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

FERS & CSRS Disability Retirement for Federal and USPS Workers: Overlooking an Essential Element

Potential applicants who are considering filing for Federal Disability Retirement benefits under FERS or CSRS will sometimes ask the question, What are the essential elements of one’s job?

Sometimes, the answer to the question is often easy to identify, especially if there are unique and distinct features to a particular type of Federal or Postal job.  Other elements are sometimes so obvious that they are overlooked — such as the fact that one must be able to work full time at a job.

Thus, the fact that a Federal or Postal worker is able to work 4 hours a day, or 6 hours a day, and be able to perform all of the other essential elements of his or her job, does not preclude one from being eligible for Federal Disability Retirement benefits under FERS or CSRS.

Further, if the Agency is being “nice” and “accommodating” by allowing for the remainder of the hours to be covered by sick leave or even LWOP, does not preclude the Federal or Postal employee from filing for, and being eligible for, Federal Disability Retirement benefits under FERS or CSRS.

Being able to work full time in a full time position is an essential element of the job.  Don’t overlook the obvious; the obvious is often the gateway to success.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Law and Language

Language is the playground of the Attorney.  It is the heart and soul of his or her profession.  Through language, the attorney describes, delineates, argues, and provides a sequential (hopefully) rebuttal and attack upon any attempt by the “opposing” forces or the named “adversary” to undermine one’s logically structured application — in this case, an application for Federal Disability Retirement benefits under FERS or CSRS.  While logic and argumentation are the chosen methodology of attack, it is the stringing of descriptive words to create concepts; the sequencing of concepts in order to provide complex compounds of winning arguments; and the totality of language in order to convey meaning, persuade and bring about agreement. 

In Administrative Law arenas, especially in the law of Federal Disability Retirement, it is especially important to have the ability to describe, delineate, argue and persuade — because the package of persuasion is in written format — and the reader (a claims clerk at the Office of Personnel Management) does not know the disability retirement applicant personally, and only comes to know the issues, the person, the medical condition, and the intertwining compexity of the medical condition upon the person, through the words which are put together.  As such, how a Federal Disability Retirement packet is put together, which words are chosen, too few, too many, and what definitional arrows are meant to be conveyed, not only comprise part of a Federal Disability Retirement application; in many ways, it comprises the entirety of the process.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Again — Reminder as to the Statute of Limitations

I have many, many people who are on all sides of the spectrum concerning the time-line of filing for Federal Disability Retirement benefits under FERS & CSRS — people who call me 2, 3, 5, sometimes 10 years after being separated from service, saying they were never informed about the benefit of Federal Disability Retirement benefits.  Obviously, such former Federal employees cannot now (except in extremely peculiar and rare circumstances) file for Federal Disability Retirement benefits, under either FERS or CSRS. 

Then, there are those who are still “on the rolls” — those who have never been separated (normally because of the negligence or neglect of the Agency) from Federal Service, who call to ask whether they can file for Federal Disability Retirement now.  The answer is most often, Yes, and furthermore, once the disability retirement is approved, the annuitant can receive back-pay all the way back to the last date of pay.  Then, there are those who call me in a state of panic, saying that it has been almost a year after the injury; is it too late to file?  No, it is not too late, so long as it has not been over one year from the time of separation from service.  Thus, here is a reminder (again):  A Federal or Postal employee has up until one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS, from the time of being separated from Federal Service — meaning, when you have been terminated from being a Federal or Postal employee, and are off of the “rolls” of the agency.  I don’t know how to make this any clearer.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: The Futility of Waiting for an Agency

In Federal Disability Retirements, the general rule is as follows:  waiting for your agency to act in some way that may prove to be beneficial to your case, is an act of futility.  Whether it is to wait for a performance appraisal; whether to see if the Agency will accommodate you, or not; whether you are waiting for a response from your Supervisor to see if he or she will support your Federal Disability Retirement application, etc. — in the end, a disability retirement application under FERS or CSRS is a medical issue.  It is not an “Agency Application for Disability Retirement”; it is not a “Supervisor’s Application for Disability Retirement”.  It is a medical disability retirement, inseparable from the Federal or Postal employee who is filing for the benefit.  As such, the proper focus should be placed upon the sufficient and substantiating medical documentation.  If the medical documentation, combined with the applicant’s statement of disability, are persuasive with respect to the correlative force of being unable to perform one or more of the essential elements of one’s job, then such a combined force makes all other issues essentially moot and irrelevant.  Don’t wait upon an agency to act; to act affirmatively without depending upon the agency is always the best route to follow.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Filing II

People often come to me at the 2nd (Reconsideration) Stage, or the 3rd (Merit Systems Protection Board) Stage, and ask that I correct the mistakes made in the initial filing. Most mistakes can be corrected. Of course, it would have been better if the Applicant had done it properly the first time, for once the Office of Personnel Management views something which should not have been submitted, it cannot be easily retracted — only further explained.

There are, moreover, certain mistakes which cannot be “explained away” — such as deliberate omissions or deceptions. Thus, if the Office of Personnel Management gets the idea that there is an element of deceptiveness in a disability retirement application — either through omission or deliberate avoidance of an issue — then it becomes a difficult case to win. Honesty is always the best policy, and no Disability Retirement applicant should ever engage in any act of covering up any information. This is conceptually different from emphasizing the elements in a disability retirement application which favor an approval, as opposed to de-emphasizing those elements which tend to obscure the primary elements of an application. Such artful emphasis/de-emphasis should always be a part of every disability retirement application, coordinating the Applicant’s Statement of Disability with supporting medical documentation, to convey a consistent “whole” to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Filing

Never be deceptive in your filing. Always be truthful. To be deceptive or untruthful will harm your credibility, your case, and ultimately, may defeat your ability to obtain disability retirement benefits. Now, there is a conceptual distinction between being “truthful” and emphasizing certain issues of your case, while leaving certain other issues as secondary and less prominent in the documents & supportive papers filed. Thus, to take a rather crude example, while everyone in the world spends a great deal of his or her life in the restroom, we rarely — if ever — talk about such events. Is it because we are not being “truthful”? No — instead, while it is an issue which is not emphasized, it is not something which we are also being deceptive about.

Thus, with respect to disability retirement issues, one should never deliberately attempt to mislead, hide, or otherwise “expunge” certain aspects of the disability retirement application. At the same time, however, those aspects which are not very helpful, or which may harm your case, should not be placed in bold-type or underlined in red. Wherever possible, those aspects which will weaken your case, should simply be de-emphasized — but never deliberately hidden.

Sincerely,

Robert R. McGill, Esquire