OPM Disability Retirement: Preempting Anticipated Problems

The obvious and self-evident problems of many can be characterized as failing to know what the questions are; for, if the question is unknown, how can one provide an answer?

Thus, in entering into the surreal universe of Federal Disability Retirement benefits, which can be both a procedural, administrative nightmare, as well as a substantive morass of conflicting and confusing legal framework, the novice who first encounters the Standard Forms (SF 3107, with Schedules A, B & C for the FERS employee; SF 2801 with Schedules A, B & C for the CSRS employee; and SF 3112 series for both the FERS and CSRS employee) may well have a perspective that, inasmuch as the questions asked are fairly easy to comprehend, the answers themselves would naturally, likewise, be easy to append.

But as much of law and the success of legal reasoning involves the preempting of anticipated future problems (e.g., that is precisely what Estates & Trusts lawyers attempt to do — to anticipate any objections of those who are heirs or potential beneficiaries of an estate), so the lack of knowledge of the wide body and historical evolution of how X came to be through the legal evolution and expansion of Y, results in the grave disadvantage of the Federal or Postal Worker who stumbles upon the compendium of the Federal Disability Retirement process.  And, of course, the U.S. Office of Personnel Management loves nothing more than to look upon the unknowing Federal applicant, with hungry eyes, ready to pounce upon such lack of knowledge.

Preempting a problem requires the anticipation of the question; and knowing the question is the first step to coming up with an answer.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Medical Disability Retirement: A Hypothetical

The case-law opinions from the U.S. Merit Systems Protection Board, as well as from the U.S. Court of Appeals for the Federal Circuit, upholds the statement added onto Question 4 of Standard Form 3112A, the form which specifically requests the Applicant’s statement of disability, which asserts:  “We consider only the disease and/or injuries you discuss in this application”.

Failure to identify a particular medical condition can have an adverse impact upon one’s application for Federal Disability Retirement benefits.

Take the following hypothetical: a Federal or Postal employee is terminated from Federal Service; he or she files for Federal Disability Retirement benefits within one (1) year of being separated from service.  While the Statute of Limitations has already been met because the filing has occurred within the 1-year timeframe, during the process of awaiting a decision from the U.S. Office of Personnel Management, the treating doctor has diagnosed with greater specificity the primary and underlying cause of the medical condition.

In his or her haste to file, the (now former) Federal employee quickly noted the diagnosed medical conditions in response to question 4, but nowhere is there an indication of the newly-diagnosed medical condition.  During the wait, it is now more than 1 year from the time of separation.  The quandary:  The Federal Disability Retirement application cannot be withdrawn, because the 1-year Statute of Limitations has already passed, and so he or she is no longer able to re-file.  No additional medical conditions can be added onto the SF 3112A.

Is there a problem? The answer:  Under this hypothetical, potentially yes.

Even if OPM approves the case, there may be future difficulties if OPM approves the Disability Retirement application based upon a medical condition listed, but resolved.  Care in identifying and properly annotating the medical conditions must be taken in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Encounters, Problems, Worries…

The entire process of preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS should necessarily anticipate encounters with potential pitfalls, problems, and issues as they appear and erupt, which concern and impact the Federal or Postal employee at every stage of the long procedural process.

This is a natural part of the application process, precisely because the Federal or Postal employee is suddenly making contact with a multiplicity of personnel and issues:  notification to the agency that one is no longer able to perform one or more of the essential elements of one’s job; filing for a benefit which requires the admission and revelation of the most personal of information — one’s medical condition; encounters with the Human Resources department of one’s agency, one’s treating doctor, one’s supervisor, etc.; the filling out and completing of multiple forms which may determine the outcome of the success or failure of an endeavor which will impact upon one’s financial future and plans; as well as encountering a multitude of other issues, people, and problems in the course of attempting to prove that one is eligible by a preponderance of the evidence for a benefit called, “Federal Disability Retirement”.

Throughout the process, it is important to have the guidance of knowledgeable personnel.  However, there is an important distinction to be made between knowledge and information; there is an infinite plenitude of the latter; the former is what one needs to seek.

As the process of preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS is a long and challenging process, it is best to anticipate unexpected and unanticipated encounters, worries and problems throughout the process, and to prepare to meet, overcome, and answer each one as they appear.

Sincerely,

Robert R. McGill, Esquire
OPM Medical Disability Retirement Attorney

 

OPM Disability Retirement: Burden of Proof

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, a considerable amount of effort goes into anticipating any objections which may be encountered by the Office of Personnel Management, and to “preempt” such anticipatory objections by addressing them at the outset.

A proper balance must be maintained in engaging in such preemptive accounting, because one does not want to address the issues which would unnecessarily create a “red flag”, yet at the same time, discussing and explaining reasonable areas of potential concern should be a part of any Federal Disability Retirement application.

The problems always arise because it is the Federal or Postal employee who is filing for Federal Disability Retirement benefits who has the affirmative burden of proving one’s eligibility for Federal Disability Retirement benefits.  The Federal or Postal employee must, by a preponderance of the evidence, prove his or her “burden of proof” affirmatively.

Conversely, the Office of Personnel Management has the authority to review, criticize, analyze, and ultimately approve or deny a Federal Disability Retirement application under FERS or CSRS.  They can merely sit back and take pot shots at an application, point out that this particular legal criteria was not “sufficiently met”, or simply make a generic statement that the medical evidence did not present a “compelling enough” case (what in the world could such a generalized non-statement possible mean?).

Yet, one must play the language game, and play it well, and the best way to play it is to attempt to preempt and anticipate OPM’s potential objections, and to meet one’s burden of proof by jumping ahead, and predicting how an OPM Representative might view the Federal Disability Retirement application that is being prepared.  Predicting the future is always a tenuous endeavor; nevertheless, one must engage the potential pitfalls, and anticipate the actions of the Office of Personnel Management, if one is going to be successful.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Issues

The issues upon which the Office of Personnel Management denies a Federal Disability Retirement application under FERS or CSRS are normally rather limited.  There are recurrent themes, and some of the more prevalent ones are:  insufficient medical documentation; issues concerning accommodations and attempted accommodations by the Agency; situational disability and issues which focus upon work issues which never should have been included in the Applicant’s Statement of Disability (SF 3112A).  

These are generic designations of the types of issues which an OPM Claims Representative may argue as the primary basis of his or her denial of a Federal Disability Retirement application, and there may be multiple corollary issues which are described — but, ultimately, when all is said and done, there are limited reasons as to why an Initial Stage application for Federal Disability Retirement is denied.  

That fact, however — of the limited basis and reasons — does not mean that the issues are simple; rather, that in responding to a denial from OPM, no matter how lengthy the denial letter may appear (or how short, for that matter), the issues can be neatly “broken down” and placed into manageable categories in order to respond.  Responding to a denial properly (in addition to filing the Request for Reconsideration in a timely manner) is important; how to respond, is all the more important.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Procrastination

Someone once said that procrastination is a wonderful thing — it allows for a lag-time between the future (for those things which need to get accomplished at some point), the present (those things which require attention immediately), and the past (those things which needed to get done, but whose time has passed, and with each passing moment, the urgency of which is diminishing because it doesn’t matter, anyway).  But procrastination has a way of “catching up” — where the piling up of past non-action combined with the present need to act, finally explodes when there is no future left to wait for. 

Preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS should not be compiled based upon a paradigm of procrastination.  Waiting for the last moment, or simply putting together a voluminous box of medical records and quickly filling out an SF 3112A by listing a compendium of known or suspected medical conditions, then quickly concluding that they impact one or more of the essential elements of one’s job, will only further raise the chances of a denial from the Office of Personnel Management. 

When a medical condition impacts a Federal or Postal employee and his or her ability to perform the essential elements of one’s job, there is certainly a sense of urgency.  However, the urgency to quickly file a case must be weighed and balanced against the future likelihood of success.  This is a long, long, process, and the extra time it may take — weeks or months — to properly prepare, formulate and file a Federal Disability Retirement application under FERS or CSRS, will help to prevent the problems of procrastination.  

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Quantitative Approach

The problem with submitting a Federal Disability Retirement application under FERS or CSRS based upon the “quantitative approach” (submitting a voluminous medical file which, by the sheer weight, extent and thickness of the file, reveals the severity of the multiple medical conditions) is that it often fails to provide the proper bridge between the particular medical condition a Federal or Postal employee suffers from, and the impact upon the essential elements of one’s job.

Certainly, medical records, notes, diagnostic test results, etc., can provide a narrative delineation of one’s continuing medical conditions — but the question becomes, a narrative to what end?  The Office of Personnel Management will often review a large stack of medical documentation and simply conclude that there has been insufficient medical documentation, and further, that the medical documentation submitted fails to show that such conditions are severe enough to prevent one from perform one or more of the essential elements of one’s job. That is because the mere existence of a medical condition — no matter how extensive such medical conditions have required in terms of hospitalizations, testing, surgical or other procedures, etc. — is not enough to satisfy, by a preponderance of the evidence, the criteria applicable for eligibility for Federal Disability Retirement benefits under FERS or CSRS.

Remember, always use the golden rule:  quality over quantity.  And in a Federal Disability Retirement application under FERS or CSRS, quality means the bridging of that conceptual gap between the medical condition, and the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Preempting OPM’s Arguments

It is important at all stages of a Federal Disability Retirement application for FERS & CSRS employees to predict, anticipate, and preempt the arguments which the Office of Personnel Management may make, will make, and can be expected to make.  Obviously, the three main areas of such concern are:  Sufficiency of medical documentation; Agency efforts for accommodation and reassignment; the impact and interconnection between one’s medical condition(s) and the positional duties of one’s job. 

However, there are multiple other areas, and it is the job of an applicant filing for Federal Disability Retirement benefits, or his/her attorney, to anticipate the areas of OPM’s concerns, and to address them both factually and legally — the latter, by pointing out statutory authorities and case-law holdings directly or implicitly touching upon those very areas of concern.  Further, one should never be fooled if, in an initial denial of an OPM Disability Retirement application, the substance of a denial is fairly short or if it is detailed and lengthy; the content of a denial letter should not determine the extent of a response by an applicant at the Reconsideration Stage.  Instead, whether short, of “middle length”, or extremely detailed, a response should anticipate all areas of concern, and the applicant who is attempting to secure an approval for his or her Federal Disability Retirement benefits should always preempt any potential areas for a further denial.

Sincerely,

Robert R. McGill, Esquire