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OPM Disability Retirement: The Three-Day Weekend

July 3, 2011

For Federal and Postal employees contemplating filing for Federal Disability Retirement benefits under FERS or CSRS, the 3-day weekend is a time of respite, recuperation and intermediate period of temporary time-out, in order to regain the energy and sustained endurance to go back to work.

Pain is a chronic state of being which results in profound exhaustion and fatigue just to fight against it and to attempt to minimize it on a daily basis. For psychiatric medical conditions, Major Depression, Anxiety, panic attacks, and a host of other conditions and symptoms, are not something which one can simply “will” to overcome.

Often, the question still is posed whether or not psychiatric conditions are denied by the Office of Personnel Management at a greater rate of consistency than physical medical conditions. Fortunately, the stigma of psychiatric conditions has diminished. Whether for physical medical conditions or psychiatric medical conditions, the standard to be met in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS is the same applicable standards of proof.

For the 3-day weekender, however, the standard of proof is an irrelevancy, because the time of recuperation is merely temporary, and the cyclical requirement to return to work in a state of exhaustion, pain, or cognitive turmoil must begin anew with another work day. It might be time to consider filing for Federal Disability Retirement benefits under FERS or CSRS if you find yourself in that state.

Sincerely,

Robert R. McGill, Esquire

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Disability Retirement for Federal Workers: The Weekend Recuperator

March 5, 2011

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Is the weekend merely the intervening time in which to recuperate from your chronic medical conditions in order to drag yourself into work? Is Friday the day which “releases” the pent-up exhaustion and profound fatigue as the body attempts to tolerate the fifth day before the intervening weekend? It is indeed amazing how the body (and the mind) can tolerate the palliative attempts to regenerate itself as it suffers through a chronic and often progressively deteriorating condition.

While the Office of Personnel Management systematically argues that pain is a subjective condition and persistently (but wrongly) makes the conceptual distinction between “objective” medical evidence as opposed to “subjective” medical evidence, the fact is that pain is a physiological mechanism in which the body is trying to “inform” the pain recipient that something is wrong, and that something needs to be attended to.

Federal or Postal Disability Retirement benefits under FERS or CSRS is a benefit in which a Federal or Postal Worker can receive a base annuity, in order to allow the pain and chronic medical condition to begin to repair itself. Under the law, the medical condition must last a minimum of 12 months — and, indeed, it will take that, and many more years for most people, in order to recuperate. The present period of weekends used to recuperate is never enough. The body and pain receptors are speaking. The Federal and Postal employees are receiving such “messages” for a reason. It is time to listen.

Sincerely,

Robert R. McGill, Esquire

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FERS & CSRS Disability Retirement for Federal and USPS Workers: The Weekend Illusion

October 24, 2010

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The problem with relying upon weekends is the imbalance of perspective which results therefrom.

For the universal man (or woman), work constitutes a disproportionate segment of one’s “identity“, and the weekend is often a rush of activity in order to perform those chores which “need” to get accomplished, as well as to engage in some recreational activities to “recharge” one’s battery. This cycle of work-to-weekend-to-work is acceptable for most individuals, because it allows for some leisure activities.

For a Federal or Postal Worker who is facing a chronic, sometimes debilitating, and often progressively deteriorating medical condition, the added factor of having a medical condition which forces one to utilize the weekends to merely recuperate and return to a level of mental or physical functionality just to be able to return to work for another week, such a cycle becomes distorted and out of balance. Such a cycle simply cannot last for very long. Thus, Federal Disability Retirement is an option to consider. While the monetary return is negligible (60% of the average of one’s highest three consecutive years the first year; 40% every year thereafter), it is a basis upon which one can hopefully “break the vicious cycle” of using the weekends to recuperate for the work-week.

The universal man and woman needs time for leisure, recreation and reflective thought, and weekends must allow for such time. For Federal and Postal workers who have a medical condition which impacts one or more of the essential elements of one’s job, OPM disability retirement under FERS or CSRS must be a consideration in order to obtain that which is necessary for long-term healing, and not just for temporary periods of recuperation.

Sincerely,

Robert R. McGill, Esquire

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OPM Disability Retirement: Opinions, OPM and Power

September 28, 2010

2 Comments

In filing a Federal Disability Retirement application under FERS or CSRS, one must always be aware of the distinction between the two — opinions and power — and apply it with that awareness in filing an application for Federal Disability Retirement to the Office of Personnel Management (OPM).

There will be multiple opinions involved in any Federal Disability Retirement packet — the opinion of the medical doctor who is treating the applicant; the opinion of the applicant as to one’s ability or inability to perform some, which or all of the essential elements of one’s job; the opinion of the Supervisor or someone at the Agency on multiple issues, rendered in the Supervisor’s Statement and the Agency’s Certification for Reassignment and Accommodation; and the “opinion” handed out by the Office of Personnel Management as to whether all of the compendium of opinions, collectively gathered to present the evidence for approval in a Federal Disability Retirement application, constitute sufficient evidence such that it meets the preponderance of the evidence in proving one’s case. It is thus helpful to understand that all of these identifiable propositions are all “opinions”.

The one distinction, however, is that the opinion of the Office of Personnel Management carries with it the power of approval or disapproval, and so one may designate it as carrying more “weight” because it contains an inherent authority which all other opinions lack — that of the power to say yea or nay. But remember that such power, fortunately, is not absolute, nor necessarily arbitrary and capricious, and there is ultimately an appeal process to have such raw power reviewed for viability and sufficiency. That is why the validity and force of the “other” opinions is important to maintain — the medical opinion and the opinion of the Applicant — so that when it is reviewed by an Administrative Judge, the integrity of a Federal Disability Retirement application under FERS or CSRS may be properly adjudicated.

Sincerely,

Robert R. McGill, Esquire

Labor Day Weekend and the Federal Employee

September 6, 2010

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Labor Day is traditionally viewed as the end of summer, the entrance back into the routine of the work world, where the lazy days of camping, spending additional time with one’s family; of the soft, lapping sounds of waves rolling as one attempts to squeeze the last remaining hours of leisure and tropical enjoyment. Then, on to the rushing days of work, and more work. It is, moreover, a celebration of the laboring exercise of a productive economy — one which has sputtered and stalled in the last two years.

For the Federal or Postal worker who has filed, or is contemplating filing, for Federal Disability Retirement benefits under FERS or CSRS, the celebration of Labor Day comes whenever there is the recognition and acknowledgement that one can no longer perform one or more of the essential elements of one’s job. At that point of recognition, the time to plan for a secured future comes into play. The days of full labor and productivity may be coming to an end; but that does not mean that one cannot go out and be productive in some non-Federal, non-Postal capacity.

Remember that Federal Disability Retirement under FERS or CSRS does not mean that you cannot work at any other job, ever. Indeed, the opposite is true. You may, after securing your Federal Disability Retirement benefits under FERS or CSRS, go out and get another job in the private sector, and make up to 80% of what your former Federal or Postal position currently pays. While it may be difficult to do that in this tough economy, brighter days are hopefully ahead, and the time to begin preparing for that brighter future is now.

Sincerely, Robert R. McGill, Esquire

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Federal Employee Medical Retirement: The Connection between the Prehearing Statement and the Hearing

August 10, 2010

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When a Federal Disability Retirement application under FERS or CSRS has been denied twice by the Office of Personnel Management, and one appeals the Federal Disability Retirement case to the Merit Systems Protection Board, there comes a point when the scheduling order requires that each side (the “Appellant” or the one who filed the appeal, and the Office of the Personnel Management) file a “Prehearing Statement”.

Do not underestimate the importance of preparing a Prehearing Statement. It is not simply a listing of the witnesses to be testifying at the MSPB Hearing; more than that, it is an opportunity to set the issues, to form in the mind of the Administrative Judge the parameters of what will be proven; an opportunity to proffer and plant the seeds of the evidence which will be presented; to undermine and preempt many of the arguments which are used customarily by the Office of Personnel Management; to argue for the Bruner Presumption (even if it does not strictly apply); and to show how, at this preliminary stage of the process, that the upcoming Hearing is really an unnecessary event. Thus, the Prehearing Statement, as well as the Prehearing Conference, is an important preliminary step in setting the stage for success in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

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Federal Employee Medical Retirement: The Chasm between Denials

June 17, 2010

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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

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OPM Disability Retirement: An Additional Problem with Answering an OPM Denial

March 20, 2010

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Spring and summer are finally upon us; the warmth of the sun finally brings some hope that the multiple series of snowstorms may be finally behind us (now that I have said it, the chances are exponentially multiplied that we will accumulate an additional 20 inches of snow in March). Thoughts of the beach will soon become visually real, as opposed to virtually experienced. Sand. The metaphor of the “shifting sand” is one which is applicable to the Office of Personnel Management in its denial of a Federal Disability Retirement application under FERS or CSRS. Those of you who have followed my stream of consciousness on the issue of templates, denial letters and the arbitrary nature of OPM’s decision-making process, will not find it surprising to find that OPM merely shifts, changes positions, and dances around (albeit, not always gracefully) any attempt to “corner” the argument which purportedly is the basis for a denial of a Federal or Postal Disability Retirement application.

Do not, however, underestimate the importance of properly, directly, and clearly answering the concerns of an OPM denial. It is not enough to gather more medical documentation and sending them in. It is not enough to address, point by point, the basis of a denial letter. One must corner, clarify, and clearly define the basis of an OPM denial, then refute them. This way, if it is denied a second time, and the case goes before an Administrative Judge at the Merit Systems Protection Board, the AJ will see that the issues previously brought forth by OPM have already been addressed, and that any necessity for a Hearing may be avoided by clarifying any remaining concerns which the OPM representative may need to search for and articulate.

Sincerely,

Robert R. McGill, Esquire

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FERS & CSRS Disability Retirement: The Problem with Answering an OPM Denial

March 19, 2010

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A denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management always leaves the applicant and his or her attorney at a disadvantage. This is because OPM is never answerable to any resulting consequence of a denial; at least, not directly. Think about it this way: In the initial application, if an OPM Disability Retirement application is properly prepared and submitted according to, and within the parameters of the laws governing Federal Disability Retirement, one would assume that it should be approved. If it is denied, then the case is sent to the “Reconsideration” division of OPM — meaning, to another person.

Now, taking it out of the hands of one OPM Representative into the hands of another, has both the good and the bad mixed together: the good is that it will now be reviewed afresh by someone else; the bad is that the person who denied the original application has no further responsibility for the denial. This is true, incidentally, with respect to the Reconsideration Stage of the process; if a second denial is issued, the person who issues the second denial also has no responsibility to answer for the basis given in the denial.

The “light at the end of the tunnel“, however, comes when it is finally taken up by an Administrative Judge at the Merit Systems Protection Board. While the AJ cannot hold anyone at OPM responsible for a denial which never should have been, at the very least, when the AJ reviews the record and finds that the previous denials were unfounded or rationally without legal foundation, an immediate recognition of a baseless denial can help the applicant. Ultimately, rationality and legal integrity has a chance to prevail; it sometimes takes more than one bite at the apple.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Merry (Snowed in) Christmas

December 20, 2009

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For those who read my blogs on a regular basis, Merry Christmas and Happy New Year. I am snowed in over the weekend, and the accumulation of snow is expected to be over 10 inches. Now, in many parts north and in the mid-west, I am told that such minimal amount of snow fails to constitute a “snow storm”, and many laugh at how we react here in the D.C.-Maryland Metropolitan area. Everything is relative, and in my area, anything over an inch is responded to with panic and a rush to the grocery stores to stockpile our kitchen and cupboards.

Such relative comparisons remind me of how pain and medical disabilities are often misunderstood by one another; that while “pain” is a subjective phenomenon, no matter how hard we try, we are often unable to convey the sensation that we experience. The difference, of course, is that while there is an objective basis in determining the extent of snowfall, there is no such measure for pain. But how we react to pain is often an individual experience, one which we should not be quick to judge. Unfortunately, agencies are often quick to judge, and therein lies the problem. Hopefully, the snow here will let up soon, and I will be back in my office on Monday.

Merry Christmas

Sincerely, Robert R. McGill, Esquire

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