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FERS & CSRS Disability Retirement: Hindrances

nospam@example.com (Robert R. McGill) — Fri, 20 Nov 2009 18:41:49 -0500

One would think that the Human Resources Department of the Agency from which a Federal or Postal employee is attempting to file a Federal Disability Retirement application, would be a "helpful" entity. It is indeed a baffling phenomena when one pauses and reflects upon it: What is the purpose of the Human Resources Department? Specifically, what existential purpose does a person serve, who has a positional designation of "Disability Retirement Specialist"? Let me attempt to answer the question in the way it is supposed to be answer: 1. The purpose of the Human Resources Department is to help the Federal and Postal employees of the Agency or Department of which they have been established. 2. The person who holds the designated job entitled, "Disability Retirement Specialist" is one who, theoretically, is there to assist in any way, within the legal confines established by the Agency, in as much as possible, to help the Federal or Postal employee to finalized and complete the disability retirement packet for submission to the Office of Personnel Management. Now, let me pose the following hypothetical: an H.R. person calls up and says, "I cannot forward the disability retirement packet because Box Number ___ on Standard Form _____ has not been checked." Does this sound like the Human Resources Department is fulfilling the existential purpose for which it was established? On the other hand, rhetorical questions are fun to ask, precisely because they are rhetorical, and allow one to expiate some build-up of frustrations on a Friday night, after a long week dealing with multiple agencies. Have a good weekend.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: OPM may say so, but... (II)

nospam@example.com (Robert R. McGill) — Thu, 19 Nov 2009 16:50:07 -0500

Then, of course, there are the multiple "other" issues which the Office of Personnel Management "says so", such as failure to pay the full amount of back-pay due; failure to compute the average of the highest-3 consecutive years correctly; reinstating the full amount of FERS once a person becomes no longer eligible for Social Security Disability benefits; arbitrarily and capriciously deciding that the medical report is not "good enough" in answering a post-disability approved, Medical Questionnaire; failing to compute the earned income in any given year properly, and thereby informing the disability retirement annuitant that he or she earned over the 80% limit of what the former federal employee's former job currently pays; and a host of other issues. My specialty is in obtaining disability retirement benefits for my clients; I only selectively get involved in post-disability annuity issues, but the point here is that the Office of Personnel Management has a track-record of being in error, in multiple ways, on multiple issues, in volumes of cases. It is thus important to recognize that the Office of Personnel Management is not an infallible agency. Far, far from it, they are merely made up of people who are subject to error, but often stubbornly so -- unless you counter their denial in an aggressive, but calm and rational manner. If a denial comes your way, do not get distressed; prepare your case well, and lay out the groundwork necessary to win.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: OPM may say so, but...

nospam@example.com (Robert R. McGill) — Wed, 18 Nov 2009 17:02:52 -0500

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter. Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied. "Did you file a Request for Reconsideration, at the time?" I ask. "No," is the answer. "Why not?" I ask. The typical answer? "Because I just thought there was no way to fight them on it." I used to be amazed at such answers, but after some thought, it makes sense. As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as "a sword" in the process of fighting for my clients. But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites "the law", and makes bold conclusions such as, "You do not meet the eligibility criteria under the laws governing disability retirement..." It all sounds convincing. It all sounds like any further action will be an act of futility. But just because OPM "says so" doesn't make it true, doesn't make it right, and certainly doesn't make it unwinnable. They may say you don't meet the eligbility criteria; I would argue otherwise.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: the level of objectivity

nospam@example.com (Robert R. McGill) — Tue, 17 Nov 2009 17:05:50 -0500

I was trained in Philosophy, first; obtained my undergraduate degree in Philosophy; then went on to graduate school to study Philosophy. Somewhere along the line, I decided to switch lanes and go to law school. However, the training I received in philosophy -- of symbolic logic; of the analytical discipline of evaluating the logical consistency, force, soundness and validity of argumentation and methodology of argumentation, has remained with me throughout my legal career. In recent years, I have found that logic, validity, soundness of arguments, and consistency of argumentation, has become a rare breed. Whether this has more to do with a greater lack of rigorous education, or the belief that there is little to distinguish between "objectivity" and "subjectivity", I do not know. I do know, however, that there remains, even today, a sense of the "integrity" of an argument. An argument's integrity is found in an objective, dispassionate description of a case. That is the role of an attorney -- to give the narrative of the Federal Disability Retirement applicant under FERS & CSRS a sense of proper context, a picture of objective validity, and a substantive presentation of the issues which are relevant: medical, life, impact, occupation, and the intertwining of each issue with the others, without undue and over-reaching emotionalism which can often undermine the very integrity of the narrative presentation.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: The Decision (again)

nospam@example.com (Robert R. McGill) — Mon, 16 Nov 2009 18:39:03 -0500

Yes, it is a difficult decision to make -- to come to terms with filing for Federal Disability Retirement under FERS or CSRS. It makes it all the more difficult when individuals wait until the last possible minute before calling up the attorney (me) to file for Federal Disability Retirement benefits. There have been a few times in the past (very few) when I simply could not take on a case with only a week left before the Statute of Limitations runs out. The only thing I can do at that point is to identify which forms to fill out (however imperfectly), and give the fax number and the address to Boyers, PA for the individual to file. Remember the important point: You can always make factual, medical and legal arguments after you have filed; you cannot make any arguments if you have failed to file on time. Of course, it comes with the territory -- as an attorney who exclusively represents Federal and Postal employees to obtain disability retirement benefits (there are many attorneys who practice Federal Disability Retirement law as one aspect of a larger practice which includes other areas of Federal Employment law), I understand how intertwining the medical condition is, with the anxiety and stress of filing for Federal Disability Retirement benefits, and how procrastination is often part and parcel of the medical condition itself. At the same time, however, I take pride in doing a good job; I like to service my clients; I like to see the successful outcome. As such, I am reluctant to take on cases where there is very little time to file. I have, and will, take on cases where the Statute of Limitations is about to run out, but there must be at least some time left.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The End Goal

nospam@example.com (Robert R. McGill) — Fri, 13 Nov 2009 23:19:54 -0500

The goal at the end of the process is to obtain that "approval" letter from the Office of Personnel Management. It resolves and sets aside the months of anxiety and stress compressed into a time of agonizing suspension from life's ability to move forward; for, during that time of waiting, one cannot "move forward", because without the knowledge of whether one can obtain the financial benefit of the Federal Disability Retirement annuity under FERS or CSRS, one cannot make the decisions in life to make plans for the future. It is of great satisfaction to an attorney to reach the "end goal" -- to hear from the client that he or she has received the letter of approval from the Office of Personnel Management, and to hear the relief and joy in the voice of one who finally sees "light at the end of the tunnel" constitutes great professional satisfaction for the representing attorney. It means that the proper medical narratives were gathered; that the description of the client's medical conditions and their impact upon the essential elements of one's job was properly formulated; and it means that the legal argument presented to the Office of Personnel Management was persuasive. Client satisfaction means alot to an attorney; for one who solely specializes in Federal Disability Retirement Law, to see the end product -- the obtaining of a Federal Disability Retirement annuity -- is of great professional satisfaction.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: How many should be listed II?

nospam@example.com (Robert R. McGill) — Thu, 12 Nov 2009 16:08:15 -0500

The listing of the medical conditions in a Federal Disability Retirement application, as it is descriptively written on the Applicant's Statement of Disability (SF 3112A) for FERS & CSRS disability retirement, to be submitted to the Office of Personnel Management, is a separate issue from the creative description of the symptoms which the applicant experiences as a result of the identified listing of the medical conditions. Thus, a distinction should be made between the "official" diagnosed medical conditions (which should be limited in number, for reasons previously delineated) and the multiple and varied "symptoms" which result from the listed medical conditions. Thus, while one may suffer from the medical condition termed as "Fibromyalgia", the symptoms can be multiple: chronic and diffuse pain; impact upon cognitive abilities, inability to focus and concentrate, symptoms which are often termed as "fibro-fog", etc. When the Office of Personnel Management approves a Federal Disability Retirement application under FERS & CSRS and identifies the specific medical condition by which it is approved, it will identify the medical condition, and not the symptoms. This distinction is important because, when an applicant prepares the narrative to show the Office of Personnel Management what he or she suffers from, the differentiation between conditions and symptoms is important to recognize when creatively and descriptively writing the narrative of one's medical conditions.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: How many should be listed?

