CSRS & FERS Disability Retirement: The Right Questions

Often, a person who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS doesn’t know the “right question” to ask in order to make a proper decision.  Because a medical condition often leaves a person with daily and profound fatigue  (both physical and cognitive), it is enough just to get through the day, come home and attempt to recuperate and regain enough strength to try and make it back to work the next day.  Then, of course, there are the financial worries — whether or not the disability annuity will be enough to support a family; whether a person will be able to supplement his or her income with a part-time job in this tough economy; or whether Social Security Disability benefits can be approved and, even with the offset, allow for enough income for some semblence of financial security. 

All of these questions — or concerns — are clearly legitimate ones, and provide a good foundation for determining the viability for filing for Federal Disability Retirement benefits under FERS or CSRS.  But there are others, also:  What will happen if you don’t file for disability retirement benefits?  Will you be placed on a PIP?  Will you receive an unsatisfactory performance rating?  Will you last until retirement age?  If you last until retirement age, will you have the health necessary to enjoy your retirement?  Is it time to start a small business venture in this tough economy, and if so, when the economy begins to recover, will your small business grow with a growing economy?  Will your supervisor support your extended absences or over-use of sick leave for much longer?  Is the work that is getting backed up placing more pressure on you, such that it is exacerbating your medical condition further?  Think through the questions seriously.  It may be time to file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Detailed Denial

Neither length nor detail constitutes legitimacy.  The spectrum of the types and styles of denial letters issued by the Office of Personnel Management in Federal Disability Retirement cases under FERS & CSRS range from a short paragraph under the “Discussion Section”, to 3 – 4 pages of apparent references to doctor’s notes, reports, etc. — with a lengthy lecture about the need for “objective” medical evidence, and about how a particular medical condition “may be” treated by X, Y or Z treatment modalities. 

Don’t be fooled.  One may think that, because OPM provides a seemingly “detailed” explanation of why a particular disability retirement application was denied, that such lengthy detail means that it is somehow “substantive”.  In fact, I often find the opposite to be true:  the shorter the denial, the greater the substance.  The lengthy denial letters contain “substance”, all right — but substance of the wrong kind.  They contain:  Mis-statements of the law; mis-statements of the criteria to be applied; inappropriate assertions of medical opinions (contrary to what one might think, the OPM representative does not normally have a medical degree, let alone a law degree), and a host of other “mis-statements”.  Sometimes, the weightier the denial, the more confusing as far as how to respond.  And, perhaps, that is one methodology as to how OPM wants to approach the case:  If it seems long and complicated, maybe the applicant will sigh, give up, and go away.  Don’t.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Decision

It is always a hard decision to file for disability retirement benefits.  Aside from the psychological anguish which must be confronted (feelings of worthlessness or devaluation of one’s worth because we live in a society which places a high value upon productivity, work, and output & competence in our jobs, despite our giving lip-service to “family”, “relationships” and “community”), the potential disability retirement applicant must also make pragmatic decisions based upon a variegated spectrum of financial, professional, family & economic circumstances.  Such foundational, decision-making factors could include:  one’s medical conditions (obviously); the type of job one is in; whether a disability retirement annuity is sufficient or even realistic; whether the job market outside of the federal sector is promising enough to allow for making up to 80% of what one’s job currently pays, in addition to the disability annuity; whether a parti-time position or partial income added to the disability annuity will be enough; whether one’s supervisor & agency will be “going after” you for performance, conduct, or excessive absences, and if so, how soon; and many other factors. 

It is always a trying time.  Consideration in filing for disability retirement benefits must be based upon a deliberative methodology, based upon serious consideration of multiple factors.  In basing a decision to file for disability retirement, it is best to do it right before considering doing it at all.  As such, consultation with an attorney who is an expert in the area of Federal Disability Retirement laws can be an invaluable source of information in making the “right” decision.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Lawless Supervisor

Every now and then (or perhaps more often than we like to think) a Supervisor will fill out the SF 3112B (Supervisor’s Statement) with such venom and innuendo and half-truths, as to make the disability retirement applicant out to be John Gotti’s half-brother and reincarnate of the conceptual paradigm of the greatest incompetent the Federal Government has ever seen (next to the Supervisor himself, of course). Or, it will state that the applicant has been “under investigation”, or that he/she has “mislead” the Agency, or other such half-truth, unsubstantiated allegation. The problem in addressing such a Supervisor’s Statement with the Office of Personnel Management (if, in fact, one has the opportunity to address the issue before it gets to OPM or, as is more often the case, if the disability retirement application is denied, and the Supervisor’s Statement is referenced in the initial decision of denial), is the following: If you address it too forcefully, or emphasize it, then you are in danger of focusing the “fight” on the truth or falsity of what the Supervisor has said. In other words, you have essentially allowed the Supervisor to win the fight by shifting your focus upon the venom of the Supervisor. It is more likely the wiser course of action to grant minimal attention to the Supervisor’s Statement; give it the due response it deserves, addressing the falsity of the statement, and how it is entirely unsubstantiated; and, sometimes, express outrage that OPM would have even considered such scandalous charges when it has been unverified; then focus most of the attention upon the validity and force of the Medical Narrative Report that accompanies the disability retirement application. For, after all, always remember that this is a “Medical Disability Retirement Application” — with the emphasis upon “medical”, and not “Supervisor”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Be Careful

As part of a Federal or Postal employee’s process of filing for Federal Disability Retirement benefits, one may have to negotiate, respond to, or fight against an unfair Agency’s attempt to remove the Federal or Postal employee — based upon factors other than what is truly the underlying basis — of his or her medical inability to perform the essential elements of the Federal job.  For whatever reason — of incompetence, of pure unkindness, of personal vendettas, etc. —  Agencies will often refuse to remove an individual for the administratively neutral reason (by “neutral”, to mean that it is not an “adverse” action) of “medical inability to perform the essential elements of the job”.  Instead, they will often revert to other reasons:  “excessive absences”, “AWOL”, “excessive LWOP”; “violation of a PIP”, and other such overtly misleading reasons.  When, the truth of the matter is/was, the Federal or Postal employee was sick, has a medical condition, and could not come to work because of medical reasons.  Be careful.  Fight the removal action.  Don’t accept the unfair basis.  File an appeal with the Merit Systems Protection Board.  Remember, a removal for medical inability to perform the essential elements of the job can help you get an approval in a disability retirement application.  Better yet, hire an attorney who will fight for you.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Is there a higher standard of proof for Psychiatric Disabilities?

I am attempting to address the issue of Psychiatric medical disabilities in the context of filing for Federal Disability Retirement benefits under FERS & CSRS, by addressing the issue from various perspectives and angles, in an effort to inform the reader in different ways.  Major Depression, Generalized Anxiety Disorder, panic attacks, Bipolar Disorder — each possess unique traits, characteristics, and symptomatologies and manifestations exhibited in ways specific to the psychiatric condition. 

What is often the case is that, while the Psychiatrist is the medical doctor who is the “expert” on the Psychiatric condition, it is often the psychologist (the “Ph.D”), the Therapist, the Licensed Clinical Social Worker, etc. who has the “personalized” knowledge of the patient, who can provide the descriptive emotional impact, and the specific adjectives which can properly be formulated to reveal and “prove” the impact upon one’s inability to perform the essential elements of one’s job. 

Often, the Psychiatrist is merely the “medication manager” — the prescriber of the psychotropic medications.  Thus, in proving a Federal Disability Retirement case by a preponderance of the evidence, it is often necessary to have both the Therapist, as well as the Psychiatrist, in a joint effort to meet the standard of proof.  Is there a higher standard of proof in a Psychiatric medical condition?  To some extent, the answer is yes — but this is only natural, inasmuch as it requires “more” to have people fully understand the nature, extent, and impact of what it means to have a psychiatric medical condition.  For, at its very essence, who among us can truly understand what it means to be overwhelmed by a psychiatric medical condition?  Only words — descriptive adjectives and emotive-concepts, can draw us closer to having at least some rudimentary understanding.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Very First Step

Federal and Postal employees often get a bad rap; yet, what I find in all cases, without exception, is that Federal and Postal employees take great pride in their work. Moreover, they do not want to file for disability retirement — there is a “mental wall” — a desire at all costs not to file for disability retirement, until the physical pain gets too much, or the psychiatric symptoms become too overwhelming.

It is at that critical point — the recognition that he or she is no longer able to continue to work at a particular job; this is the difficult point of self-awareness that must be faced. This is the very first step which must be taken, before one is able to file for disability retirement. And, indeed, I find that Federal and Postal employees are loyal, hard-working, and motivated to work, and to work hard. But there is a point at which one must come to grips with the fact that a particular job A is no longer a good fit for Federal Worker B, with medical conditions C. When these three elements coalesce, it is time for the individual to seriously contemplate filing for disability retirement. Federal Disability Retirement is a benefit which all Federal and Postal employees are entitled to, if he or she qualifies. When the first step needs to be taken, there is never any shame in that — because you have shown your loyalty, your dedication, and your endurance through your medical conditions; there is a point where you must begin to listen to your doctors.

Sincerely,

Robert R. McGill, Esquire