Postal and Federal Disability Retirement: Consequence of Confusion

Often, in a Federal Disability Retirement case, there are “indicators” which are telltale signs as to whether or not something was done or not.  Federal and Postal workers who call in to inquire about the feasibility of filing a Federal Disability Retirement application under FERS or CSRS are often vague about certain facts and issues, and understandably so, because things have never been explained properly, or as is more often the case, explained but with mistaken information.  For example:  Federal and Postal workers often confuse OWCP & Department of Labor issues, with issues concerning OPM Disability Retirement.  Such statements as:  “I already filed for Department of Labor disability benefits”, or “I filed a CA ___”, or “I’ve been separated for X number of months” (when in fact he or she has merely been on LWOP with the Agency).  

The problem with confusing the concepts between OWCP benefits and OPM Disability Retirement (and to make it even more confusing, to mix those two with SSDI issues) is that a person may be on OWCP or SSDI for over a year after being separated from Federal Service, and fail to file for OPM Disability Retirement — and forever be foreclosed from doing so because he or she never realized that you must file for Federal Disability Retirement benefits under FERS or CSRS, independently and separately from OWCP or SSDI.  Read up and study the conceptual distinctions; for, there may be some long-term consequences from such confusions.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Reconsiderations

There is a line to be drawn between arguing the law within a boundary of integrity, and arguing the law beyond any reasonable interpretation of the law.  This principle is no less true in administrative law, which is what Federal Disability Retirement law is considered.  I often see non-lawyers make “legal arguments” in an initial application to the Office of Personnel Management, which is then denied, and I then enter my appearance in the case at the Second, Reconsideration Stage of the process.  That is fine — some applicants want to try and save the cost of hiring an attorney, and then decide it is necessary after it has been denied. 

However, as I often explain to clients:  while most mistakes in a Federal Disability Retirement application can be amended or explained, I do not have the magical ability to place “blinders” upon the eyes of the OPM Representative for legal or other arguments or statements made to them at the First Stage of the Process.  While my website and my articles & writings provide a good bit of information on filing for Federal Disability Retirement benefits under FERS or CSRS, and anyone can use it to his or her advantage, one bit of caution:  Don’t make legal arguments if you don’t fully know what you are talking about.  To do so more often than not results in a loss of credibility, and if your case goes before an Administrative Judge at the Merit Systems Protection Board, the Judge may not look favorably upon a case where a spurious argument was made at the initial stage of the process.

Sincerely, Robert R. McGill, Esquire

FERS Disability Retirement Applicant: Waiting too long

My approach to Federal Disability Retirement law is that there are very few, if any, mistakes made by the applicant which cannot be corrected, amended, or explained, especially where the essential ingredients of a “good” case are in existence: a supportive doctor; a position/duties which are incompatible with the type of medical conditions one suffers from, etc.

However, I receive telephone calls periodically where the individual simply has waited “too long”.  Thus, to clarify: If you’ve been denied twice by the Office of Personnel Management, and you have a Hearing before an Administrative Judge 3 days from today, then you have probably “waited too long” (although, if you can get a postponement, or suspension of the case, there may still be time). If you’ve been denied by OPM and the Merit Systems Protection Board has already denied your case, then you have probably “waited too long”.  Or, if you have been denied by OPM and by the MSPB and by the Full Board, then you have probably “waited too long”.

I hope that I am getting the point across by overstating the case — while each individual must decided when it is the “right time” to get a FERS lawyer to help in filing for disability retirement cases, and yes, while I take on cases at all stages of the process, the point is quite simple: It is better to have the expertise of an experienced attorney earlier, than later. In most case, that means at the very beginning of the process.

Sincerely,

Robert R. McGill, Esquire

 

Common Mistakes in Filing for CSRS & FERS Disability Retirement

There are multiple mistakes often made when an unrepresented individual files for disability retirement under FERS & CSRS. One such common mistake is the very presentation of an application packet that is presented to the Office of Personnel Management.

Often, when an individual has a disability retirement application denied at the First Stage, and has asked me to represent him/her at the second, Reconsideration Stage, I find that what the individual did at the first stage was to put together the packet of medical records — often, a voluminous set breathtaking in its sheer quantity of pages — thinking that because he/she has serious medical issues, that the great quantity of medical records in itself will justify qualification of a disability retirement packet.

Volume of medical records rarely qualifies an individual for disability retirement. Instead, it must be remembered that eligibility and qualification for disability retirement benefits is determined by a set of legal criteria that must be met by a preponderance of the evidence, and it is up to the applicant and his/her legal representative to meet that burden of proof.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement Applicants

FERS and CSRS disability retirement applicants are especially “vulnerable” because of the inherently precarious financial situation that an applicant often finds him/herself in, and often desperate need for an approval from the Office of Personnel Management. Most of the cases that I represent are approved at the First Stage; upon a denial, however, it is necessary to go to the Second Stage, or the “Request for Reconsideration Stage.” An invidiual has 30 days from the date of the denial letter to file a request for reconsideration, then another 30 days to obtain and suibmit additional medical and supporting documentation.

If it is denied a second time, then an applicant has a right to file an appeal to the Merit Systems Protection Board (MSPB). While the MSPB will hear the case de novo (meaning, “anew” without consideration of OPM’s prior decisions), neverthess, it is important to look upon a disability retirement case as a “case in progress”, and that is why hiring an attorney at the outset is often important. While most “mistakes” made by an applicant are minor and correctable, everything that is submitted — the applicant’s statement, any records or reports submitted — become part of the record as a whole and cannot be retracted or erased. That is why a thorough review by a competent attorney is important in filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire