OPM Disability Retirement: Privacy, Social Media and Detracting Information

In the modern age of social media, where information on what previously was considered “private” details of personal and family life is widely disseminated, freely provided, and affirmatively shared, such publicly declared information can be accessed by private, public, and government entities.  

A Federal or Postal worker who is preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, should take care that publicly disseminated information does not contradict the assertions and statements made on an application for Federal Disability Retirement benefits.  While the Office of Personnel Management does not systematically engage in researching information on an applicant displayed in the social media forum; nevertheless, it is certainly “fair game” to obtain such information.  

The problem with social media information posted and freely provided by individuals, including Federal and Postal Workers, is that there may be absolutely no connection between the reality and accuracy of the information posted, and the truth of the individual revealing and posting such information.  

Anonymity, having a different identity — acting like a different person from the true “you” is an easy thing to do on the internet.  But if a wide disparity becomes evident between what one asserts in one arena from what is stated in an official government form under penalty of perjury, there may come a day when one is asked to explain the discrepancy.  

Just a thought, for those Federal and Postal employees who are preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS from the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Determining to File

Sometimes, in coming to a decision to prepare, formulate and file a Federal Disability Retirement application from the Office of Personnel Management, either under FERS or CSRS, the determination to file is made based upon external forces, circumstances and issues either beyond one’s control or, if they were once within reasonable constraints, have become unleashed.  

Thus, when a PIP is imposed upon the employee, or an injured Federal or disabled Postal employee is presented with a Proposal to Removal based upon unacceptable attendance, excessive use of LWOP, etc., then such external circumstances have essentially “forced” one to file for Federal Disability Retirement benefits under FERS or CSRS.  

It matters not whether the Federal or Postal employee has a “legitimate” medical condition; the legitimacy of the medical condition is precisely what has resulted in the Agency action, and whether such external circumstance may be deemed “unfair”, “unreasonable”, “lacking of compassion”, or any other negative theology of human action one may ascribe — the time has come to prepare, formulate and file a Federal Disability Retirement application.  

In the best of all worlds, a deliberative process of preparing one’s finances, considering all of the options, rationally constructing the foundational steps to gather all of the information necessary before determining that it is time to file for Federal Disability Retirement benefits — all of these should come into play.  

But we rarely live in the best of worlds; this is an imperfect world full of imperfect individuals; and, as such, the determination to file for Federal Disability Retirement benefits under FERS or CSRS may well come to fruition based upon external, unreasonable, and uncontrollable circumstances.  As the old dictum goes:  That’s life.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: FERS & SSDI Offset

This information has been concurrently posted on the “forum” concerning FERS & CSRS Disability Retirement, because it is a pending issue which may impact many (former) Federal and Postal employees who are receiving both FERS Disability Retirement benefits as well as SSDI, and impacted by the offset between the two.  

Under FERS, you must file for Social Security Disability benefits.  However, everyone should be aware of two basic (potential) problems:  (1)  There is a much lower “cap” under SSDI as to what one can earn in income and (2) There is an offset between FERS Disability annuity and SSDI (100% the first year, 60% every year thereafter).  Further, as SSDI has a higher and more restrictive standard of proof (generally, one of “total disability” as opposed to being disabled from being able to perform all of the essential elements of one’s job), most Federal and Postal employees will not qualify for SSDI, and so it is not an issue.  

However, every Federal and Postal employee should be aware of the following:  If a Federal or Postal employee becomes qualified for both SSDI and FERS Disability retirement, and receives the joint annuities from both sources, and if at a later time he/she exceeds the income cap as set by SSDI and loses the SSDI benefit, one would presume/assume that since the source of the offset is lost, that OPM would reinstate the full FERS Disability annuity amount.  Not so.  There is a legal distinction being made by OPM between being “eligible” and being “entitled”, and the fact that one is no longer “eligible” does not mean that one is not “entitled”, and therefore no reinstatement of the full annuity is made.  

A couple of cases are presently be appealed to the 3-Judge panel at the MSPB, and a decision is forthcoming any day.  If favorable, good for everyone.  If not, then an appeal to the U.S. Court of Appeals for the Federal Circuit will be entertained.

Knowing what the law says is the key to proper preparation in any event, and regardless of what the outcome of the case will/may be, knowing the law will allow for all recipients of a FERS Disability Retirement annuity to adequately prepare and to act accordingly.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: Beyond the MSPB

Because filing for Federal Disability Retirement benefits under FERS & CSRS is a process which may potentially take the full stages — from the initial application stage, to the Reconsideration Stage, to the Merit Systems Protection Board; then, if denied at the MSPB, to the Petition for Full Review, and if denied there, to the Federal Circuit Court of Appeals; as a result, it is a good idea to be represented by a Federal Disability Attorney.  Remember that the last two stages of the process only allow for arguing an error of law.  To that extent, if one pauses for a moment and reflects — everything ultimately comes down to an error of law.  Very rarely is there a misinterpretation of the facts. 

In a Federal Disability Retirement case, the medical evidence is fairly straightforward.  Yes, there can be some arguments concerning the interpretation of the extent and severity of the medical conditions, but the substantive focus of disagreement between the applicant and the Office of Personnel Management normally comes down to the appropriate application of the standard of law, and whether the application has met the burden of proof and satisfied the legal criteria for eligibility.  As such, the essence of a Federal Disability Retirement application comes down to whether OPM — and subsequently the Administrative Judge — has mis-applied the law.  Thus, at each stage of the process, it is important to lay the foundation by pointing out where the error of applying the law happened — at each and every stage of the process.

Sincerely, Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Approaches & Decisions

With each case, a story must be told.  If the case gets denied, normally my approach is not so much that a “narrative” must be retold, but rather, I tend to view the Reconsideration Stage of the Federal Disability Retirement application process more as the “battle” to set the proper stage — to either win at the Reconsideration Stage, or to win at the Merit Systems Protection Board stage.  What is interesting is that, within the three stages of the process (excluding the appellate stages of the Full Board Review and the appeal to the Federal Circuit Court of Appeals), the need to tell a coherent, empathetic, sympathetic and compelling story of a dedicated and loyal Federal employee who suffers from a medical condition such that it impacts him or her from performing one or more of the essential elements of one’s job, comes “full circle”. 

I approach the “Reconsideration Stage” of the Federal Disability Retirement process under FERS & CSRS as the “center point” of battle, in many ways, precisely because it is the step just before taking it before an Administrative Judge at the Merit Systems Protection Board.  It is the place to give the Office of Personnel Management a subtle warning:  This is your last chance before the destiny of the Disability Retirement Application is taken completely out of your hands and control, and placed into the hands of an Administrative Judge.

Sincerely,

Robert R. McGill, Esquire