Early Retirement for Disabled Federal Workers: Timing Is Always Critical

Timing has to do with the appropriateness of an action within the proper context, before a chosen audience, in accordance with customs and the historical pretext which forms that coalescence of circumstances.  Much of one’s actions are simply to rush in order to complete the task.  But the completion of a task, if ignored in the context of audience, timing, and event, may well result in mere completion, without any resulting effectiveness.

Thus, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee must attempt to optimize every opening, every available opportunity, to take advantage of the proper timing in preparing a case, formulating the case, and filing it — at each stage of the administrative process.

Sometimes, timing of course must incur the chaos of rushing — as in meeting the 1-year Statute of Limitations in filing a Federal Disability Retirement application.  Other times, however, such as responding to a Request for Reconsideration, or to a Medical Questionnaire, requires an appropriate consideration of “when” to file the medical information, the updated medical report, etc.  Further, in the context of today’s reality, where the Office of Personnel Management is presently behind in its review of Federal Disability Retirement applications, there is the question of when “best” the time is to submit additional & updated documentation, whether it is a received approval from SSDI or other persuasive documentation.

Experience alone will often determine knowledge of timing; that is why old men nod with knowing smiles at youth, where time is wasted upon unnecessarily expended energy and enthusiasm.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Statute of Limitations

In filing a Federal Disability Retirement application with the Office of Personnel Management, whether under FERS or CSRS, one must file within one (1) year of being “separated from service”.  That is what is often referred to as the “statute of limitations” — a limit placed upon the ability of a Federal or Postal worker to file for a claim, based upon pragmatic policies of making sure that a claim is “recent” enough to allow for evidence which is neither stale nor outdated.  

There is sometimes a level of confusion as to what it means to be “separated from service”, and it often appears that such confusion arises from mixing issues with other administrative claims.  Thus, OWCP/FECA has its own sets of rules; Social Security has its own set of rules, etc.  For Federal Disability Retirement applications under FERS or CSRS from the Office of Personnel Management, to be “separated from service” and thus to trigger the 1-year timeframe, means that a Federal or Postal worker is terminated, taken off the rolls, and an SF 50 and PS Form 50 needs to be issued showing that a person has been effectively separated from Federal Service.  

For Postal Workers, a good indication that this action has been effectuated is when one stops received the “0”-balance paystubs.  Further, one must remember that, once separated from the Agency, after 31 days or more of such separation, any Federal Disability Retirement application must be filed directly with the Office of Personnel Management.  Filing with the Agency after the 31 day period and waiting for them to process the case, and relying upon them to forward it to OPM may result in a case simply sitting on someone’s desk…until the year has run out.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Further Clarifications

In order to prepare, formulate, file and qualify for Federal Disability Retirement benefits under either FERS or CSRS, one must have a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job.  There are, of course, additional minimum eligibility requirements — such as the fact that one must have been a Federal employee for at least 18 months under FERS (and 5 years under CSRS — which is a moot point, obviously, because anyone who finds him/herself under CSRS already has the minimum 5 years), and further, that the medical condition must last for at least 12 months. 

The 12-month/1 year requirement often poses a puzzlement to Federal and Postal employees contemplating filing for Federal Disability Retirement benefits.  Often the question is asked whether a Federal or Postal employee must have been “out of work” for at least 1 year; or, just as often, the question of the 12 month length or duration of the medical condition will often be confused with the requirement that a Federal or Postal employee must file for Federal Disability Retirement benefits within 1 year of being “separated” from Federal Service.  Thus, the confusion often becomes coagulated to be interpreted as:  I must be separated from service and suffer from my medical condition for a year.  WRONG. 

Normally, a doctor can provide a “prognosis” when it comes to a medical condition — where the doctor “predicts”, within reasonable medical certainty, that a medical condition will last for a minimum of 12 months, 2-3 years, permanently, etc.  That is all that is required in order to meet the 12-month requirement.  One does not have to suffer for a year, or even for many months, in order to begin the process of preparing, formulating, and filing a Federal Disability Retirement application under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: “The Grab-bag”, “Volume” and the “Last Minute” Case

Procrastination leads to filing a Federal Disability Retirement application under FERS or CSRS at the last minute, which leads one to simply attach a volume of medical documentation and list a grab-bag of medical conditions

Sometimes, such an approach is thought to be the only way of preparing, formulating, and filing a Federal Disability Retirement application, especially when there is little or no time left in which to meet the statutory deadline for filing (a Federal or Postal employee must file within 1 year of being separated from Federal Service).  It may well be the only way to file, given that a Federal or Postal employee has only days left to submit the Federal Disability Retirement application

The fact is, one can only argue the merits of a case if, and only if, one has met the Statute of Limitations; if one fails to file in a timely manner, then there is simply no opportunity at all to argue the substantive basis for the Federal Disability Retirement application.  Yet, even in “Last Minute” cases, it is important to pause and attempt to streamline a case.  Why?  Because once a case has been filed, and the Statute of Limitations has passed, a Federal or Postal employee is unable to change or otherwise amend the stated and identified medical conditions, as listed on Standard Form 3112A

As such, even at the last minute, the grab-bag volume case should be — and can be — prepared and formulated with some thought.  In the end, it will serve the Federal or Postal employee who is filing for OPM Disability Retirement benefits under FERS or CSRS, well.

