Federal and Postal Disability Retirement: Is the Doctor in, Please?

In preparing, formulating and filing an OPM Disability Retirement application under Federal employee retirement system (FERS), the support of one’s treating doctor is essential in putting together an effective presentation to the Office of Personnel Management.  Sometimes, even doctors have to be reminded of his or her “obligation” to a patient.  When, how, and in what manner of approaching the doctor, is a discretionary element of the process best left up to the patient.  

The reason why the “treating doctor”, as delineated by cases and opinions rendered by Administrative Judges at the Merit Systems Protection Board and by Judges at the U.S. Court of Appeals for the Federal Circuit, is the best one to provide a clinical assessment and evaluation of one’s ability or inability, and the extent thereof, of performing one or more of the essential elements of one’s job, is that the long-term relationship that has been (or should have been) established over these many years of treatment, is a foundational basis of being able to ascertain the abilities, capabilities, and limitations of the patient’s physical, emotional and mental condition. 

If a treating doctor hides behind the excuse of saying that he or she is not “equipped” to make a disability determination, or that there are doctors “out there” who specialize in disability determinations, and he/she is not one of them, an explanatory discussion should be engaged in with the doctor, which should include at least the following three (3) elements:  (1)  A reminder of the history of the doctor-patient relationship, (2) that your particular doctor is the one who knows the intimate details of your medical conditions and the history of treatment engaged in, and (3) that such administrative headaches resulting in obtaining Federal Disability Retirement benefits from the Office of Personnel Management is a vital part of the long and recuperative process that the doctor has been trying to attain.  

Ultimately, it is the treating doctor who is the best one to render an opinion as to whether a Federal or Postal employee whom the doctor is treating, can continue to perform all of the essential elements of one’s particular job.  The question then is, Is the doctor in?  Meaning:  Is the doctor still going to “be there” when it really counts?

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Letting Go

In preparing, formulating and filing a Federal Disability Retirement under FERS or CSRS, it is often normal to have concurrent “cases” filed — an appeal to the Merit Systems Protection Board in response to an adverse action or termination by the Agency; an EEOC case proceeding against the Agency; and other judicial and quasi-judicial forums.

At some critical point, however, there comes a time when a decision must be made — a bifurcation, an “either/or”:  Either one wants to continue litigating to get one’s job back, or the preparation of the Federal Disability Retirement application under FERS or CSRS, as an admission that one is no longer able to perform one or more of the essential elements of one’s job, must proceed.  But not both.  

For the most part, concurrent judicial proceedings can continue without a conflict between the two.  Lawyers can talk out of both sides of the mouth, and beyond — sometimes out of three or four sides of the mouth.  It is well that an attorney’s mouth is circular and not triangular, thereby failing to restrict and contain how many sides there are.  

Given that, however, there often comes a time when a Federal or Postal employee cannot credibly state that the Agency had no right to terminate one’s employment, yet claim with the Office of Personnel Management that one can no longer perform one or more of the essential elements of one’s job.  

Indeed, as a practical matter, it is often a good negotiating point — of persuading the agency that the Federal or Postal employee will be willing to drop the adversarial proceedings in return for the Agency restating the basis of the removal, based upon one’s medical inability to perform the essential elements of one’s job.  Furthermore, it is often a pragmatic “health reason” — to let go of the adversarial proceedings, and allow for a Federal Disability Retirement application to get approved, so that one may begin the process of recuperating one’s health.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Proper Responses

A receipt of a denial from the Office of Personnel Management to a Federal Disability Retirement application under either FERS or CSRS is always an event which is upsetting to a Federal or Postal employee, but it is “part of the process” which occurs often enough.  

If it is a second denial (where a Request for Reconsideration has already been accomplished, and the Office of Personnel Management has denied it again), then the only appropriate response is to file an appeal to the Merit Systems Protection Board (no response is required, or even appropriate, to OPM, as it is out of their jurisdictional purview upon denying it a second time).  

If it is a “first denial“, then a “Request for Reconsideration” must be filed within thirty (30) days of the date of the denial letter (one can argue that the 30 days should be counted from the date of receipt, but it is always better to be on the safe side), and if requested, an additional thirty (30) days is automatically granted in order to have sufficient time to gather and submit further documentation to rebut and answer the denial from the Office of Personnel Management.

Submission of the Request for Reconsideration, and participation in the process of having the Office of Personnel Management reconsider the initial denial, is mandatory, not elective.  By this is meant the following:  You cannot bypass or skip the Reconsideration Stage and jump directly to the MSPB; you must first get a decision on the Request for Reconsideration before the Merit Systems Protection Board will consider your case.  

You cannot get angry or reactive and declare, “I will just file an appeal to the MSPB and have an Administrative Judge look at my case”.  You must patiently go through the proper channels of justice, and respond accordingly.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Legal Standard & Persuasion

There is a distinction between the existence of a legal standard and the citing of such legal standard — to include statutory references, case-law citations, etc. — and the art of persuasion.  In reviewing Federal and Postal Disability Retirement applications which have been previously prepared, formulated and submitted by unrepresented Federal and Postal employees, which have been denied, it is often refreshing to see how laymen (i.e., “non-lawyers”) have utilized cases and case-law citations (often straight from some of my articles and blogs) in arguing his or her case. 

The problem with such an approach, however, is that the unrepresented Federal or Postal employee will often refer to such legal standards without engaging in the necessary art of persuasion.  Legal standards are certainly there to be used; however, there is a proper way and methodology of utilizing legal standards, and an improper way.  The improper way is to use the legal standard as a hammer — of stating:  X exists and states Y, therefore you must conclude Z.  The proper methodology in utilizing a legal standard is to engage in the art of persuasion:  X exists, and X determines why Y must come about, and therefore Z should be the logical conclusion, and here are the reasons why. 

Normally, I advise against non-lawyers using the law precisely because of the potential mis-application of the methodology.  Leave the law to lawyers; that is why lawyers are hired.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Objectivity

In filing a Federal Disability Retirement application under FERS or CSRS, a level of objectivity in making one’s case is a goal which must always be in the purview of formulating an application.  If a Federal or Postal Worker is attempting to formulate and prepare a FERS or CSRS disability retirement application without the assistance or representation of an OPM Disability Attorney, this becomes a difficult task — for the identity of the person making the affirmative argument for approval of a Federal Disability Retirement application is the same person who is describing the medical condition, the impact upon one’s Federal or Postal job, and the legal reasons why such an application under FERS or CSRS should be approved.  

There are methods to avoid the appearance of “self-promotion” — a term which may not seem applicable to formulating a FERS or CSRS disability retirement application, but one which simply cannot be avoided completely. For, representation and being a proponent for one’s “cause” — however valid, and however arguably sustainable — nevertheless necessarily may imply a self-interest which engenders self-promotion.  If a Federal or Postal employee insists upon formulating, preparing and submitting an application for Federal Disability Retirement benefits under FERS or CSRS without proper representation, then one’s focus should be upon an “objective” basis — what the medical reports, narratives, diagnostic tests, psychological tests, etc., reveal, and to attempt to discuss such medical documentation in an objective, independent and dispassionate manner.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The MSPB & Beyond, a Retrospective View

Assume the following hypotethical:  a Federal or Postal employee has filed for Federal Disability Retirement benefits under FERS or CSRS, and has been denied twice by the Office of Personnel Management, has gone before an Administrative Judge for a Hearing at the Merit Systems Protection Board, and now a decision has been made to file a Petition for Review.  

What is the MSPB looking for at a PFR?  

The arguments to be made will focus upon whether or not the Administrative Judge applied “the law” (collectively known for all of the statutes, rules, regulations and prior cases which have touched upon, defined, or otherwise decided upon, any and all issues concerning Federal Disability Retirement) correctly, or whether he/she made an “error of law”.  As such, from a retrospective viewpoint, what should have been done during the Hearing of the matter before the MSPB & the Administrative Judge?  The answer:  where possible, a citation of the applicable cases showing at each juncture of the evidence submitted, that it complied with a specific case and holding of a case.  With that “on the record”, it constrains the Administrative Judge from ruling against the Appellant, but more importantly for purposes of the Petition for Full Review, it establishes the errors of law which the Administrative Judge committed, for purposes of showing reversible errors at the PFR.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the third stage of the administrative process in attempting to obtain Federal Disability Retirement benefits under FERS or CSRS.  By this Stage, while the Office of Personnel Management has been both the “judge and jury” for determining one’s eligibility for Federal Disability Retirement benefits, the case is then handed over to an Administrative Judge to be the arbiter of such determination.

While it is advisable for a Federal or Postal Worker to obtain a FERS/CSRS Disability Attorney from the start of the administrative process, it is of even greater importance to consider obtaining proper legal representation before proceeding down the path of the MSPB.  This statement of advising any Federal or Postal employee to obtain proper representation at the MSPB is made for several reasons, not the least of which includes the following:  The MSPB is the last “stage” of the process in which a Federal or Postal employee who is seeking to obtain Federal Disability Retirement benefits may submit evidence in order to prove one’s case (with some special exceptions); any basis for an appeal, upon the chance that the Administrative Judge rules against you, must be established during the Hearing of the case at this stage; and since this stage is the arena of “the law”, it is important to be familiar with the most recent case-laws which govern Federal Disability Retirement.  The MSPB is not a place to feel one’s way through; it is the playground where the “grown-ups” play.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Connection between the Prehearing Statement and the Hearing

When a Federal Disability Retirement application under FERS or CSRS has been denied twice by the Office of Personnel Management, and one appeals the Federal Disability Retirement case to the Merit Systems Protection Board, there comes a point when the scheduling order requires that each side (the “Appellant” or the one who filed the appeal, and the Office of the Personnel Management) file a “Prehearing Statement”.  

Do not underestimate the importance of preparing a Prehearing Statement.  It is not simply a listing of the witnesses to be testifying at the MSPB Hearing; more than that, it is an opportunity to set the issues, to form in the mind of the Administrative Judge the parameters of what will be proven; an opportunity to proffer and plant the seeds of the evidence which will be presented; to undermine and preempt many of the arguments which are used customarily by the Office of Personnel Management; to argue for the Bruner Presumption (even if it does not strictly apply); and to show how, at this preliminary stage of the process, that the upcoming Hearing is really an unnecessary event.  Thus, the Prehearing Statement, as well as the Prehearing Conference, is an important preliminary step in setting the stage for success in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: What to Do

Whether or not one should hire an OPM Disability Attorney at the initial stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS, or whether to wait for a denial; such a question must be answered by each Federal or Postal employee, based upon the strength of a case, based upon the financial resources of the individual and the family, and based upon the ability of the potential applicant to organize, compile, streamline, delineate, communicate, descriptively convey, and methodologically argue the strength of a case.  Much of being able to successfully compile the multiple facets of a Federal or Postal Disability Retirement application depends upon the discretionary ability to make judgments about which aspects to emphasize and magnify; which aspects to de-emphasize; and (often) most importantly, which issues to “leave alone”. 

Whatever it is that one does in preparing a Federal or Postal Disability Retirement Application under FERS or CSRS, the “What to Do” list must always include what NOT to do.  Whatever it is that one does, one should do nothing that is going to negatively impact one’s application or case.  And, above all, remember that the person who “assumes” that the Federal Disability Retirement application will be approved at the first stage, and prepares such a packet, is often the person who regrets having said “this or that”, or wishes that “x, y or z” had not been included.  This is especially true when it gets denied the first time, and then the second time, and it is now being reviewed by an Administrative Judge.  On the other hand, I have found that there are few, if any, issues which are not ultimately “correctable” or able to be “explained away”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law

Technically, the law does not have to be applied at the administrative, agency-level of the Office of Personnel Management.  Let me clarify:  one likes to always think that when an applicant for Federal Disability Retirement under FERS or CSRS is filing for the benefit, that the agency which oversees the application will review it with an overarching umbrella of criteria which is governed by an objective foundation deemed as “the law”.  Thus, in a perfect world, one might imagine an efficient line of technocrats sitting in cubicles, all with a reference book containing the relevant laws governing the eligiblity criteria for Federal Disability Retirement.  But that would be in a perfect world; and since such a perfect world fails to exist, what we have is an arbitrary sprinkling of various personnel, who collectively comprise the Office of Personnel Management, some of whom apply the law well, and some of whom apply the law less than competently. 

To some extent, the arbitrary methodology applied at the agency level is counter-balanced with the threat of a review by an Administrative Judge at the Merit Systems Protection Board, followed by a Full Review at the MSPB, then to be further appealed to at the Federal Circuit Court level; but it is nevertheless sometimes disconcerting that, at the Agency level, this peculiar animal called “the law” is not uniformly applied in all cases, at all times.  And sometimes rarely.

Sincerely,

Robert R. McGill, Esquire