nospam@example.com (Robert R. McGill) — Wed, 11 Nov 2009 17:16:27 -0500

I am often asked the question: How many medical conditions or disabilities should I list in my Applicant's Statement of Disability (SF 3112A)? This question is often preceded by another question and answer: What are your medical disabilities (me to the caller)? Answer: I have about ten of them (caller to me). Let me start out by giving some free advice: Don't list ten medical conditions. Don't list nine. Don't list eight. When the Office of Personnel Management reviews a Federal Disability Retirement submission under FERS or CSRS, the OPM Representative will review your disability retirement packet until it is approved -- and no further. Approval comes about upon a finding that one of your listed medical conditions disables you from performing one or more of the essential elements of your job. Now, sometimes OPM will find that a combination of 2 or 3 medical conditions disables you together: meaning that OPM perhaps found that while a single one did not disable you under their criteria, a combination of two or three did. Furthermore, it is important to understand that, because the medical conditions and disabilities upon which OPM makes their decision on will be the basis for future continuation of your disability retirement annuity (in the event that you receive a Medical Questionnaire in the future), it is important to limit the listing of one's medical disabilities on the SF 3112A to those conditions which will likely last for more than 12 months. Conclusion: It is important to sequentially prioritize the medical disabilities, in the order of severity, chronicity and duration. Further, it is important to NOT list the minor medical conditions which, while they may be aggravating, and have impacting symptoms, may not necessarily prevent one from performing the essential elements of your job.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Workplace II

nospam@example.com (Robert R. McGill) — Tue, 10 Nov 2009 18:12:13 -0500

In filing for FERS or CSRS Federal Disability Retirement benefits with the Office of Personnel Management, it is important to stay away from issues which may explicitly or implicitly characterize the particular medical condition as being "situational" in nature. However, this does not mean that the medical condition cannot have originated from, or been exacerbated by, the workplace environment. Remember that OPM disability retirement is not like OWCP/Worker's Comp -- the issue of causality, or whether the medical condition occurred as a result of your occupation, is not important to prove. However, sometimes, it is simply an indisputable fact that the medical condition originated from the workplace, or was exacerbated by conditions in the workplace. Such origination or exacerbations, once it takes on a "life of its own" and becomes chronic and pervasive such that the medical condition impacts a person both at the workplace as well as outside the workplace, then it has transformed into a medical condition beyond being merely "situational". Thus, that which originated as a "situational" medical condition may well no longer be a situational one. In such cases -- and that is normally the case in almost all medical conditions which begin as a situational disability -- there would be no problem with filing for OPM disability retirement benefits.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Workplace

nospam@example.com (Robert R. McGill) — Mon, 09 Nov 2009 18:39:53 -0500

When a Federal or Postal employee is considering filing for Federal Disability retirement benefits under FERS or CSRS, there are many and varying conflicting responses, wrapped and bundled in emotional turmoil, reactionary and concerned viewpoints, etc. Stories of a "hostile work environment", of discriminatory actions, harassing supervisors, etc., are often part of the "narrative" of a person considering filing for Federal Disability Retirement. One must be careful, however, that when the affirmative decision to file for disability retirement is made, that only those relevant aspects of the narrative be included in the final disability retirement packet. Things which do not provide a compelling basis for proving, by a preponderance of the evidence, the necessary criteria for meeting the legal standard to be approved for Federal Disability Retirement benefits under FERS or CSRS or, just as importantly, things which will harm a disability retirement application-- they should be left out of the final narrative. Such issues surrounding a "hostile work environment" or a harassing supervisor -- such perspectives or narrative formulations which come close to the dangerous precipice of showing that one's medical disability is merely a "situational" disability (those medical conditions which are specifically confined to a specific situation in a specific agency's office environment) -- should certainly be left out of the final narrative. This brings up a further point, which I have touched upon many times in the past: a person without an attorney to formulate the narrative in filing for Federal Disability Retirement benefits is often too close to his or her own case, and cannot objectively present the proper narrative to the Office of Personnel Management.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Indicators

nospam@example.com (Robert R. McGill) — Fri, 06 Nov 2009 22:38:24 -0500

If your weekends are spent for the purpose of recuperating just so that you can have the energy, strength, mental acuity, and sustained focus and attention to go back to work on Monday, then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if, after each day of work, you are so profoundly fatigued that you end up spending each evening just resting, unable to have any significant recreational enjoyment or time for relaxation, time with family, etc., then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if you must take sick leave, LWOP or annual leave every few days, or after a week of work, because you need the time off to recuperate, then that is a further indicator. Ultimately, each individual must make his or her decision as to the timing and whether one has reached a critical point where filing for Federal Disability Retirement benefits under FERS or CSRS is necessary. Different reasons for different people; different factors at different times of one's life.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Freedom of Retirement

nospam@example.com (Robert R. McGill) — Thu, 05 Nov 2009 18:49:15 -0500

In this tough economy, many people are rightly concerned that, upon an approval for Federal Disability Retirement under FERS or CSRS, that it will be difficult to "make up" the income with another job, even though a person under Federal Disability Retirement can earn up to 80% of what one's former Federal or Postal position currently pays. Yes, it can be tough; yes, the economy is a concern; but recessions ultimately come to an end, and while a job to make up the severe pay-cut may be long in coming, self-employment, to begin a start-up business, or to work part-time is often an excellent opportunity. Unlike having the larger percentage of pay under OWCP-DOL benefits, a disability retirement annuity under FERS or CSRS is indeed a greater pay-cut. But salary is not everything; the freedom of retirement, the ability to determine one's future, and not be under the constant and close scrutiny of Worker's Comp, accounts for much. Where some see a severe pay-cut, others see as an opportunity to begin a second career. And the price of freedom from those onerous fiefdoms of federal agencies is often better health, and greater enjoyment of one's freedom and retirement.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Right Questions (Part 2)

