The Law of Salvage and Federal Disability Retirement Compensation

The concept is derived from maritime law, where recovery of ship or cargo at sea left to abandonment and forfeiture should be duly compensated of a value commensurate with the worth of the property salvaged.  The ocean is a perilous expanse, fraught with dangers encompassing weather, treacherous beneath-the-surface terrain, and potential piracy; and it is within this context of the magnitude of dangers to be faced, that the equitable principles of maritime law are applied. And isn’t that what one must do in most phases and contexts of life?

The measurement of future potential consequences, compared as against the benefit to be received, the compensation considered, which should determine the value of the services rendered.  Thus is a lifetime annuity measurable, not only in terms of the net amount, but also taking into account the economic stability which it promises, the future security it provides, and the potential for a life allowed.

Filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether one is under FERS or CSRS, or CSRS Offset, must be viewed in this light; for the benefit to be received is almost immeasurable:  Beyond the annuity amount itself, it provides for the capacity of the Federal or Postal worker to be compensated in order to attend to one’s medical condition; the time that one is on Federal Disability Retirement counts towards the total number of years of service, such that when the Federal Disability Retirement annuity is recalculated at age 62, those years one was on Federal Disability Retirement counts towards the total number of years of service; and while one is receiving Federal Disability Retirement, one may work at a private sector job and make up to 80% of what one’s former position currently pays; and many, many other benefits and factors to be considered.

Medical conditions tend to create havoc, and leave an appearance of a life left in tatters; but Federal Disability Retirement is a benefit which can bring about a stabilizing force of foundational security; and just like the Law of Salvage in maritime law, consideration in filing for Federal OPM Disability Retirement should be commensurate with the value to be received in salvaging one’s livelihood, career, and future contentment.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "Process" at the Reconsideration Stage

It is important to understand that the “process” of filing for Federal Disability Retirement, when it comes to the Second, or “Reconsideration” Stage, encompasses two factual prisms:  (1)  The application has now been denied (obviously, and for whatever reason — most likely because of “insufficient medical evidence”) and (2) it is the stage in the process prior to an appeal to the Merit Systems Protection Board. 

This dual prism of the stage, while self-evident, is important to keep in mind, because it requires a duality of duties:  A.  It requires (for the Disability Retirement Applicant) a duty to show something beyond what has already been shown, while B.  It requires the Office of Personnel Management to be careful in this “process” of review, because if OPM makes a mistake at this stage, then the likelihood is great that they will be required to expend their limited resources to defend a disability retirement case before an Administrative Judge, and if it becomes obvious that the case should have been decided favorably at the Second Stage, it reflects negatively upon the Agency.  OPM is an agency made up of people (obviously); as such, just as “people” don’t like to look foolish, OPM as an Agency made up of people, does not like to look “badly” or “foolish”.  This duality of factual prisms is important to understand when entering into the Second, Reconsideration Stage of the “process”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Use of Medical Reports

People often ask me whether or not a certain type of medical report should or should not be used.  As with almost all such questions, the answer is, “It depends”.  On what?  On the content; in the manner it is written; and by whom.

This latter basis is often a determinative one.  For instance, should a medical report from a Chiropractor be used in an CSRS & FERS Disability Retirement case?  Let me answer this question in a circuitous manner — I handled an MSPB case years ago where I had no “medical” doctors testify, but I had two chiropractors testify (I needed both of them, not because two makes better than one, but merely because they treated my client in sequence over the relevant period of time).  To the great consternation of the OPM representative, we won the case.

Thus, chiropractors can provide valid medical opinions, and the MSPB has accepted the testimony of chiropractors — as well as therapists — standing alone, without the primary support of a medical doctor.  However, my customary approach in the utilization of therapists and chiropractors, as well as physicians’ assistants, nurses, etc., is that they are most effective as secondary support to a primary medical narrative from a medical doctor.

This will often present an interesting conundrum in that, often, chiropractors and therapists will write the more detailed, substantive, and interesting report than the medical doctor.  That is okay.  To use such reports as a piggy-back upon the short, concise and straightforward medical report is often the best way to use such valuable resources.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Specific Denial II

It is important to always “define”, “corner”, and “circumscribe” any denial from the Office of Personnel Management.  If you do not, then what happens at the next level is that it becomes a “de novo” process.  Now, one might argue that all disability retirement appeals to the Merit Systems Protection Board are de novo, anyway.  That is true enough — meaning, that all of the evidence is looked at “anew” and without prejudice from any previous finding by the Office of Personnel Management. 

Yet, there is the “legal” definition of de novo, and the practical effect of de novo; often, the Administrative Judge at the MSPB will, at a PreHearing Conference, turn to OPM and say, Listen, OPM, it seems that the only reason why it was initially denied was because of X, Y & Z; the applicant certainly answered X & Y in his/her reconsideration answer; is the only thing you are looking for is Z?  What this does is to narrow the issue.  Often, to save time, face, aggravation and other things, OPM will concede the narrowing of such issues, and this is true if you respond to their administrative queries by defining what they are asking for, then providing it to them, then showing how it has been provided to them, so that they are “cornered”.  Thereafter, if it gets denied and it needs to go to the MSPB, the Hearing can then proceed with a narrower, streamlined and limited number of issues to prove.  Again, the reason why it is important to define what it is that OPM is asking for, is not only for the “present” case, but in preparation for the potential “future” case.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Economy

I have been asked, via multiple emails, of my opinion concerning the right time to file for disability retirement, given the state of the current economy. I am not an economist; I am an attorney who specializes in obtaining disability retirement benefits for Federal and Postal employees under FERS & CSRS. With that prefatory caution, let me state that I am an optimist, and always see the glass as “half full” as opposed to “half empty”.

First, if a Federal or Postal employee can no longer perform the essential elements of one’s job, then it is probably time to file for disability retirement. Second, while disability retirement does not pay a great amount of money, it is a base annuity which allows one to go out and start a “second career”, and make up to 80% of what a person’s former position presently pays, on top of the disability annuity. Further, because disability retirement allows one to retain one’s health insurance benefits, such an individual can be an attractive candidate to a private employer, because of the lack of need to insure the person in the course of his/her the second career. Third, in a tough economy, part-time employment is often more available, and so it is often a good economy for individuals who have a base annuity to rely upon, and who are looking for supplemental income. In any event, one should always look at disability retirement benefits as an opportunity to preserve one’s deteriorating health, and move on to pursue other avenues of opportunities.

Sincerely,

Robert R. McGill, Esquire