OPM Disability Retirement: Remembering What “Supportive” Means

Over time, one’s memory and historical perspective becomes clouded and obscured.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is obviously a long and complex history of changes, amendments and refinements to the aggregate compendium of that which constitutes the totality of “the law” governing Federal Disability Retirement benefits.

Thus, since the initial inception of the enactment of statutory authority granting the U.S. Office of Personnel Management authority to approve Federal Disability Retirement benefits under CSRS (and later under FERS), there has been an evolution of statutory amendments, regulatory clarifications, case-law expansion, contraction and clarifications — the composite of which constitutes “the law” governing Federal Disability Retirement applications whether under FERS or CSRS.

Part of the evolutionary process includes what is termed “supportive” documentation or evidence, such as an Agency’s determination that the Federal or Postal employee cannot be accommodated; the Flight Surgeon’s decertification of an Air Traffic Controller’s medical clearance; a Law Enforcement agency’s conclusions that a Federal Law Enforcement Officer is unable to meet the physical requirements of his or her position; and many other agency determinations which “support” a Federal Disability Retirement application.  But “supportive” does not mean “primary”, and the Federal or Postal worker must always remember that such ancillary evidence must be in addition to the primary evidence submitted in a Federal Disability Retirement application.

Don’t mistake the support evidence as replacing the essential evidentiary component of a Federal Disability Retirement application, whether under FERS or CSRS. The primary evidence must always come first — both by definition, as well as by statutory requirement.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Workers: SSDI Impact

In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS individuals are exempted for this particular issue), the Federal or Postal employee who is contemplating filing for the benefit must at some point in the process file for Social Security Disability benefits (SSDI).  This is because the law is set up for an off-setting feature between the two “pockets” of benefits — where, in the first year, there is a 100% offset between FERS & SSDI, and a 60% offset every year thereafter.  

In some rare instances, Social Security will approve a person’s disability application before the Office of Personnel Management has approved a FERS Disability Retirement application.  In that instance, one can use the SSDI approval as “persuasive” evidence to the Office of Personnel Management.  It is not determinative evidence, but there are legal arguments to be made which essentially state that, since a person has been found to be “totally disabled” by the Social Security Administration, based upon the same or identical medical evidence and documentation, that the Office of Personnel Management should grant a FERS Disability Retirement application based upon the same or identical medical evidence.  

Is the reverse true?  If a FERS Disability Retirement application is approved, can such an approval be used as evidence — persuasive or determinative — for an SSDI application?  That would be a weaker argument, precisely because OPM Disability Retirement does not make a determination of total disability, but rather, a decision that the Federal or Postal employee cannot perform one or more of the essential elements of one’s particular kind of job.  Moreover, the Social Security Administration might also argue that inasmuch as SSDI does allow for some earned income (about $1,000 per month) from a job, such allowance shows that approval of a FERS Disability Retirement, which recognizes that one is merely disabled from performing one or more of the essential elements of one’s particular kind of job, should not be determinative of a Social Security criteria which requires a higher standard of disability.

Knowing what impact each aspect or element of a process will have upon another is an important step in preparing, formulating and filing a Federal Disability Retirement application. As knowledge is the source of success, utilization of such knowledge is the pathway to an approval in a Federal Disability Retirement application under FERS and CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Different Benefits

In preparing, formulating and filing a Federal Disability Retirement application under FERS and CSRS, it is often thought that medical documentation obtained for one venue of eligible benefits (e.g., Worker’s Compensation or SSDI, or VA benefits) can be utilized in the pursuit of FERS or CSRS Disability Retirement benefits.  However, because the applicable criteria which each Federal program or benefit is different, one should always take care before submitting the same, or similar, medical documentation, for multiple and varied applications.  

It is not so much that such documentation cannot be deemed relevant for multiple purposes; rather, relevance is a relative concept, and while X can be relevant for A & B, it may only meet the statutory criteria for A but not for B.

Further, every answer to a question depends upon what the question is.  For FERS & CSRS Disability Retirement, the question always involves whether or not a Federal or Postal employee’s medical condition(s) prevents one from performing one or more of the essential elements of one’s job.  The question involving SSDI, VA Benefits or OWCP is a completely different one.  

However, a particular medical document may in fact cross the boundaries of relevance and address a specific issue or aspect of a question, and for that limited purposes, may in fact be “relevant enough” to be submitted.  Such submissions crossing boundaries, however, must be done with care and deliberation; for, while it may answer one aspect of a Federal Disability Retirement application, it could potentially raise multiple other questions which might have been best to leave alone.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Opinions, OPM and Power

In filing a Federal Disability Retirement application under FERS or CSRS, one must always be aware of the distinction between the two — opinions and power — and apply it with that awareness in filing an application for Federal Disability Retirement to the Office of Personnel Management (OPM).  

There will be multiple opinions involved in any Federal Disability Retirement packet — the opinion of the medical doctor who is treating the applicant; the opinion of the applicant as to one’s ability or inability to perform some, which or all of the essential elements of one’s job; the opinion of the Supervisor or someone at the Agency on multiple issues, rendered in the Supervisor’s Statement and the Agency’s Certification for Reassignment and Accommodation; and the “opinion” handed out by the Office of Personnel Management as to whether all of the compendium of opinions, collectively gathered to present the evidence for approval in a Federal Disability Retirement application, constitute sufficient evidence such that it meets the preponderance of the evidence in proving one’s case.  It is thus helpful to understand that all of these identifiable propositions are all “opinions”.  

The one distinction, however, is that the opinion of the Office of Personnel Management carries with it the power of approval or disapproval, and so one may designate it as carrying more “weight” because it contains an inherent authority which all other opinions lack — that of the power to say yea or nay.  But remember that such power, fortunately, is not absolute, nor necessarily arbitrary and capricious, and there is ultimately an appeal process to have such raw power reviewed for viability and sufficiency.  That is why the validity and force of the “other” opinions is important to maintain — the medical opinion and the opinion of the Applicant — so that when it is reviewed by an Administrative Judge, the integrity of a Federal Disability Retirement application under FERS or CSRS may be properly adjudicated.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Tools to Use

I am often asked, when filing for Federal Disability Retirement benefits under FERS or CSRS, Will you use … ?  From the range of tools of evidence to use — including VA disability ratings, to OWCP “CA” forms, MMI ratings, Veterans Administration records, Second opinion doctor’s report, referee opinion report, letters from the Agency indicating unavailability of work; letters from the agency indicating the extent and limitation of willingness to provide for an “accommodation” (whether legally sufficient to rise to the level of meeting the definition of what it means to be an “accommodation” under the law), and multiple other tools — all of it is a matter of legal discretion.  

The general rule that I utilize is that, If it is helpful to my client’s case to prove to the Office of Personnel Management that my client’s Federal Disability Retirement application under FERS or CSRS will be enhanced and aided by the material, then I will use it.  The discretionary issue which the attorney representing an applicant for Federal Disability Retirement benefits is essentially to “match” the document or piece of evidence with the particular issues which must be proven, and that is a matter of carefully reviewing each piece of evidence in compiling a compendium of evidence which makes up the “whole”.  It takes time, patience, and sufficient legal knowledge to understand which issues are important in proving a Federal Disability Retirement case under FERS or CSRS to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: RIF

If a person is separated from Federal Service pursuant to a Reduction-in-Force, can he file an application for Federal Disability Retirement benefits under FERS or CSRS?  As with all such questions, “It Depends”.  If a person has a medical disability prior to the separation from service, and the doctor will state that prior to the separation, the Federal or Postal employee could no longer perform one or more of the essential elements of the job, then the answer is that he has a Federal Disability Retirement case.  Whether from a RIF or for some other reasons is ultimately irrelevant; the point is that one must ultimately show that prior to separation from Federal Service — any type of separation — the connection between the medical condition and the type of job one has, must be made.  Remember, further, that during the time of Federal Employment, if a person was receiving OWCP partial disability payments for an hour, two hours, three hours, per week or per day, that is further evidence that the Federal or Postal employee was unable to perform all of the essential elements of one’s job.  For, as with any full-time Federal sector job, being able to work 8 hours per day, 5 days per week, is part of the essential element of such a job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Miscellaneous

Some cases take months to win; others, merely a week or so.  In some Disability Retirement applications under FERS or CSRS, a half-page report of substantive medical evidence is enough; in other cases, it is the compilation of voluminous material which must be argued and persuasively emphasized, in order to convince the representative at the Office of Personnel Management that the Federal or Postal employee is entitled to Federal Disability Retirement benefits. 

Professionally, it gives me no greater satisfaction when a case takes a week, or if it is approved based upon a half-page medical report, than if it takes months or volumes of medical evidence:  an approval by any means results in the satisfaction of a client.  There a some cases in which a client “grumbles” when I am hired, paid, and am able to reverse an OPM decision within a week; but I try and explain to all clients that when you hire an attorney, you hire the attorney not only for his professional competence, knowledge and experience, but also for the reputation that an attorney brings to the forum.  I have attempted to build a reputation of integrity with the Office of Personnel Management, and there are many times when OPM will reverse their previous decision upon my entering my appearance into a case.  I share this fact with great humility, and an appreciation that one’s reputation still means something in this world.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement Cases: Presenting the Case to OPM

Fortunately, most of my cases which are submitted before the Office of Personnel Management at the Initial Stage are approved. It is important to step back and understand, first and foremost, how the approval/disapproval process works. Remember that the submission to the Office of Personnel Management is a “paper submission”, and as with any bureaucratic presentation, it is important to make sure that it is neat, understandable, and “presentable.” You want to make your particular submission stand out from the thousands which are submitted. Neatness and streamling accounts for much. Merely gathering up a thousand pages of medical documentation and hoping that the sheer volume and weight of the medical records will be proportionate to the seriousness which the OPM representative will view your case, is a foolhardy approach.

I attempt to streamline the case for the OPM representative, by annotating, identifying the medical documentation, explaining the relevance of the documentation, and identifying both statutory and case-law citations which are relevant in supporting the fundamental basis for the disability retirement application. It is important to make a proper presentation. It makes the life of the OPM Representative that much easier, and if the OPM Representative can review the application, read the synopsis, clearly understand the relevance of the medical documentation, be able to analyze the applicant’s statement and do it almost effortlessly, then one is more often than not rewarded with an approval, rather than the dreaded “denial letter”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Physician I

Initial inquiries concerning filing for Federal and Postal disability retirement benefits often ask the following question: Do I have a doctor to whom I can refer the individual? This question often follows upon the unfortunate circumstance that the individual does not have a very supportive doctor, or has been under the “medical care” of an OWCP-referral doctor.  The answer is always an unequivocal:  No.  The reason:  The Merit Systems Protection Board is very clear about the issue — that in Federal Disability Retirement cases, a medical report is persuasive when written by a doctor who has a long-standing patient-doctor relationship; has had regular contact with the individual; has had clinical contact over a sufficient period of time, such that the doctor can, within reasonable medical probability, provide a rational basis for stating that the individual is no longer able to perform one or more of the essential elements of his or her job. Thus, even before considering taking a disability retirement, it is important for the individual to make a proper assessment as to whether or not one’s doctor is “supportive”; if not, it may be a good idea to think about switching doctors, and finding one who is supportive.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire