Federal and Postal Disability Retirement: Targeted Use of Collateral Evidence

Case-law from the U.S. Merit Systems Protection Board, as well as judicial opinions rendered by the U.S. Court of Appeals for the Federal Circuit, maintain the standard of acceptable proof for a Federal Disability Retirement case submitted to the U.S. Office of Personnel Management, for Federal and Postal employees under either FERS or CSRS.

The primary basis for a Federal Disability Retirement application is clear:  A medical condition which exists, which prevents the Federal or Postal employee from performing at least one, if not more, of the essential elements of one’s job; that a legally viable accommodation is not possible; that reassignment to another position at the same pay or grade is not reasonably feasible; that the medical condition will last a minimum of 12 months; and that the Federal or Postal employee must file for such benefits during the tenure of one’s employment as a Federal or Postal Employee, or within 1 year of being separated from Federal employment.

The core of one’s proof is generally based upon the treatment and opinion of one’s treating doctor.

Every now and again, however, there are “collateral” sources of proof which should be considered, and for various reasons, which must be relied upon for establishment of one’s eligibility for Federal Disability Retirement benefits.  Such proof may include: opinions rendered by Second-opinion or “referee” doctors in an OWCP case; percentage ratings provided by the Department of Veterans Affairs; SSDI approval determinations; separation from the Agency based upon one’s medical inability to perform the essential elements of one’s job; medical notes for FMLA; and even (sometimes, but rarely) a decision granting disability benefits by a private insurer; and other such collateral sources of proof.

Such proof, of course, should never replace the centrality of one’s own treating doctor, and further, should always be targeted and submitted with discretionary judgment.  Sometimes, it can be the “other evidence” which makes the difference in a case; other times, if used indiscriminately, can be an indicator of the weakness of one’s case.

Be careful; be targeted; use discretion.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: A Hypothetical

The case-law opinions from the U.S. Merit Systems Protection Board, as well as from the U.S. Court of Appeals for the Federal Circuit, upholds the statement added onto Question 4 of Standard Form 3112A, the form which specifically requests the Applicant’s statement of disability, which asserts:  “We consider only the disease and/or injuries you discuss in this application”.

Failure to identify a particular medical condition can have an adverse impact upon one’s application for Federal Disability Retirement benefits.

Take the following hypothetical: a Federal or Postal employee is terminated from Federal Service; he or she files for Federal Disability Retirement benefits within one (1) year of being separated from service.  While the Statute of Limitations has already been met because the filing has occurred within the 1-year timeframe, during the process of awaiting a decision from the U.S. Office of Personnel Management, the treating doctor has diagnosed with greater specificity the primary and underlying cause of the medical condition.

In his or her haste to file, the (now former) Federal employee quickly noted the diagnosed medical conditions in response to question 4, but nowhere is there an indication of the newly-diagnosed medical condition.  During the wait, it is now more than 1 year from the time of separation.  The quandary:  The Federal Disability Retirement application cannot be withdrawn, because the 1-year Statute of Limitations has already passed, and so he or she is no longer able to re-file.  No additional medical conditions can be added onto the SF 3112A.

Is there a problem? The answer:  Under this hypothetical, potentially yes.

Even if OPM approves the case, there may be future difficulties if OPM approves the Disability Retirement application based upon a medical condition listed, but resolved.  Care in identifying and properly annotating the medical conditions must be taken in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Advice and Guidance

The worth of advice is unique in that it is valued based up multiple facets of judgments: the source of such advice; the reputation and historical successes of that source; the soundness of the advisory statement, based upon all information available; and, ultimately, the receptiveness of such advice on the part of the person who seeks it. When advice falls upon deaf ears, of course, then the very value and effectiveness of such advice has been lost forever.

In the legal arena, there is an added component — that the attorney is unable to, for obvious ethical reasons, to render advice unless there has been established an attorney-client relationship.  The “obvious reasons”  have to do with the fact that proffering advice in particular circumstances can only come about if and when an attorney has received the confidential and specific information pertaining to a “client”.  Guidance of a general nature, without reference to individualized details, can be given in a generic sense.

In Federal Disability Retirement law, where each case is unique because of fact-specific medical conditions, position descriptions which are impacted by the particularized medical conditions of the individual case, and the nexus which must arise with the interaction between the two — because of this, legal advice must be tailored within a context of an attorney-client relationship.

General guidance can be given; but the Federal or Postal employee seeking help in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, should understand that the importance of getting good legal advice is dependent upon the value and worth the Federal or Postal employee places upon his or her unique and individualized case.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Specialization, Focus & the Attorney

In preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS from the Office of Personnel Management, the Federal or Postal employee will often retain the services of an attorney precisely for the focus which must be placed upon the compilation of the entire packet. It is, moreover, a field requiring specialization, and one which necessitates knowledge of the particular rules, regulations, and procedural processes which must be understood, maneuvered through, and ultimately complied with.

The reason why local attorneys are rarely found in assisting for the preparation, formulation and filing of a Federal Disability Retirement application, is that there are not that many attorneys in the general population of attorneys who have specialized in the field of representing Federal or Postal employees in Federal Disability Retirement law.

This is a Federal issue, not a state issue. Most issues of law require a local attorney who is licensed to practice law in the particular state in which the issue arises. For Federal issues — and Federal Disability Retirement constitutes a Federal issue — what is required is a licensed attorney (from which state is irrelevant) who has the specialized knowledge and focus in order to effectively represent the Federal or Postal employee who is attempting to show by a preponderance of the evidence that he or she is eligible and entitled to Federal Disability Retirement benefits under the laws governing such benefits.

A general practitioner of law will rarely be sufficient; a local attorney who has never encountered the maze of bureaucratic procedural requirements may, with research and diligence, become competent in understanding the rules and statutes governing Federal Disability Retirement, but for purposes of properly preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to have a singular focus upon the specialized field, in order to be immediately effective and be able to have the applied knowledge to attain the outcome-successful end in mind.

Focus, specialization and the attorney — it is a tripartite combination which the Federal or Postal employee who is seeking to prepare, formulate and file for Federal Disability Retirement benefits under FERS or CSRS which should be carefully considered.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Clarifying Misconceptions

Information is interesting.  But not all interesting information is useful.  And, further, not all information, even if interesting and (potentially) useful, is accurate.  Ultimately, in order for information to be of practical use, it must be accurate, useful, and purpose-related.  Thus, when inaccurate (partial or complete) information is placed into the public domain, it often becomes useless, but remains interesting to the extent that people continue to rely upon such information.

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to obtain, process, and apply useful and accurate information.  Two sets of basic information need to be clarified:  First, many Postal and Federal employees have been confused about SSDI and its impact upon Federal Disability Retirement and the application process in preparing, formulating and filing for Federal Disability Retirement benefits under FERS (CSRS exempted because an SSDI receipt is not necessary).  Showing a receipt for having filed an SSDI application is all that is needed.  An approval is not necessary; and, indeed, for most Federal and Postal employees, one will not ordinarily qualify for SSDI precisely because it has a higher standard to be eligible.

Further, a sequential showing is NOT necessary — i.e., one does not have to first file for SSDI in order to file for FERS Disability Retirement benefits.  All that is necessary, from OPM’s perspective, is that at the time of an approval of a Federal Disability Retirement application under FERS, a Federal or Postal employee must show a receipt showing that one has filed for SSDI benefits.

The Second informational error to be corrected:  While somewhat redundant based upon the first, a Federal or Postal employee does NOT have to be approved for SSDI in order to file for Federal Disability Retirement benefits under FERS.  That would be pointless and illogical, if one stops and thinks about it.  Again, all that is necessary is that one files, and one shows a receipt at the time of an approval of a Federal Disability Retirement application under FERS.

Yes, this is the information age; but it still comes down to a human being who places the information into the public domain, and the

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Chasm between Denials

From the perspective of an individual Applicant for Federal Disability Retirement benefits under FERS & CSRS, the individual applicant does not normally observe some other person’s Federal Disability Retirement application, and therefore never has the opportunity to see the “greater process” at work, or patterns of behavior on the part of the Office of Personnel Management.  Yet, there are indeed patterns, and that is why an experienced attorney who has seen literally thousands of Federal Disability Retirement cases over numerous years, has an advantage in responding to OPM’s denials.  Experience lends itself to greater observation.  Experience over time reveals certain patterns.  And patterns of behavior can reveal important principles. 

Certain OPM Representatives provide detailed and (often) irrelevant factual references which can be ignored; others like to “cite the law” and believe that such citations appear irrefutable and authoritative; and still others give scant discussion to laws or to facts.  Thus, there often appears to be a great chasm between the types of denials.  Whether or not there are such differences, an applicant who has received a denial for his or her Federal Disability Retirement case needs to respond to any such denial with a three-pronged attack:  Medical refutation; Factual correction; Legal assertion.  Such an attack will cover any chasm which might exist between the different individuals who send out a denial letter.  More importantly, it will cover the necessary elements for winning a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire