Federal OPM Disability Retirement: The Mistakes People Make

The greatest mistake of all is to “assume” X or to “presume” Y; and this is not uncommon, precisely because the wording of the Standard Forms as presented on SF 3112A (Applicant’s Statement of Disability), which is the central basis upon which a Federal/Postal Disability Retirement application is formulated (both for CSRS as well as for FERS employees), makes it appear as if obtaining an approval from the U.S. Office of Personnel Management (OPM) is merely a pro forma activity.

And, indeed, many have informed the undersigned attorney that Human Resources’ personnel at various agencies will understate the scrutiny which OPM will apply in reviewing and evaluating a Federal or Postal Medical Retirement application.

The main problem with H.R. Personnel dismissing the arduous and meticulously scrutinizing administrative process as applied by the U.S. Office of Personnel Management, is that such underestimation is barely acknowledged when a denial is received from OPM on a Federal Disability Retirement case.  All of a sudden, the Human Resources personnel put up their hands and state, “It’s not our responsibility”, when all along they had been insisting as to the ease of the process.

No, it is true — it is not the ultimate responsibility of the Agency or its Human Resources Department.  Yes, it is also true that any application for a CSRS or FERS Disability Retirement is the responsibility of the individual applicant.

As such, because responsibility falls squarely (why, by the way, is it “squarely“, as opposed to “triangularly” or “circularly”?) upon the Federal or Postal Worker, it behooves one to take the entire process seriously, and to invest the proper time, attention, and expenses needed, to do it right “the first time”.

Sincerely,

McGill Disability Retirement Legal Services

 

Disability Retirement for Federal Workers: Trying to Act “As If”…

One can act as if a mistake was not made; the problem exists, however, and continues to impact, with the assumption that X did happen, despite one’s best attempts at ignoring the occurrence.

Thus, when the question is posed to the undersigned attorney whether it would be “okay” to try and file for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management, on one’s own, and if it is denied, to then seek the assistance of an attorney, the short answer is, “Of course”.  The silent “but” and qualifier is never necessarily posed or queried.

The caveat is a simple one:  While most mistakes are correctable, there is one thing which cannot be done:  one cannot put blinders on OPM for what they have already received and reviewed.  We cannot play “as if” OPM did not review that specific document which implied a situational disability; or the one which characterized a medical condition as one which “waxes and wanes“; or referred to certain elements in terms of possibilities and potentialities; and other such equivocating conceptual paradigms.

The world of OPM, Medical Disability Retirement, Federal employment issues, etc., does not allow for the playing of the “as if” game.  Thus, to the question of going at a Federal Disability Retirement application alone, yes, we can play as if the Federal or Postal employee will do everything properly; but when the consequences come back with a negative result, we cannot then play as if we are back at the starting gates of the race; we have already entered into the fray, and must deal with the facts as they now exist.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Disappointment of a Denial

A Denial Letter from the U.S. Office of Personnel Management quashes the Federal or Postal employee’s plans for the future, which includes an ability to secure a stream of income, to have the recuperative period in which to recover from a progressively deteriorating medical condition, and generally to be able to “move on” in life.  As all rejections have a negative impact upon a person — in terms of emotional, psychological as well as practical consequences — so a denial letter from OPM is seen as a rejection of a compendium of submitted proof concerning a Federal Disability Retirement application.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one becomes completely and totally involved in the gathering, compiling and submission of the documentation, statements, narratives and records in order to “prove” that one is eligible for Federal Disability Retirement benefits.

Such totality of involvement often betrays an ability to remain objective in a case; for, by definition, self-involvement diminishes the ability of an individual to be able to step outside of one’s self, and to evaluate the effectiveness of an endeavor apart from the subjective perspective which everyone brings to bear upon a project, issue, work product, etc.  But objectivity is important, because an uninvolved, detached assessment of a Federal Disability Retirement application evaluates the viability of a Federal Disability Retirement packet without the concerns already indicated — those emotional, psychological and practical consequences which form a part of a person’s being.  That is why having an advocate or legal representation is an integral part of preparing, formulating and filing for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Tidbits

The term itself is an interesting one; for, unlike its corollary, it refers to the “choice” or “pleasing” morsel of food, as opposed to “leftovers” or “crumbs”, which imply food which has either been rejected or left behind after the table sitter has made the prime decision.  “Tidbits” in its secondary meaning, of course, implies information; the conceptual applicability has transferred from one within the exclusive context of foods, to include information, facts, statements, etc.