nospam@example.com (Robert R. McGill) — Wed, 04 Nov 2009 17:00:25 -0500

Beyond asking questions of one's self (financial; employment; future; whether one will last until regular retirement, etc.), it is also important to take a two-step process in preparing for a disability retirement application: First, to do your own, independent research (in this day and age, internet research is the obvious first step), and Second, to contact an attorney. By the time you contact an attorney concerning disability retirement issues, you should already have an idea as to what your intentions are. Hopefully, the attorney you contact will be experienced and knowledgeable concerning all aspects of Federal Disability Retirement laws under FERS & CSRS. There are many attorneys "out there"; some attorneys do work in Social Security, Federal Worker's Comp, etc. Other attorneys perform work in various Federal labor matters; and still others perform work in State and private disability insurance issues. Remember, Federal Disability Retirement is a specific, specialized field of law; it is best to retain an attorney who specializes and focuses upon your specific area of concern. Finally, in speaking with an attorney, you should come to a point of becoming "comfortable" with that attorney: and "comfort" comes only as a result of competent and confident advice -- advice that is consistent with the facts you have gather from your prior research on the matter.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: The Right Question

nospam@example.com (Robert R. McGill) — Tue, 03 Nov 2009 19:11:01 -0500

Often, a person who is contemplating filing for OPM Disability Retirement benefits under FERS or CSRS doesn't know the "right question" to ask in order to make a proper decision. Because a medical condition often leaves a person with daily and profound fatigue (both physical and cognitive), it is enough just to get through the day, come home and attempt to recuperate and regain enough strength to try and make it back to work the next day. Then, of course, there are the financial worries -- whether or not the disability annuity will be enough to support a family; whether a person will be able to supplement his or her income with a part-time job in this tough economy; or whether Social Security Disability benefits can be approved and, even with the offset, allow for enough income for some semblence of financial security. All of these questions -- or concerns -- are clearly legitimate ones, and provide a good foundation for determining the viability for filing for Federal Disability Retirement benefits under FERS or CSRS. But there are others, also: What will happen if you don't file for disability retirement benefits? Will you be placed on a PIP? Will you receive an unsatisfactory performance rating? Will you last until retirement age? If you last until retirement age, will you have the health necessary to enjoy your retirement? Is it time to start a small business venture in this tough economy, and if so, when the economy begins to recover, will your small business grow with a growing economy? Will your supervisor support your extended absences or over-use of sick leave for much longer? Is the work that is getting backed up placing more pressure on you, such that it is exacerbating your medical condition further? Think through the questions seriously. It may be time to file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire

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FERS & CSRS Disability Retirement: Differing Perspectives

nospam@example.com (Robert R. McGill) — Mon, 02 Nov 2009 17:42:26 -0500

The old adage, "Walk in your fellow man's shoes for a mile" is a saying which is meant essentially to teach a child (and many adults) to have a different perspective than one's own, self-centered universe. In practicing federal disability retirement law, it is a good idea to attempt to obtain a perspective from the multitude of differing "shoes" -- and this is especially important in putting together a Federal Disability Retirement application under FERS or CSRS. The gathering of such differing and different perspectives -- that of the treating doctor; that of the applicant; that of the Agency (the Supervisor and the Agency in its determination that accommodation or reassignment is not available or appropriate for a given employee, given the particular medical conditions and the type of positional duties of the specific job which the Applicant must perform, as well as taking into account what constitutes "efficiency" in the Federal Service, etc.); and further, that of the Office of Personnel Management. It is the job of the Attorney representing a Federal or Postal employee in preparing a Federal Disability Retirement packet under FERS or CSRS, to pull together the various perspectives; write up and prepare, and gather the information from the multiple and differing perspectives; to neutralize those perspectives which may impact negatively upon the Federal disability retirement application; then to present the fullness of the different perspectives such that it meets the legal criteria and "perspective" of the Representative from the Office of Personnel Management: that "ultimate" perspective which determines a "yes" or "no" in determining the viability of a Federal Disability Retirement Application.

Sincerely, Robert R. McGill, Esquire

Continue reading "FERS & CSRS Disability Retirement: Differing Perspectives"