Federal Disability Retirement: OWCP Independence & Instersection

When Federal and Postal employees call to inquiry about Federal Disability Retirement issues from the Office of Personnel Management, the initial part of the conversation often involves separating the distinction and differences between OPM Disability Retirement and temporary total disability benefits obtained through the Office of Worker’s Compensation Programs, Department of Labor (OWCP/DOL).

The two are distinct, independent, and do not intersect except when it comes to having both benefits approved — in which case the “intersection” between the two is comprised of choosing one benefit over the other, and allowing the other to remain in an inactive status.  The fact that each is separate, independent and non-intersecting (for the most part), however, does not mean that documentation from one entity cannot be used to prove or otherwise enhance the provability of the other (yes, the double-negative makes it more difficult to understand — but what it means is that you can use documentation from OWCP sources to help prove your OPM Disability Retirement).

Thus, while there are two separate “language games” (to use a term coined by the 20th Century Philosopher, Ludwig Wittgenstein) involving usage of terms which are somewhat foreign to each other — such as “MMI”, “percentage disability ratings”, whether it is an “on-the-job” injury or not, etc., the fact that OWCP issues embrace a medical condition which impacts one’s ability or inability to perform one or more of the essential elements of one’s job, can certainly be a valuable tool in the arsenal of weapons to be used in proving a Federal Disability Retirement case.  On the other hand, discretion is a tactical tool which also needs to be applied…

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Recognition

People who are considering filing for disability retirement benefits under FERS & CSRS often come to a recognition that there is life after the Federal Government, right around Thanksgiving, Christmas, and the holiday period in between.  Why?  Because when family, friends and loved ones gather around, and there is some time to recuperate and rejuvenate from the daily grind which further exacerbates and worsens one’s medical conditions, the time of respite, the time of peace and quite, of reflection and time reserved away from work, allows for people to recognize that, Yes, there is life beyond the job, and second, that to continue the daily grind until retirement may result in the inability of one to enjoy one’s retirement in later years.  Good health is a gift; all too often, we misuse that gift.  Happy Thanksgiving to all, and please enjoy a safe holiday weekend.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Each Step is a New Review

There are only one of several ways in which a Federal disability retirement application under FERS or CSRS can be lost: Either a Judge at the Federal Circuit Court of Appeals renders a final opinion denying a Federal or Postal Employee his or her disability retirement, or the Federal or Postal employee simply gives up.  As to the former:  Even then, if the Federal or Postal employee has not been separated from service for more than one (1) year, he or she may file a new application for disability retirement. 

Thus, we are left with the latter:  a disability retirement applicant simply gives up.  By “giving up” is meant:  the next step is not taken; the time-frame within which to file a Request for Reconsideration or an appeal is allowed to “lapse”; or, if an appeal is taken, it is done with resignation and surrender.  Nothing good can come out of such an approach.  Each step of the process in a Federal disability retirement case must be attacked aggressively.  Each step must be looked at as a potential place for a new review. Think about it in reverse:  If you don’t take the next step, then nothing good will certainly happen, so what is there to lose?  Indeed, there are times when a client hires me to file a Request for Reconsideration or an appeal to the Merit Systems Protection Board, and the mere filing of my appearance into the case persuades and convinces the OPM representative to reverse course and grant the disability retirement application.  The point of making such a statement is not to “brag”, but to make the larger point:  good things can happen only if you affirmatively act.  Otherwise, you are left with what King Lear said to his daughter Cordelia, that “nothing can come from nothing”. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Attorney’s Role

It may sound harsh; it may even sound “mean”; but I often tell my potential clients that I am not their therapist, doctor, or empathy-advisor.  I am their attorney.  When advising people to respond to an Office of Personnel Management denial with some “discretion”, it is often difficult for an individual who is so closely tied with his or her own case, to remain objective and detached.  Yet, detachment is the mark of professionalism, and that is why the old adage is true — that an individual who represents himself in court has a fool for a client. 

My job as an attorney who represents Federal and Postal employees to obtain Federal Disability Retirement benefits under FERS & CSRS must be guided with a focus of understanding the factual context, the medical conditions, the type of job, the symptomatologies manifested by the medical conditions, and apply the law governing disability retirement issues.  If I become a therapist, it detracts from my focus; if I become an empathy-advisor, I become “attached”, as opposed to de-tached.  That is not to say that I will not listen to the relevant medical background (note the confusing double-negative, which merely means that yes, I will listen, to some extent) — I certainly will.  But only to the extent that will allow me to win the case for my client.  For, that is my job:  to get an approval from the Office of Personnel Management.  If I am successful at that, then my client will have gained all the needed empathy of the world:  a semblence of financial security.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretion in a Response

When a Federal Disability Retirement applicant under FERS or CSRS receives an unfavorable response from the Office of Personnel Management (translated:  an initial Denial), you have the right (which must be asserted in order to move forward in the future, i.e., to the MSPB and beyond) to file a Request for Reconsideration.  If you receive a second denial, then the only response required (and which should and must be asserted) is an appeal to the Merit Systems Protection Board.  A response to the initial denial, however, should include a reply to the (often) detailed “discussion” section of the denial letter. 

Normally, when I file a response (in addition to obtaining additional medical documentation from the doctors, and any other substantiating documentation which may be relevant), I normally write up a 5 – 7 page responsive legal memorandum rebutting the denial letter.  Now, this is where “discretion” is necessary.  Upon an initial reading of a denial letter, one’s first response is normally not that which one should act upon, because it is often a reaction of, “What???”   Discretion is a virtue to follow; there must be a proper balance between responding to every single criticism from OPM (not a good idea), to ignoring everything in the denial letter (also not a good idea), to choosing two or three of the more substantive issues brought up and addressing those issues.  How to address them, with what tone, what manner & style, etc., is what an attorney is for.

Sincerely,

Robert R. McGill, Esquire