Thus, a tidbit:  In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, it is important to understand and recognize that, while most mistakes in the preparation and filing of a Federal Disability Retirement application are “correctable” (what an ugly word — both in appearance and in phonetic structure), what one cannot do is to put “blinders” on the eyes of OPM or before an Administrative Judge, once certain information has been submitted to OPM.

Thus, if an individual wants to attempt the First Stage of the administrative process of filing for Federal Disability Retirement on his or her own, without the assistance of an OPM Disability Attorney, thinking that it is an “easy” case, that is all well and good, but while the tools of representation for an attorney include use of the malleability of language, such that “linguistic gymnastics” will be engaged in as the primary sport of the attorney; nevertheless, elasticity of language does have its limits.

Facts, once exposed, can be explained and amended, but the essence of the fact or statement remains in the hands of OPM.  This constitutes and comprises the tidbit of the day; a choice and pleasing morsel?  Perhaps not in consequential substance, but hopefully in terms of informational relevance.  Ah, but to have been offered instead a morsel of apple pie!

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Common Mistakes

There is of course the old adage (and old “sayings” are neatly formulated, refined over time, and revised and updated for applicability and relevance to the significance of the current times), stated in its variety of forms, that those who fail to study history, are condemned to repeat it.  But what if the historical repetition of such foolhardiness results because of the disparate nature of history, scattered among thousands, and never based upon a common essence from which all can draw?

A corollary of the previous words of wisdom is the following (made up by this author):  Historical mistakes repeat themselves because everyone believes that he or she is smarter than the ones before.

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, common mistakes abound, and repetitively reveal themselves throughout the process.  Writing to preempt what one thinks a Supervisor will state or not state; listing every medical condition without prioritizing the impact upon one’s inability to perform the essential elements of one’s job; writing long, meandering narratives; including “red flag” concepts such as “hostile work environment“; simply giving to the doctor the 3112C with the return address of one’s Human Resources Department at one’s agency; and multiple other such follies.  Yet, such mistakes are not only common; they are to be expected.

The administrative process of Federal Disability Retirement is constructed to appear “simple”.  The questions asked on the standard forms appear straightforward, if not cleverly uncomplicated in their very formulation.  Yet, the laws which govern the benefit identified as “Federal Disability Retirement” is amassed in a compendium of statutes, regulations and case-law, all of which have evolved in interpretive significance over many years.

History does repeat itself; for Federal and Postal employees who are contemplating or have initiated the filing of a Federal Disability Retirement application, whether under FERS or CSRS, the age-old adage concerning history not only confirms the truth of such a saying, but reinforces it daily.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: When a Mistake is Made

Mistakes made in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, are usually correctable, and for a number of reasons:  most mistakes merely require additional clarifications; some “mistakes” are only apparently so, but substantively valid otherwise; and ancillary mistakes of an innocuous nature can reflect the inconsistencies of reality, as opposed to a direct contradiction between two or more persons.

While blinders cannot be placed upon the Case Worker at the Office of Personnel Management once a Federal Disability Retirement application has been submitted, nor does it usually require such drastic measures.

The question to be asked, of course, is whether or not the alleged “mistake” should be addressed, to what extent, and how prominently?  For, the old Shakespearean adage that “thou protesteth too much” can apply in a Federal Disability Retirement application, where too much emphasis upon a particular issue can unduly magnify the issue itself, as opposed to dealing with the issue in a passing manner.

Thus, a statement made in the Applicant’s Statement of Disability, or by a treating doctor, which indicates an undermining of meeting the legal criteria of eligibility in a Federal Disability Retirement application, should probably be addressed.

A direct statement made in a Supervisor’s Statement may or may not be relevant.  Often, such statements are merely opinions meant to undermine a Federal Disability Retirement application, but whether it is worth addressing is a discretionary issue.  The real issue concerning discrepancies or mistakes have to do with who is making it into a loud noise; and the one who makes the loudest noise, is often the one who attracts the greatest attention.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Reluctance through Negation

Making mistakes is part of the entire process of going through life; receiving advice and proper counsel helps to mitigate such mistakes; the distinction between “advice” and “information” is not merely a conceptual difference, but a pragmatic one which impacts one’s actions, thoughts, and application of thoughts to actions.  

“Going it alone” in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS is no longer the only viable option; there is much information “out there” on the internet, and other publication resources are available; but as has been written about previously, there is a conceptual distinction to be made between “information” and “knowledge”, where the former is merely a compilation of facts and perspectives upon those facts, whereas the latter is a filtered compendium of the latter based upon experience, reflection, and considered logical analysis.  

The Federal or Postal employee who is considering filing for Federal Disability Retirement, who encounters the morass of information and hesitates because of the reluctance to engage in an administrative process, complex though it may be, is making a crucial mistake.  

Most “mistakes” which result in a denial from the Office of Personnel Management in a Federal Disability Retirement application under FERS or CSRS are correctable.  Such mistakes, however, must be identified, recognized, and addressed in any subsequent appeal, either at the Reconsideration Stage of the process, or in the appeal to the Merit Systems Protection Board.  

Reluctance to begin or continue the process of preparing, formulating, and filing a Federal Disability Retirement application with the Office of Personnel Management, because of the potential negation through mistakes, while understandable, should not result in failing to file.  

The medical condition should be the determinative factor, as well as the quality of life for the Federal or Postal Worker contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Making it Easy for OPM

Whether inadvertently or not, an Applicant who has formulated, prepared and filed a Federal Disability Retirement application either under FERS or CSRS will make it easy for the Office of Personnel Management to deny a case.  

Thus, for instance, on the Applicant’s Statement of Disability, where the applicant is asked concerning the status one is in at the agency, if the applicant agrees with the Agency or the Supervisor that the Agency has “accommodated” the individual in his or her employment, then the Office of Personnel Management will often focus selectively upon that answer and argue that, inasmuch as X has stated that the employee has been accommodated, and Y (the employee — you) has agreed with the agency, therefore Y is not eligible or entitled to Federal Disability Retirement benefits because Y has been accommodated.  

But, as it has been previously stated on multiple occasions, the term “accommodation” is a technical term of art, and if one fails to appreciate the nuances of the term, the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS can fall into the trap of using the term in a non-technical, general way, and thereby defeat one’s own application for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Correcting a Misconception

I will have to write an article entitled, ten mistakes people make in filing for Federal Disability Retirement benefits under FERS or CSRS.  Or, better yet, perhaps it would be helpful to point out Ten Things Federal and Postal Employees should do to prepare to file for Federal Disability Retirement under FERS or CSRS.  

In either event, in speaking to multiple individuals over the past couple of days, common and recurring misconceptions have arisen, as they inevitably do, and when such mistaken notions concerning FERS or CSRS Disability Retirement benefits — the process, the benefit itself, the legal criteria for eligibility, etc. — it is necessary to immediately correct the mistake.  

Often, the mistaken idea comes in the form of, “I read somewhere that…”  Now, assuming that the mis-statement was not read on my website or in any of my related articles; and assuming that, even if it were read by something I had written, but had instead been mis-interpreted or somehow taken out of context, the only way in which to clarify or otherwise “correct the record” is to repetitively and incessantly state and restate the correct law concerning the matter.  The point of mistaken conceptual confusion was: That in order to file for Federal Disability Retirement under FERS or CSRS, one has to be separated from Federal service.  That is simply untrue.  In fact, for obvious economic reasons, most people continue to try and work while awaiting the approval of his or her Federal Disability Retirement application.  Furthermore, if one is separated from Federal Service, he or she has only up to one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS, from the time of separation.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Failing to Follow “Reasonable Treatment”

In fighting to prove one’s eligibility for Federal Disability Retirement benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor.

Such an argument can prove to be fatal to an applicant’s case, but it is good to know the parameters of what it means to “fail to follow” reasonable medical treatment.  For instance, non-compliance with a medication regimen can be fatal to a case.  Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment.

On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an “estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.”

These are two light-posts on the spectrum of what is deemed “reasonable treatment”.  Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor.  Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess.  What falls in-between these two extremes should always be with the guidance of “reasonableness”, in close consultation with your treating doctor.

Sincerely,

Robert R. McGill, Esquire