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

OPM Disability Retirement: The 1-Year Rule

Periodically, I remind everyone of the various “1-year” rules which govern Federal Disability Retirement issues under FERS & CSRS.  Since there are multiple applications of the 1-year rule, there is often a confusion which is still prevalent and ongoing.  Thus, here are some clarifications:  You must file for Federal Disability Retirement benefits under FERS or CSRS either while in the employment of a Federal Agency or the U.S. Postal Service, or within 1-year of being separated from Federal Service

There are a couple of exceptions to this 1-year rule:  If you are found to be incompetent, you may be able to get a waiver from the Office of Personnel Management, but this is extremely rare and difficult to obtain.  Another exception, however, is found in the U.S. Court of Appeals case of Johnston v. OPM, where the Court found that if a person was removed for apparent medical reasons, but was never notified by the Agency, then the 1-year rule may be waived (this often happens to Federal and Postal employees who have been on OWCP for many years, and are forgotten and never informed of an initiation of an SF 50 separating him or her from Federal or Postal Service). 

The 1-year rule should not be confused with:  One’s medical condition needs to last for a minimum of 1 year (but this does not mean that you need to wait a year before filing for Federal Disability Retirement benefits; rather, it merely means that your doctor expects that your medical condition will last for a minimum of 12 months).  I hope that this clarfies any confusions, and further, that it serves as a reminder to anyone who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Attorney

Federal and Postal Service Disability Retirement: After Separation from Service

It should be well established for anyone who has looked into Federal Disability Retirement issues, that a person has one (1) year from the time of separation from Federal Service to file for Federal Disability retirement benefits.  Separation from Federal Service can take many different forms:  Resignation; separation for cause; administrative separation based upon one’s medical inability to perform one or more of the essential elements of one’s job; etc.  The latter of these delineated forms (separation for medical inability to perform) is obviously the most beneficial to one contemplating filing for Federal Disability Retirement (first and foremost because it allows for the Bruner Presumption to be applied). 

On the other hand, separation based upon a resignation is often neutral for issues concerning disability retirement (unless, of course, one has been foolish to put into his or her letter of resignation that the reason for the resignation is to go and become a professional poker player for the next year — but even then, if a medical condition existed prior to resignation, one might still be eligible for disability retirement benefits under FERS or CSRS); and, obviously, if the resignation was accompanied by a medical reason, and that particular medical reason was reflected in the SF 50, all the better.  Even separation for adverse actions — if there was a medical condition which existed prior to separation — can be explained away and fought for.  The point here is, regardless of the nature, reason and expressed rationale for separation from service, if a medical condition existed prior to separation from service, such that the medical condition prevented one from performing one or more of the essential elements of one’s job, there is a viable basis for filing for, and fighting for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Decision (Again)

Yes, it is a difficult decision to make — to come to terms with filing for Federal Disability Retirement under FERS or CSRS.  It makes it all the more difficult when individuals wait until the last possible minute before calling up the attorney (me) to file for Federal Disability Retirement benefits.  There have been a few times in the past (very few) when I simply could not take on a case with only a week left before the Statute of Limitations runs out.  The only thing I can do at that point is to identify which forms to fill out (however imperfectly), and give the fax number and the address to Boyers, PA for the individual to file. 

Remember the important point:  You can always make factual, medical and legal arguments after you have filed; you cannot make any arguments if you have failed to file on time.  Of course, it comes with the territory — as an attorney who exclusively represents Federal and Postal employees to obtain disability retirement benefits (there are many attorneys who practice Federal Disability Retirement law as one aspect of a larger practice which includes other areas of Federal Employment law), I understand how intertwining the medical condition is, with the anxiety and stress of filing for Federal Disability Retirement benefits, and how procrastination is often part and parcel of the medical condition itself.  At the same time, however, I take pride in doing a good job; I like to service my clients; I like to see the successful outcome.  As such, I am reluctant to take on cases where there is very little time to file.  I have, and will, take on cases where the Statute of Limitations is about to run out, but there must be at least some time left.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: How Many Should Be Listed?

I am often asked the question:  How many health conditions or disabilities should I list in my Applicant’s Statement of Disability (SF 3112A)?  This question is often preceded by another question and answer:  What are your medical disabilities (me to the caller)?  Answer:  I have about ten of them (caller to me).  Let me start out by giving some free advice:  Don’t list ten medical conditions.  Don’t list nine.  Don’t list eight.

When the Office of Personnel Management reviews a Federal Disability Retirement submission under FERS or CSRS, the OPM Representative will review your disability retirement packet until it is approved — and no further.  Approval comes about upon a finding that one of your listed medical conditions disables you from performing one or more of the essential elements of your job.  Now, sometimes OPM will find that a combination of 2 or 3 medical conditions disables you together:  meaning that OPM perhaps found that while a single one did not disable you under their criteria, a combination of two or three did.

Furthermore, it is important to understand that, because the medical conditions and disabilities upon which OPM makes their decision on will be the basis for future continuation of your disability retirement annuity (in the event that you receive a Medical Questionnaire in the future), it is important to limit the listing of one’s medical disabilities on the SF 3112A to those conditions which will likely last for more than 12 months.

Conclusion:  It is important to sequentially prioritize the medical disabilities, in the order of severity, chronicity and duration.  Further, it is important to NOT list the minor medical conditions which, while they may be aggravating, and have impacting symptoms, may not necessarily prevent one from performing the essential elements of your job.

Sincerely,

Robert R. McGill, Esquire