FERS & CSRS Disability Retirement: Back-Pay

Remember to not spite yourself, especially when it comes to financial considerations. If your medical disability is forcing you to take excessive LWOP, it might be better to go “cold turkey” and stay completely out on LWOP while you file for disability retirement benefits. This is because, once you get your disability retirement application approved, you will be paid “back pay” in a lump-sum form, back to the last day of your pay, at the 60% rate from your last day of pay forward for the first 12 months.

Thus, if you work only 2 days out of the week, and you take LWOP for the other 3 days, you are losing 20% of pay, because were you to go out on LWOP, instead of being paid 40% of your salary (2 out of the 5 days), you would be getting back-pay for essentially 3 out of the 5 days (60%). On the other hand, don’t go out on LWOP, then after 4 or 5 months, go back to work for a week — because in that instance, you will never recover the 4 or 5 months of LWOP, because the “last day of pay” will have been paid to you when you went back to work. While all of this may be a bit confusing, it is essential to your financial health and consideration when entering the complex process of Federal Disability Retirement under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Pragmatic Considerations

Often, pragmatic judgments and decisions must be considered at different stages of a disability retirement application. For instance, whether to submit all of the medical documentation in your possession is a discretionary judgment which needs to be considered. One might wonder why an applicant may withhold some or part of the medical documentation, and the answer is quite simple: if the Office of Personnel Management requests additional medical documentation, or it is rejected at the Initial Stage and further medical documentation needs to be submitted — if the applicant does not have additional medical documentation to submit, then there is very little incentive or basis for OPM to “reconsider” their position of denial.

Now, one might wonder, If the “additional” medical documentation had been submitted in the first place, perhaps OPM would never had requested more documentation, or perhaps they would have approved it to begin with. Not necessarily so. If you have already provided sufficient medical documentation to prove by a preponderance of the evidence your case, sometimes reserving that “extra” set of office or treatment notes is a wise decision. It may be the difference between being able to respond to OPM’s request for additional medical documentation, and not being able to — and the difference between an approval or a denial, and a basis for OPM to “reconsider” their position.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirements: Groundless Denials of FERS/CSRS Disability Retirement Applications

One would assume that when a disability retirement application has been reviewed by someone at the Office of Personnel Management, and a decision of denial has been rendered, that such a decision will — at a bare minimum — be based upon a legally sufficient ground. In other words, that the legal criteria asserted in the decision will be correctly delineated.

Unfortunately, that is too often not the case. In fact, many of the legal claims asserted by the Office of Personnel Management have no justification in law, and are exaggerated at best, and a mis-statement of the applicable laws, at worst. But for disability retirement applicants who are unrepresented, the individual may well read the decision, believe what the decision states, and become convinced that the burden is too onerous to overcome, and fail to request reconsideration in the case, discouraged that he or she will never be able to meet the legal burden imposed in the initial denial.

Thus, for instance, when an OPM denial letter states that there was “no evidence showing hallucinations, delusions or other symptoms of psychosis,” and therefore the disability retirement is denied, one might conclude: “Since I don’t have those conditions, I must not be qualified for disability retirement.” Wrong! Or, when OPM says: “There was no evidence of hospitalization or the need for such treatment,” one might become completely discouraged and say, “Oh, disability retirement requires that my medical condition is such that it requires hospitalization in order to qualify, and therefore I cannot qualify“. Wrong! Such overstated and exaggerated claims by the Office of Personnel Management are commonplace, and unnecessarily place a burden upon disability retirement applicants through mis-statements of the law. Never allow an OPM mis-statement of the law to persuade you to abandon your case; instead, seek competent legal counsel to explain what the law of disability retirement really is, and proceed from here.

Sincerely,

Robert R. McGill, Esquire

Recurring Issues of Disability Accommodation, Light & Limited Duty, and the Form Filling of the OPM SF 3112D PDF File

The issue of Agency Accommodations — whether or not an agency can truly “accommodate” an individual; what constitutes a legal accommodation as opposed to temporary light-duty arrangements which do not constitute legally viable accommodations under the standards as expressed in Bracey v. OPM and other cases — keeps coming up in the form of questions and concerns.

Let me just state a few thoughts: First, obviously, the best scenario is if the Agency checks off block 4(a) of SF 3112D, acknowledging that the “medical evidence presented to the agency shows that accommodation is not possible due to the severity of the medical condition and the physical requirements of the position.” Second, however, even if the Agency does not check off 4(a), it is not necessarily a problem, or even a valid concern. Agency Human Resources personnel are notoriously ignorant of the current case-law, and often mistake ad-hoc temporary assignments as constituting an “accommodation”, when in fact they represent no such standard or level of acceptability in disability retirement law. Finally, it is always mindful to remember that disability retirement is a medical issue, not one which is determined by non-medical personnel, and that is why it is important to focus first and foremost upon obtaining a legally sufficient medical narrative report.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Applicant’s Statement of Disability

In most instances, when I am asked to represent an applicant at the Reconsideration Stage, after he or she has attempted to obtain an approval at the Initial Stage without an attorney, I find that the prevailing mistake made is the exaggerated verbosity of the statement itself. The old adage from Shakespeare, which (I know) is too often quoted (and misquoted), from Hamlet, Act 3, Scene 2, where Queen Gertrude responds by saying, “The lady doth protest too much, methinks,” is indeed appropriate and applicable to this issue.

While the applicant’s statement of disability must be detailed, complete, and accurate, it must not be “overstated”. It should reflect the factual and medical integrity of the medical opinions and findings as delineated in the medical records, documents and notes; it should never exceed the medical evidence in assertions, claims or scope. Overzealous self-advocacy is often the problem in cases of disability retirement where the disabled individual represents him or herself. To this, of course, another common adage is applicable: “A person representing himself in court has a fool for a client.”

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire