FERS & CSRS Disability Retirement for Federal and USPS Workers: New Faces

Old timers will often smirk cynically and observe:  Time will cure them of such a naive perspective.  Or, to paraphrase a famous line from a well-know Christmas movie, Youth is wasted on the young (hint:  the scene were Jimmy Stewart is throwing a rock at the old abandoned house).  Youth and inexperience are often accompanied by enthusiasm and a fresh perspective. Lack of knowledge is compensated — some would say “overcompensated” — by an eagerness which sees no boundaries or obstacles.

There are clearly some new hires at the U.S. Office of Personnel Management as of this date, and their unique approach in viewing and evaluating a Federal Disability Retirement application, whether under FERS or CSRS, must be contended with.

The fundamental problem with newcomers is not that they don’t know what they are doing; rather, it is often the converse — they think they do know what they are doing, and when girded by a list of criteria which is applied in an inflexible fashion, one often gets blinded by the confusion of the forest while having a myopic view of an individual tree.  The great equalizer in countering lack of knowledge, fortunately, is the law itself; and while a list of applicable criteria provided to a fresh face may well assist the OPM employee to evaluate a claim, it can never replace the necessity of knowing the law.

For anyone filing a Federal Disability Retirement application with the U.S. Office of Personnel Management, now constitutes the time to employ all of the tools which the compendium of cases decided, and statutes reinforced, accord in arguing one’s case.  Time will certainly tell, but for the present, it is advisable to dot all I’s and cross each T, carefully and with great scrutiny.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Waiting upon the Office of Personnel Management

A Federal or Postal worker who is filing for Federal Disability Retirement benefits under FERS or CSRS must understand that the waiting portion of the entire process is probably the most difficult time, precisely because it is a time of inactivity, where one’s future plans are placed on hold because of the uncertainty of the decision.  

Everyone, of course, believes that his or her Federal Disability Retirement application has merit. Otherwise, a Federal Disability Retirement application, whether under FERS or CSRS, should never have been prepared, formulated, finalized and filed — but for the strong belief that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job.  

Every Federal or Postal employee whom I represent believes that his or her case is a “slam dunk” case, and it is the job of an OPM Disability Attorney to present it as such, but within the limitations of what the doctor & other supporting documentation will provide.  Once a Federal Disability Retirement application has been filed with the Office of Personnel Management, then the destiny of one’s future plans is somewhat placed in the hands of the OPM benefits clerk.  

Activity often gives the appearance of progress, and inactivity presents a frustrating sense of powerlessness.  But waiting is part of the process.  As such, it is best to make plans, prepare for one’s future in other ways, and allow the Office of Personnel Management to review one’s case properly and thoroughly.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Applicant’s Statement — from the Generic to the Specific

In preparing, formulating, finalizing and filing a Federal Disability Retirement application under FERS or CSRS, one must (of course) describe and delineate the “bridge” between one’s medical condition(s) and how it impacts or prevents one from performing one or more of the essential elements of one’s job.  This is done on the Applicant’s Statement of Disability (Standard Form 3112A, both for Federal and Postal employees under FERS or CSRS).

In formulating and describing the impact upon the essential elements, or core job duties, of one’s position, it is often an intelligent approach to begin with the generic, then to provide some specific examples.  This is more of an issue of “form” over “substance”, of course, but is often effective, nonetheless.

By way of this approach in describing one’s medical conditions and their impact upon the essential elements of one’s job, it provides a clarity of understanding for the clerk at the Office of Personnel Management — of first being provided with an “overview” of what the job entails, then to be given specific examples within the context of the overview.

Ease of understanding and a compelling force in telling a narrative story of one’s personal experience in having a medical condition, and its impact upon one’s professional life, will enhance the chances of an approval at the First Stage of the process in fling a Federal Disability Retirement application under FERS or CSRS, at the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Sometimes, It’s “The Law”

An assumption is often made that the “Disability Specialist” at the Office of Personnel Management who reviews the Federal or Postal Disability Retirement application understands, comprehends, and applies the laws governing Federal Disability Retirement applications.

Now, such an assumption may be logical and reasonable, to the extent that one thinks (A) that those who aspire to working in a specific specialty have some knowledge or understanding of the specialty, and (B) if a decision is made which involves discussing “the law”, one presumes that the mere discussion of it proves some knowledge of it.

The problem with such reasoning, however (apart from the popular tripartite acronym which originates from the word “********-u-me”), is that it betrays the facts:  often, from reviewing the denial letters generated from the Office of Personnel Management, it is painfully clear that the administrative specialist, the legal specialist, or whatever other “specialist” designation has been embraced by the worker at the Office of Personnel Management, simply fails to apply all of the applicable laws which govern Federal Disability Retirement applications.

This is understandable, to this extent:  OPM representatives (other than those representing OPM at the MSPB level) are not lawyers, and as such, do not keep up with the latest evolution of the laws governing Federal Disability Retirement issues.  Whether that is a good thing or a bad thing, is another matter altogether.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Reconsiderations

When a Federal Disability Retirement application under FERS or CSRS is denied at the first stage of the process, a Federal or Postal worker who filed for the benefit has the administrative right to request that it be “reconsidered” by the Office of Personnel Management.  Once requested, the case file is turned over to the “Disability Reconsideration Branch” of the office, and will be reviewed and evaluated by a Disability Specialist — not the same person who reviewed it at the Initial Stage of the process. 

A person who has filed for Federal Disability Retirement benefits has thirty (30) days to Request Reconsideration.  While the 30-day period may arguably have some flexibility based upon when the applicant actually received the denial letter, it is nevertheless a good policy to adhere to the 30-day time-frame by counting the date of the denial letter as the “beginning” date.  Obviously, it is better NOT to be placed in a position of having to argue whether or not the applicant met the 30-day deadline.  Further, it is best to send it in via a means where confirmation of receipt can be shown.  OPM is a large bureaucracy, and things get lost in the morass of the volume of submissions.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: The Overstated Case

An overstated case can literally overwhelm the Disability Specialist who is assigned to review and decide upon a Federal Disability Retirement application under FERS & CSRS.  Indeed, the sheer size of a voluminous Disability Retirement packet can appear daunting, intimidating, and ultimately one which may find itself at the “bottom of the stack” of cases.  If this happens, then the result can be an approval or a denial; as to the former, it may well be that the quantitative appearance made it appear substantive in a qualitative manner; or it could be that the OPM Representative came upon a self-imposed deadline and decided that it was time to dispose of it, and approve it.  More likely, however, is the outcome of a denial — for, what a voluminous Disability Retirement packet normally reveals, is that it is not a simple connection between one (or perhaps two or three) medical conditions, and their impact upon a Federal or Postal employee’s inability to perform one or more of the essential elements of one’s job.  Instead, the thickest packet of them all likely means that there is alot of fluff and superfluous material — and if the OPM Representative has to search to find the meat of the matter, it may well be thrown into the dustbin of denials.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Unequivocal Doesn’t Mean That One Is “Right”

In a denial letter from the Office of Personnel Management, the Claims Specialist/Representative will often make statements in confident, unequivocal terms.  “You have not…”   “The medical evidence fails to show…”    “Your doctor never…”   “The law requires that you…”  Such a voice of unequivocal confidence often leaves the impression that there is no room for argument; that the case is lost; that there really is no point in even attempting to argue with the Office of Personnel Management.  Nothing could be further from the truth. 

Merely because an individual makes statements in an unequivocal manner, is not a basis for determining the truth or falsity of his or her argument.  In a Federal Disability Retirement application under FERS or CSRS, there is almost always room for disagreement.  We are speaking about interpretation of medical documents, the significance of what is said, etc.  We are talking about the different and proper application of the OPM Disability law, and the multitude of case-law which would be applicable.  Don’t let the voice of a statement fool you as to the validity of the statement.  In a Federal Disability Retirement case, the Office of Personnel Management is rarely right; they just like to sound like they are.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Complex Case

It goes without saying that each case of preparing and filing a Federal Disability Retirement application under FERS or CSRS is a “complex case”.  There are multiple intervening issues, including peripheral issues encompassing OWCP filings; issues with SSDI and whether to aggressively pursue it even with the offset and the lower cap for earnings; EEOC filings and collateral issues which may or may not have a direct impact upon the issues which must be focused upon in filing for Federal Disability Retirement benefits.  It is the job of an OPM Disability Attorney to tailor the issues, such that the peripheral issues do not overwhelm and dictate the centrality of a case; and to ensure that the central focus remains like a magnifying glass upon those issues which are relevant, not only to the client and to the entire process, but most importantly, to the person reviewing the case at the Office of Personnel Management.  Whenever an inquiry begins with the statement, “Mine is a rather complex case,” I realize that the primary job is to try and simplify the complexities, and that begins with narrowing the issue down to the single focus of the reason why the caller is calling in the first place:  the medical condition, and how that medical condition impacts one’s ability to perform one’s job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Decisions

One would like to think that the Office of Personnel Management takes each case independently, reviews each case according to the merit of that particular case, and that, based upon a fair, independent and careful evaluation process, a decision is made for an approval or disapproval.  When a decision from OPM reaches a Federal Disability Retirement applicant under FERS or CSRS, that applicant will see such a decision, and that decision alone.  When an attorney who specializes in OPM Disability Retirement sees such a decision, it is clearly based upon a template, and after viewing thousands of such template-based decisions, a pattern begins to develop. 

Templates are not in and of themselves a negative thing; one need not “reinvent the wheel” each and every time.  It is only when a template does not “fit” a particular case, or where it is clear that a decision contradicts the substantive content of the disability retirement application or the documentary attachments, that there is any negative issue with a template.  Fortunately, most OPM decisions are fair and properly evaluative; every now and then, however, it is evident that a template-driven decision has been issued without thought or fair analysis.  That is when a true problem has arisen.

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