OPM Disability Retirement: The Merit Systems Protection Board

An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Further Thoughts on Reasonable Accommodation by the Agency

The problem with Agency efforts to provide an employee with reasonable accommodations is that such attempts are too often than not, neither “reasonable” nor legally viable accommodations.  Let’s remember that a legally viable “accommodation” is that act, allowance, or modification, which allows the employee to continue to perform and complete the core or essential elements of one’s position.  Further, Federal and Postal employees need to understand that there is nothing inherently wrong with an Agency providing an accommodation that is neither legally viable (for Federal disability retirement purposes) nor “reasonable”.

Let me explain.  Let’s say that an employee works for the Postal Service.  He or she gets injured, and let’s even assume that it is a valid OWCP Department of Labor claim.  At some point, because OWCP/DOL is NOT a retirement system, they will often “create” a “modified position” and make a modified, or light-duty job offer.  It could be as extreme as sitting in a corner and answering the telephone.  Now, if the individual gets the same pay, there is nothing inherently wrong with such a modified job offer.  However, at the same time, you need to remember that accepting such a modified job offer does not preclude the employee from filing for, and getting approved, an application for Federal Disability Retirement.  This is because the modified (or “light duty”) job offer is not a real, previously-vacant position, and therefore is neither “reasonable” nor truly an accommodation under federal disability retirement laws.  Nevertheless, there was nothing wrong with the Agency making up such a “modified job” and offering it to the employee.  This is true of all Agencies in the Federal Government, across the Board, from FAA Air Traffic Controllers who have lost their medical clearances, to IT Specialists who have lost their security clearances, to executive level administrators:  modified duties, and “make-up” positions, while remaining in the same position, does not mean that there is anything inherently wrong with the modified job offer.  It just means that such a modified job is neither a “reasonable” accommodation, and nor is it an “accommodation” at all — at least, not under the laws governing Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: When the Office of Personnel Management Fails to Apply the Law

Federal disability retirement law is often a frustrating process. On the one hand, for an attorney, it can be a professionally satisfying area of law to practice because the end result — obtaining a benefit for an individual who has shown long years of loyal service to working for the Federal Government; providing a source of income for a person who has been impacted by a medical condition; reaching a successful conclusion to a process: these factors are always satisfying for a practicing attorney. On the other hand — this is an administrative process; it is an area called, “Administrative Law”, and at least at the initial stages of the process, the Attorney handling such a case is dealing with non-attorneys at the Office of Personnel Management.

In other areas of practice, there is often an “equality of competence” (presumably), where attorneys compete or engage in adversarial battle with other attorneys. With Disability Retirement Law, however, the “Disability Specialist” at the Office of Personnel Management often has absolutely no clue as to the current laws governing disability retirement. They simply apply a template and, if a specific case goes outside of that preconceived “template”, then the OPM Representative will often deny the case.

Now, in all fairness, most of the people at OPM have a fair idea of the current law, and more importantly, are open to being informed, educated and persuaded by an attorney that a particular case, with its various wrinkles (and all cases have their unique wrinkles), should be approved because of compliance with a particular statute, a relevant case-law, or a particular regulatory statement. In some particular cases, however, when an OPM representative makes a decision based upon complete ignorance of the prevailing disability retirement laws, one can only throw up one’s hands, and hope that the Reconsideration Specialist will have greater knowledge — or, at the very least, is open to being educated on the proper application of the law.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: The Human Story

I often refer to a favorite short story of mine, inasmuch as it serves as a paradigm for why I practice disability retirement law: the master storyteller, Anton Chekhov, wrote a brilliant short story entitled, Grief (translator’s subtitle: “To Whom Shall I Tell My Grief,”), where the cab-driver, Iona Potapov, tells the profound story of human need — of a son’s death; a tale of tragedy, and of human indifference. And in the course of driving various strangers in his carriage/cab, where he attempts to tell his very personal story of human tragedy, in the end, he must turn to his horse, and speak the mournful song of human desire to the only one who will listen: “That’s how it is, my old horse. There’s no more Kuzma Ionitch. He has left us to live, and he went off pop. Now let’s say, you had a foal, you were that foal’s mother, and suddenly, let’s say, that foal went and left you to live after him. It would be sad, wouldn’t it?”

