to over-explain a particular situation or issue.  Explanations are meant to be given for one central purpose — to clarify.  If an explanation further complicates and muddles an issue, then the explanation has failed.  Or, conversely, if the explanation brings up more questions than answers, then further explanations will not normally satisfy the OPM Case Worker.  Explaining an X should be condensed into simple components of y and z; otherwise, if an explanation further complicates the issue, perhaps it should be left alone until and unless there is a question which arises from the issue itself.  

Sometimes, discretion requires one to “let sleeping dogs alone”.  Don’t complicate an issue by over-explaining; better yet, keep it simple, and not offer an explanation unless called for.

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

Disability Retirement for Federal Workers: The Difficulty of Accommodation

For Federal and Postal employees filing for Federal Disability Retirement benefits under FERS or CSRS, the issue of accommodation must be addressed at some point, and one often wonders why a Federal agency is either unwilling or unable to accommodate the medical disabilities of a Federal or Postal employee.  

The line between “unwilling” and “unable” is often a complex one, because Agencies must contend with an obligation to attempt to accommodate the medical disability, but remember that such an attempt and obligation is merely one of “reasonable” accommodation.  This means that an implicit cost-benefits analysis is quickly engaged in, where the effort, likely success, extent of any workplace adjustments, whether in the end the essential and core elements of the job functions can be accomplished even with the reasonable accommodations, etc., can successfully be implemented.

An appearance of attempting to accommodate is often all that is indulged, and so the reality is that the Agency seems more unwilling than unable. Further, the simple fact is that, many medical conditions — e.g., those which are psychiatric in nature, are simply medical conditions which are termed “non-accommodatable“.  For, regardless of what workplace adjustments are made, a Federal or Postal worker suffering from Major Depression, anxiety, panic attacks, delusory thought processes, etc., where symptoms upon one’s focus, concentration, ability to have a reasoned perspective, etc., are all impacted, and therefore is inconsistent with any cognitive-intensive work.  As such, the medical condition becomes “inconsistent” with the particular duties of the job, and therefore it is an unreasonable and unattainable goal to consider any accommodations.  

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Years Later, Still On the Rolls of the Agency

The Postal Service is especially guilty of this, but many other Federal (non-Postal) agencies are also “negligent” on the issue of keeping an injured worker on the rolls for years on end.

Often, such “non-existent” Federal and Postal workers receive OWCP payments, or simply go on with their lives while unofficially still a Federal or Postal employee.  Never having been separated from Federal or Postal service, such individuals are still eligible for filing Federal Disability Retirement benefits under FERS or CSRS because the 1-year statute of limitations has not been violated.

So long as a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS within one year of being separated from service, you have met the statute of limitations.  If you were never officially separated from service, then your 1-year deadline never began.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Each Level of the Process

Disability retirement, as I have often written about, is a process.  Each stage of the process has certain “requirements” which should be met — by “requirements”, I mean that each stage of the process (the Initial Application Stage, the Reconsideration Stage, and the Third Stage of the Process, a Hearing before an Administrative Judge at the Merit Systems Protection Board) has certain aspects of proof, certain methods of approaching the level of satisfying the burden of proof, etc.  There are, of course, the further stages of Appeal — at the Full Review at the MSPB, and the Federal Circuit Court of Appeals — but these appellate stages deal only with whether or not the Administrative Judge applied “the law” properly or not.

Thus, at the first three stages of the process, there is the necessary requirement of “winning” by submitting the proper medical and other evidence, to persuade the Office of Personnel Management and the Administrative Judge that your Federal Disability Retirement application under FERS or CSRS meets the legal criteria for eligibility.  This is the season for Reconsiderations; the Office of Personnel Management will often make many of its decisions just before Christmas, and just before the end of the year.  If an applicant under FERS or CSRS gets denied at the Initial Stage, just make sure that you hire an attorney who knows what he or she is doing, and isn’t just a “general practice” lawyer who is as blind as the next person, and will merely be one blind person leading the blind.  Each Stage of the process requires a level of expertise to meet the “requirements” necessary to satisfy that particular level; just make sure that you will be led by an attorney who not only knows what those requirements are, but further, knows how to meet those requirements.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM May Say So, But… (Part 2)

Then, of course, there are the multiple “other” issues which the Office of Personnel Management “says so”, such as failure to pay the full amount of back-pay due; failure to compute the average of the highest-3 consecutive years correctly; reinstating the full amount of FERS once a person becomes no longer eligible for Social Security Disability benefits; arbitrarily and capriciously deciding that the medical report is not “good enough” in answering a post-disability approved, Medical Questionnaire; failing to compute the earned income in any given year properly, and thereby informing the disability retirement annuitant that he or she earned over the 80% limit of what the former federal employee’s former job currently pays; and a host of other issues.  My specialty is in obtaining disability retirement benefits for my clients; I only selectively get involved in post-disability annuity issues, but the point here is that the Office of Personnel Management has a track-record of being in error, in multiple ways, on multiple issues, in volumes of cases. 

It is thus important to recognize that the Office of Personnel Management is not an infallible agency.  Far, far from it, they are merely made up of people who are subject to error, but often stubbornly so — unless you counter their denial in an aggressive, but calm and rational manner.  If a denial comes your way, do not get distressed; prepare your case well, and lay out the groundwork necessary to win.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: How Many Should Be Listed (Part 2)?

The listing of the medical conditions in a Federal Disability Retirement application, as it is descriptively written on the Applicant’s Statement of Disability (SF 3112A) for FERS & CSRS disability retirement, to be submitted to the Office of Personnel Management, is a separate issue from the creative description of the symptoms which the applicant experiences as a result of the identified listing of the medical conditions.  Thus, a distinction should be made between the “official” diagnosed medical conditions (which should be limited in number, for reasons previously delineated) and the multiple and varied “symptoms” which result from the listed medical conditions.  Thus, while one may suffer from the medical condition termed as “Fibromyalgia”, the symptoms can be multiple:  chronic and diffuse pain; impact upon cognitive abilities, inability to focus and concentrate, symptoms which are often termed as “fibro-fog”, etc. 

When the Office of Personnel Management approves a Federal Disability Retirement application under FERS & CSRS and identifies the specific medical condition by which it is approved, it will identify the medical condition, and not the symptoms.  This distinction is important because, when an applicant prepares the narrative to show the Office of Personnel Management what he or she suffers from, the differentiation between conditions and symptoms is important to recognize when creatively and descriptively writing the narrative of one’s medical conditions.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire