OPM Disability Retirement Attorney: The Aftermath

We like to think in linear prose; that is why, when E. E. Cummings showered the literary world with typographical disarray, a collective groan of discomfort visibly shook the foundations of the art form.

In daily life, it is the capacity of seeing a beginning, continuum and conclusion to a segment of a bifurcated visual horizon, which makes for sanity.  Closure and a sense of termination allows for satisfaction of an accomplished deed.  To be required to maintain a project, a task, an obligation, etc., is to engage in an eternal hell of unendurable agony; but that is, in the end, what must be done for most things, which is precisely why life is a challenge of inestimable proportions.

Federal Disability Retirement is no different; once obtained, one would like to think that closure has been accomplished, and that life is nothing more than forward-looking deeds to be reached like ski slopes allowing only for downward spirals of travel, never needing to look back.  But maintenance of effort is always a requirement; making sure that one is preserving the rights which one has fought so hard to gain, is a daily task, a present obligation, and a necessity of life in Federal Disability Retirement law, as in other sectors of life.

Whether to recognize the earned income cap for Federal Disability Retirement annuitants while still under a certain age, or making sure to be able to re-certify one’s ongoing medical condition and disability — these are never tremendously onerous tasks, but ones which can only be satisfied if one is fully aware of the laws which govern them.

Filing for Federal Disability Retirement benefits by the Federal employee or the U.S. Postal worker, whether under FERS, CSRS or CSRS Offset, is the first step in securing one’s future; the aftermath is the second and many subsequent steps, in ensuring the viability of that which one fought for in the first place, lest history should be repeated and goblins be allowed a resting place where none should be.

Sincerely,

Robert R. McGill, Esquire

 

Federal & Postal Disability Retirement from the U.S. Office of Personnel Management: Continuity of Care

Most things in life require a continuity of care.  Yes, projects will often have an inception date, and termination point where, once completed, no further maintenance of effort is required.  But other concerns require further and elaborative engagements beyond the linear horizon of attendance, including:  teeth, dogs, children, marriages, and Federal Disability Retirement benefits.

When a Federal employee or U.S. Postal worker obtains that vaunted and desirable letter of Approval from the U.S. Office of Personnel Management, whether the Federal or Postal worker is under FERS, CSRS or CSRS Offset, the tendency is to think that one may then fade into the proverbial sunset, ever to receive a Federal Disability Retirement annuity and focus upon one’s health, medical conditions and the medical care required.

But then there comes additional contacts from OPM — perhaps not for a few years; perhaps not for a decade.  But the potentiality of the contact is there, and one must lay down the framework of preparatory care in order to respond appropriately.  If not, what will happen is this:  A fairly innocuous request for employment information can result in a termination of the disability annuity, based upon a “finding” that you have been deemed medically recovered.

That “Final Notice” from the Office of Personnel Management does, fortunately, allow for Reconsideration rights, as well as further rights of appeal to the U.S. Merit Systems Protection Board.  Additionally, there is a proper methodology for responding to OPM, to enhance and greatly ensure the continuation of one’s Federal OPM Disability Retirement benefits.

Wrong steps can lead to negative results; unresponsive panic without proper legal argumentation can have the unwanted consequences of an unnecessary loss of one’s Federal Disability Retirement annuity.  The best approach is always to respond with the legal armaments and arsenal one is provided with, and to maintain a continuity of care for preserving one’s Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

 

Medical Retirement for Federal Workers: Preserving One’s Rights

Often, loss of vigilance occurs as a result of the relief of attaining something; once gotten, the fight to get it suddenly disappears, and the overwhelming sense of relief is likened to the response of a balloon which deflates upon a pinprick.

But vigilance is the key to ongoing success.  There is never a time to be nonchalant; to attain is merely another step in a process, and that process must be fought for just as diligently as during the time of fighting to reach a goal.

For Federal and Postal workers who are preparing to file, or who are in the process of filing, for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the goal of getting an approval from OPM for a Federal Disability Retirement is merely an intermediate step.  Once attained, the goal is to preserve and to protect.  Fortunately, that is a fairly simple matter — one of maintaining regular contact with one’s doctor; of making sure that one’s doctor will continue to support one’s case in the event that the Federal or Postal annuitant receives a medical questionnaire from OPM.

OPM disability retirement is not like OWCP; because you are allowed to work at other employment and make up to 80% of what your former job currently pays, there is normally nothing wrong with engaging in normal activities which would violate any rules (unlike OWCP cases, where investigators will often videotape individuals to show the engagement of activities contrary to medical restrictions, etc.).  But let not victory lead to lack of continuing vigilance; as that which was won can only be maintained with an attitude similar to keeping to the path which guided one to achieve the goal in the first place.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Post Disability Retirement Issues

Often, there is a collective sigh of relief once a Federal Disability Retirement application is approved, such that the newly designated and identified Federal Disability Retiree or “annuitant” forgets that, just as it was important to be scrupulously vigilant in attempting to obtain Federal Disability Retirement benefits, so it is just as essential to remain attentive in maintaining and retaining the benefit itself.

Thus, the Federal Disability Retirement annuitant should presumptively expect to be selected in the future to answer a Medical Questionnaire.  Such presumption of receipt will enable the former Federal or Postal Worker to keep the necessary focus, and thus the benefit.  It will often come every 2 years or so, if at all, and will request an update of the status of the medical condition, the prognosis, and whether the annuitant has recovered sufficiently to return to one’s former job, or any similar job that the Federal Disability Retirement annuitant worked at previously.

It is therefore important to continue to foster, maintain or establish anew the doctor-patient relationship, such that if and when a Medical Questionnaire is received, the entire process does not become an unforeseen emergency.  Preparing, formulating and filing for Federal Disability Retirement benefits required a significant investment of one’s energy, time, savings, and attention; vigilance in continuing to retain such a benefit deserves no less.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Obtaining, Maintaining and Preserving

Just as preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is an administrative process — as opposed to an “entitlement” where a simple act of filing or meeting an automatic requirement makes one eligible and entitled — where one must prove by a preponderance of the evidence that the Federal or Postal employee meets all of the legal criteria for eligibility; similarly, once the Federal or Postal employee obtains the Federal Disability Retirement benefits, it is a “process” which one must be prepared to embrace, in order to maintain the continuing viability of one’s Federal Disability Retirement benefits, and further, in order to preserve the right to retain and continue to receive the Federal Disability Retirement benefits.

That is why it is important to understand the entirety of the administrative process — not only in obtaining the benefit itself, but to ensure future compliance with the statutes, regulations and case-law.  While legal and on-line resources are certainly available and abound with information, ultimately those very resources must be applied; and in order to apply them, they must be interpreted by someone who understands the entirety of the administrative process.  “Trial and error” is often not the best approach in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, if only because the “error” may outweigh the benefit of the trial itself.

As such, it is advisable to consult with an OPM Disability Retirement attorney  who can guide one through the administrative process — not only at its inception, but in its continuing maintenance and retention of this benefit called, Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire
OPM Medical Disability Retirement Attorney

 

OPM Disability Retirement: Always the Long Term

Always remember that Federal Disability Retirement under FERS or CSRS must be looked at for “the long term”.  Even after one obtains and secures the benefits under Federal Disability Retirement (annuity, health insurance, etc.), one must always be vigilant in protecting the benefit — for you can always be selected randomly to answer a Medical Questionnaire.  I often tell my clients after securing an approval for his or her Federal Disability Retirement benefits, that now that you have it, you will never lose it unless you are “stupid”.  By “stupid”, I do not mean that it is impossible to lose it; only that you must be either recklessly careless, or thoughtless, in losing the benefit. 

There are different ways of losing the benefits received under Federal Disability Retirement:  the two most commons ways are —  making more than the allowable 80% of what your former job currently pays or failing to properly answer the Medical Questionnaire.  The former needs constant and careful planning when you get a job; the latter requires that you carefully monitor the answers provided by your treating doctor.  Whichever the case may be, it is important to take any correspondence received from the Office of Personnel Management seriously — whether before, during, or after the process of obtaining Federal Disability Retirement under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Long, Longer & Longest View

I have often spoken of the need to take the “long-term” view in filing for Federal Disability Retirement benefits under FERS & CSRS — both in terms of having patience for the inherently long process in terms of time, as well as in terms of preparing a case for not just the First Stage of the process, but further, for the second Reconsideration Stage, as well as for an Appeal to the Merit Systems Protection Board.  This “long-term” view is meant to prepare a potential applicant for what it means to file for Federal Disability Retirement benefits; to not be overly concerned if you are denied at the first, or even the second stage of the process; and to be prepared financially to weather the “long haul”.  In short, it is meant to prepare the potential applicant for the long, and longer, view of filing for Federal Disability Retirement benefits. 

It is also necessary, however, to prepare one’s self for the “longest” view — that of maintaining and keeping safe the disability retirement benefits once it is approved — by preparing to be randomly selected every two years or so with a periodic “review” with a Medical Questionnaire.  The Medical Questionnaire is an innocuous looking form, asking for an “update”, and giving you 90 days to respond.  Be cautious.  Be aware.  Take it seriously.  Don’t wait for the 89th day to begin responding to it.  None of my clients who have gotten his or her Federal Disability Retirement benefits has ever lost it; people who have gotten Federal Disability Retirement benefits on their own and have later lost the benefit, have come to me to regain it; I have been successful in recovering the benefit, in every case.  However, it is not always easy — if only because the disability annuitant initially thought that it was an “easy-looking” form.  Preparation for the “longest view” begins not upon receipt of the Medical Questionnaire; it begins at the very, very beginning — when one first decides to file for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Future Perspectives

People often act without forecasting prospective issues. In filing for disability retirement, it is important to take into account the emphasis and basis upon which one files for Federal Disability Retirement, because when an approval is given by the Office of Personnel Management, OPM identifies the specific medical disability upon which they granted the approval. As such, it is important for the applicant to base the application upon the medical condition/disability, in the sequence of importance, the most serious to the least serious.  This is important not only for purposes of winning disability retirement cases, but further, with a view to the future:  when the random Medical Questionnaire is sent to a disability retirement annuitant, if the medical condition upon which you were approved for was a minor, “least serious” medical condition, then 5 years or 10 years down the road, it may well have “resolved”, which puts you in danger of losing your disability retirement benefits.  This is why it is important to have a view to the future, and guidance and advice from an attorney is important in securing that future investment.  For, ultimately, obtaining disability retirement benefits which could potentially be the primary source of income for the next decade or two, is an investment for the future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Investment for the Future

Ultimately, whether or not this is an optimum time for an individual to file for Federal Disability Retirement under FERS or CSRS is a decision each individual must make, depending upon the specific circumstances. From a medical standpoint, of course, most individuals have no choice because he/she must file for disability retirement. From an economic standpoint, as private companies cut back and begin relying upon a part-time workforce without needing to pay for a worker’s health insurance benefits and other benefits, a Federal Disability Retirement Annuitant is a very attractive potential worker, indeed, because most such annuitants retain their own health insurance benefits.  Such an annuitant can go out and find a job making up to 80% of what his/her former job currently pays, and still continue to receive the disability annuity.  Further, while each individual must make a decision concerning hiring an attorney to help secure disability retirement benefits, it should always be looked upon as a long-term investment.  Disability annuitants may be chosen randomly every two years to answer a Medical Questionnaire, and it is equally important to retain the benefits, as it is to initially secure it.  These are all issues which must be considered carefully, as an investment for the future.

Sincerely,

Robert R. McGill, Esquire

OPM’s Medical Questionnaire and the Issue of Accommodations

In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations.

OPM’s Medical Questionnaire

At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence — that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully — is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.

Some basic rules in responding to OPM’s Medical Questionnaire:

Rule #1: Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.

Rule #2: Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it — why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.

Rule #3: Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations — one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.

Finally, Rule #4: Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”

Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.

Second Issue: Accommodations

Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “’subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.

The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.” In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term ‘vacant position’ in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.

I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired — a right — in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future — one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways: (1) view my website at www.FederalDisabilityLawyer.com; (2) email me at federal.lawyer@yahoo.com; or call me at 1-800-990-7932.

Sincerely,

Robert R. McGill, Esquire