Each of us has a human tale to tell. The human tale in disability retirement is often one of enduring devotion to one’s life work; of a medical condition beyond one’s control; and the need to change course in one’s life. As an attorney, I am very busy in my practice. The cost of success, of course, is less time — less time for family, less time for personal pursuits (my first and greatest love is and continues to be the study of Philosophy — that is what I studied in College; that is what I studied in graduate school, before heading off to law school; and I find that, each year, I have less and less time in reading the major works of philosophers — but this is often outweighed by the professional satisfaction I get in obtaining disability retirement benefits for my clients); less time for reflection. I receive many, many calls on a daily basis from clients and potential clients who need to file for disability retirement benefits. I try and listen to each human story — but to listen to the fullness of each story would be to take away from the time needed to spend on someone else. That is why, often, I must direct the conversation with a series of questions. I am not a therapist or a doctor — I am an attorney. If I do not focus upon the direct and impactful issues, and help my clients focus upon the significant issues which directly touch upon Federal Disability Retirement, I am not doing my job. Thus, if I am somewhat focused upon certain foundational issues when speaking to people on the telephone, it is only because I am trying to do the best for all of my clients — to direct and re-direct the issues, like a laser-beam, upon the important issues concerning Federal Disability Retirement. In doing so, I hope I am not like the indifferent passengers who left Iona Potapov on the side of the road, to have him tell his human story to the only one left to tell: his horse.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirements: The Office of Personnel Management

I once heard a pastor make a rather unremarkable statement, but profound nevertheless in its simplicity and truth: “Where there are people, there are problems.” To assume that an Agency will make a proper, objective and legally sufficient decision all the time, most of the time, or even more often than not, is probably asking too much. The Office of Personnel Management, as with any Agency, is an entity — a large bureaucracy — made up of “people”. Yes, there are laws governing disability retirement; yes, there are rules, regulations and “criteria” which form the foundational basis for the “decision-making” part of evaluating each disability retirement case; but more profoundly, there are “people” who review, interpret, and apply those rules, regulations, and legal criteria in determining the final outcome: approval or disapproval of a claim.

That is why it is important in “how” a case is presented, as much as “what” it is that is being presented. With people, there are personalities; with personalities, there are variances in how any given OPM person reviews a case and makes a decision, from one to another. Where an attorney can be most helpful, is to “elevate” a case out of being merely one case among many, to making a presentation of a case on three fundamental levels: (1) the seriousness of the medical condition, (2) the legal sufficiency of the disability retirement application, and (3) persuasion by argumentation that it would be a mistake — a misapplication of the legal criteria — to disapprove a disability retirement application. All in all, this comes down to one profound issue: Where there are people, there are problems; and where there are problems, it is often a good idea to make the best presentation possible, at the outset of a disability retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Using the Law

The growing body of law is a pliable, ever-changing process, and where appropriate, it is the implied duty of the attorney to apply arguments and persuade by analogy. Sometimes, actions by agencies which, in one particular context, may be deemed as a negative factor, yet in the context of filing for disability retirement, it can be turned around and applied as “proof-positive” that, indeed, it only further shows that one’s medical condition has impacted one’s ability to perform the essential elements of one’s job.

Thus, while an employee may be placed upon a PIP (“Performance Improvement Plan”) or placed on LWOP and subsequently terminated and separated from federal service based upon unacceptable attendance (and in such termination cases, perhaps the Bruner Presumption would not be applied in a technical sense), it is appropriate to argue to the Office of Personnel Management, and further, to the Judge at the Merit Systems Protection Board, that while the technical application of the Bruner Presumption may not apply, nevertheless, such Agency actions are indicators of the acknowledgment and concession, that the employee suffered from a medical condition, that the medical condition indeed impacted his or her ability to perform the essential elements of the job, and that is why unacceptable attendance and/or a PIP plan was initiated. Negative agency actions, in the context of applying for disability retirement, must be interpreted and argued in the best light possible, in each instance.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire

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