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OPM Disability Retirement: OWCP & Federal Disability Retirement

February 18, 2009

I often tell my clients that OWCP/DOL is not a retirement system. It is a system which was meant to address the medical injury resulting from a work-place accident or occupational hazard resulting in a medical issue arising, such that compensation is allowed for a period of time during a process of recuperation.

As unfortunate as it is, Worker’s Comp has become synonymous with “harassment” and “difficult”, where approval for wage compensation, for medical treatment (including necessary surgery) has meant months and months — and often years — of wrangling and fighting; of having an OWCP case manager or adjuster being rude, failing to respond, failing to return telephone calls, and just when it seems as if something may be done, the OWCP caseworker is switched to someone else who is equally unresponsive.

Then of course there is the intrusiveness — of the OWCP nurse who sits in with you and your doctor, in a context where it is as if the “enemy” is watching that relationship which is supposed to be sacred and private: a conversation between a doctor and the patient. It is, as I have often told clients, “a hard road to travel.” Yet, where the medical condition, injury or disability arises as a result of a work-place accident, obviously it is financially beneficial because it pays more. That is the bottom line. Further, it is tax-free. But it is not a retirement system.

Disability retirement pays less; it matters not whether the injury or medical condition occurred “on the job”; you are not required to be examined by a “second opinion doctor”; you do not have to obtain prior approval from a case manager to go and seek medical treatment. But the benefits are much lower; it is taxable. However, is it disability retirement. In such a retirement, you are meant to go out and to do other things in life, including other work.

Sincerely,

Robert R. McGill, Esquire

Tags: disability retirement at the USPS, federal owcp, Federal Worker's Comp and the OWCP nurse, Federal Worker's Comp is not a retirement system, federal workers comp, injured postal worker, medical condition(s), OPM disability doesn't have to be job-related, OWCP approval for medical treatment, OWCP benefits for federal workers, OWCP disability, OWCP doctors, OWCP mercenary doctors and nurses, Postal Service disability, the federal agency and occupational medicine, the human side of a disability story, USPS Disability, USPS occupational medicine mercenary doctors, USPS Workers Comp, work-place accident in a federal or Postal job, Workers Comp disability, your treating doctors

CSRS & FERS Disability Retirement: Further Thoughts on Reasonable Accommodation by the Agency

February 12, 2009

3 Comments

The problem with Agency efforts to provide an employee with reasonable accommodations is that such attempts are too often than not, neither “reasonable” nor legally viable accommodations. Let’s remember that a legally viable “accommodation” is that act, allowance, or modification, which allows the employee to continue to perform and complete the core or essential elements of one’s position. Further, Federal and Postal employees need to understand that there is nothing inherently wrong with an Agency providing an accommodation that is neither legally viable (for Federal disability retirement purposes) nor “reasonable”.

Let me explain. Let’s say that an employee works for the Postal Service. He or she gets injured, and let’s even assume that it is a valid OWCP Department of Labor claim. At some point, because OWCP/DOL is NOT a retirement system, they will often “create” a “modified position” and make a modified, or light-duty job offer. It could be as extreme as sitting in a corner and answering the telephone. Now, if the individual gets the same pay, there is nothing inherently wrong with such a modified job offer. However, at the same time, you need to remember that accepting such a modified job offer does not preclude the employee from filing for, and getting approved, an application for Federal Disability Retirement. This is because the modified (or “light duty”) job offer is not a real, previously-vacant position, and therefore is neither “reasonable” nor truly an accommodation under federal disability retirement laws. Nevertheless, there was nothing wrong with the Agency making up such a “modified job” and offering it to the employee. This is true of all Agencies in the Federal Government, across the Board, from FAA Air Traffic Controllers who have lost their medical clearances, to IT Specialists who have lost their security clearances, to executive level administrators: modified duties, and “make-up” positions, while remaining in the same position, does not mean that there is anything inherently wrong with the modified job offer. It just means that such a modified job is neither a “reasonable” accommodation, and nor is it an “accommodation” at all — at least, not under the laws governing Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Tags: accommodation issues in FERS disability retirement, accommodation under OPM disability law, applying for federal disability, disability retirement at the USPS, dol owcp rehab, essential elements of jobs, FAA Air Traffic Controllers, federal disability attorney, federal disability law, federal medical retirement, injured postal worker, legal accommodation for Postal workers, light duty in the Postal Service, light duty jobs USPS, light duty usps, light-duty job offer, limited duty in the Post Office, offer of modified assignment (limited duty) ps form 2499x, OWCP benefits for federal workers, postal workers injury attorney, reasonable accommodation of federal workers, resources for injured federal workers, USPS Disability, USPS disability retirement benefits, usps getting rid injured workers

OPM Disability Retirement: The Psychological Barrier

February 11, 2009

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I hear the anguish in people’s voices; an individual has worked for the Federal Government, or the Postal Service, for 20+ years; “I’m not lazy”, “I’ve worked all of my life”, “I gave my Agency the best, each day”, “I am not asking for a hand-out.”

No justification is needed. No defense is needed. Disability retirement is not welfare; it is not a hand-out; it is a benefit which was part of the employment package which your employer — the Federal Government — offered to you, when you applied for the job.

You could have applied for a private sector job, and received a higher offer of monetary compensation, but with lesser benefits. A Federal employee who accepts a Federal or Postal position, does so with the understanding that the monetary compensation may be lesser, but the total package of benefits makes it worthwhile. Some of those benefits are considered as “safety-net” benefits, and disability retirement is one of those.

No justification is needed. No defense is needed. You worked hard; you gave it your best; it is time to take that benefit which you earned, and move on to another phase of your career, your life, and your contribution to society –which yet remains in abundance. Your best days are yet to come.

Sincerely,

Robert R. McGill, Esquire

Tags: federal disability is not welfare, federal employee disability, federal employee disability benefits, FERS medical retirement, light at the end of the tunnel, maintaining a positive attitude, mental wall to overcome, OPM disability doesn't have to be job-related, OPM disability retirement, OWCP benefits for federal workers, OWCP disability, the silver lining, USPS Disability, Workers Comp disability, you don’t have to resign to apply for medical disability

CSRS & FERS Disability Retirement: Reasonable Accommodation by the Agency

February 10, 2009

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Often, aside from having submitted insufficient medical documentation to support a Federal Disability retirement application, the Office of Personnel Management will deny a case based upon a statement submitted by the Supervisor, normally on SF 3112B (aptly entitled, “Supervisor’s Statement”). Now, in preparing a Federal Disability Retirement application, I rarely worry about what will be on a Supervisor’s Statement, primarily because the applicant rarely has any control over the contents of the statement, anyway, and therefore to focus upon that which one has little or no control over, is simply a waste of time. Instead, I focus upon obtaining an overwhelmingly convincing medical narrative report from the doctor, which then essentially makes the Supervisor’s Statement — if it is viewed somewhat as “negative evidence” by the Office of Personnel Management — a moot and irrelevant point of contention. More often than not, when the Office of Personnel Management refers to the Supervisor’s Statement as revealing some basis for denying a disability retirement application, I find that OPM has either mis-read the import of the statement, or has selectively misquoted from the Supervisor’s Statement. Remember that the law requires that the Agency provide a “reasonable accommodation”; more often than not, what the Supervisor or the Agency has provided, is neither “reasonable”, nor an “accommodation” under the law. In any event, whether by misquote, unfair and selective reasoning, misreading, “unreasonable”, or not an “accommodation” at all, I rarely find that the Supervisor’s Statement is helpful or unhelpful; and, certainly, I have never found that a Supervisor’s Statement contains any substance which would or should be the basis of a denial from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Tags: accommodation of federal employees, accommodation under OPM disability law, agency's influence in disability retirement, applying for federal disability, disability retirement at the USPS, federal employee attorney, injured federal employee, insufficient medical documentation for OPM disability, light duty in the Postal Service, limited duty in the Post Office, medical reports in the OPM disability retirement application, offer of modified assignment (limited duty) ps form 2499x, Office of Personnel Management (OPM), Post Office disability, postal supervisors and managers, reasonable accommodation of federal workers, SF 3112B Supervisor’s Statement, The Doctor's Medical Narrative, top reasons for denying an OPM disability application, US Postal Disability

OPM Disability Retirement: Agency Loyalty

February 8, 2009

2 Comments

Many people who call me and tell me their narrative about the Agency, the medical conditions, the growing inability to perform the essential elements of the job, and the resulting need to file for disability retirement, often reveal an undertone of a common element: after so many years of loyalty, how could the Agency show such callous lack of caring?

I don’t have an answer to the question of lack of empathy on the part of an Agency; Agencies are made up of individuals; individuals show varying degrees of care, sympathy, and loyalty, but only up to a point: if such care or empathy will somehow be perceived to harm the “mission of the Agency”, or if walking the proverbial “extra mile” for an individual who needs some temporary support is quite simply seen as “not worth the trouble,” then the individual will simply turn his or her back on the disabled individual.

When the individual turns his or her back on the employee filing for disability retirement, then the Agency turns its back on the person; for, again, Agencies are made up of individuals. But what about the loyalty that was shown by the employee for all of those prior years? How about the years of doing overtime, of doing extra work without complaint, etc. — doesn’t that account for some bilateral, reciprocal loyalty?

Unfortunately, it does not amount to much. Loyalty in today’s society is defined as: What have you done for me today?

For the Federal and Postal Employee who needs to file for Federal Disability Retirement benefits, expect the worst; expect that your Agency will not be supportive during the 6 – 10 month administrative filing process. Then, if by chance, a supervisor shows some empathy and support, you will have been pleasantly surprised.

Sincerely,

Robert R. McGill, Esquire

Tags: administrative or adversarial process, agency's loyalty, attorney for US government employees, civil service disability, disability federal workers, disability retirement csrs, essential elements of jobs, federal employee disability, federal injured ill workers, federal owcp, federal workers comp, fers disability retirement opm, injured postal worker, mission of the Agency, non job related injures or illnesses, opm medical disability, OWCP benefits for federal workers, postal workers injury attorney, undesirable federal workers, USPS disability retirement, Workers Comp disability

CSRS & FERS Disability Retirement: Confusion About The 1-year Rule

February 6, 2009

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I am receiving too many questions about certain issues, which leads me to believe that a clarification is again in order. First, concerning the Statute of Limitations on filing for Federal disability retirement benefits. A Federal or Postal Employee must file for federal disability retirement benefits within one (1) year of being separated from Federal Service. Thus, if you have been on LWOP, or on OWCP, or on sick leave, but you are still receiving “zero-balance” paychecks which show that you have NOT been separated from service yet, then your 1-year statute of limitations has not yet even begun. The 1-year Statute of Limitations begins from the effective date of your separation from Federal Service. Your SF 50 (or, for Postal employees, PS Form 50) would reflect that date of separation.

Second, some of the questions which have been posed to me suggest that there is a misunderstanding as to the substantive requirements of the law, as well. A Federal or Postal worker does NOT have to have been medically unable to perform one’s job for a full year before filing for disability retirement. Rather, the requirement is prospective — that your medical condition must last for at least 1 year. Thus, normally after a few months of treating with your doctor, your doctor should be able to make a reasonable medical determination that your medical condition is going to last for at least a year, and more often than not, for much longer. The distinction which I am attempting to clarify can make a tremendous difference: Federal and Postal workers filing for federal disability retirement do not have to wait a year after learning of his or her medical condition — that would be foolish, especially because the process of obtaining disability retirement can itself often take 6 – 8, sometimes 10 – 12 months. Rather, a Federal or Postal worker can file soon after learning about a medical condition, so long as the treating doctor can provide a reasonable medical opinion that the condition will last for a minimum of 1 year. I hope that this will help clarify any confusion people may have about the “1-year” rule — both as it applies to the ability to file for federal disability retirement benefits, as well as to the issue of how long the medical condition must last.

Sincerely,

Robert R. McGill, Esquire

Tags: 1-year OPM disability rule, federal owcp, federal workers comp, filing for opm disability retirement, how long the federal disability process last?, how long the medical condition should last?, LWOP in federal disability retirement, medical condition(s), One-Year Statutory Timeframe, OPM disability Statute of Limitations, OWCP benefits for federal workers, separated from service, statutory requirements in OPM disability law, two one-year rules?, Workers Comp disability, your treating doctors

CSRS & FERS Federal Disability Retirement: When the Office of Personnel Management Fails to Apply the Law

January 31, 2009

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Federal disability retirement law is often a frustrating process. On the one hand, for an attorney, it can be a professionally satisfying area of law to practice because the end result — obtaining a benefit for an individual who has shown long years of loyal service to working for the Federal Government; providing a source of income for a person who has been impacted by a medical condition; reaching a successful conclusion to a process: these factors are always satisfying for a practicing attorney. On the other hand — this is an administrative process; it is an area called, “Administrative Law”, and at least at the initial stages of the process, the Attorney handling such a case is dealing with non-attorneys at the Office of Personnel Management.

In other areas of practice, there is often an “equality of competence” (presumably), where attorneys compete or engage in adversarial battle with other attorneys. With Disability Retirement Law, however, the “Disability Specialist” at the Office of Personnel Management often has absolutely no clue as to the current laws governing disability retirement. They simply apply a template and, if a specific case goes outside of that preconceived “template”, then the OPM Representative will often deny the case.

Now, in all fairness, most of the people at OPM have a fair idea of the current law, and more importantly, are open to being informed, educated and persuaded by an attorney that a particular case, with its various wrinkles (and all cases have their unique wrinkles), should be approved because of compliance with a particular statute, a relevant case-law, or a particular regulatory statement. In some particular cases, however, when an OPM representative makes a decision based upon complete ignorance of the prevailing disability retirement laws, one can only throw up one’s hands, and hope that the Reconsideration Specialist will have greater knowledge — or, at the very least, is open to being educated on the proper application of the law.

Sincerely,

Robert R. McGill, Esquire

Tags: Administrative Law, administrative or adversarial process, case law citation in federal disabilities cases, disability retirement at the USPS, disability retirement with the federal government, federal disability law, federal government disability, federal workers comp, FERS disability retirement, FERS medical retirement, filing for opm disability retirement, limited duty assignments united states postal service, misinterpretation or misapplication of OPM disability law, misstatements as basis for denial, Office of Personnel Management (OPM), OPM Disability Specialist, statutory requirements in OPM disability law

CSRS & FERS Federal Disability Retirement: Psychiatric Disabilities

January 28, 2009

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I am often asked, on an initial interview/consultation of a potential client, whether or not psychiatric medical disabilities (Major Depression, Generalized Anxiety Disorder, PTSD, panic attacks, Bi-polar disorder, etc.) are “more difficult” to prove than physical disabilities. This question is similar, of course, to the question often asked of certain other kinds of disabilities, like Fibromyalgia, chronic fatigue syndrome, Irritable Bowel Syndrome, and other similar (often designated as “auto-immune” disabilities) medical conditions.

In my experience, there is no single generic answer to the question of whether or not a particular medical disability is “more difficult” to prove than another. In my experience, I have gotten approved an application for Major Depression based upon a single-page note from a Psychiatrist; on the converse/inverse experience, I have had cases rejected at the First Stage of the process (but, fortunately, had the same cases approved at the Second, Reconsideration Stage) showing chronic, failed-back syndrome cases where prior surgical discectomies, multiple diagnostic MRIs showing incontrovertible basis for severe and radiating pain, and multiple specialists verifying the client’s clear and irrefutable inability to perform the essential elements of his/her job. In preparing a Federal disability retirement retirement application, my many years of experience has taught me a number of elementary & foundational lessons: First, a clear and concise presentation of providing a direct nexus between the particular medical condition and the type of job that the Federal/Postal employeee performs, is very important; Second, it is very rarely the volume of records which is convincing; rather, it is the quality of the medical report which is paramount; and Third, it often depends upon which OPM Disability Specialist it is assigned to, which sometimes “makes the difference” between approval and denial.

Sincerely,

Robert R. McGill, Esquire

Tags: attorney for US government employees, bi-polar disorder in OPM disability, Chronic Fatigue Syndrome (CDC) and Postal/Federal workers, essential elements of jobs, federal workers comp, federal workers with panic attacks, FERS Disability, Fibromyalgia in OPM disabiity retirement, Generalized Anxiety Disorder (GAD), Health Conditions and the Federal and Postal Employee, how to win an OPM disability case, injured postal worker, Major Depression cases in the USPS, medical condition(s), medical reports in the OPM disability retirement application, mental condition in OPM disability, Nexus between Medical Condition and Essential Elements, OPM "difficult" disabilities, OPM disability application tips and strategies, OPM Disability Specialist, OPM mental condition, Post-Traumatic Stress Disorder (PTSD) among fed workers, psychiatric disability in OPM Disability Retirement, psychiatric medical disabilities, psychologist, severe and radiating pain, stress in federal jobs

OPM Federal Disability Retirement: The Emergency Filing

January 22, 2009

4 Comments

On the desk of one of the Circuit Court clerks, in an adjacent county, is a sign which reads: “The fact that you waited until today does not make it into my emergency.” Those who stand in line to file an emergency pleading, either try to ignore the prominently-displayed sign, or hope that some other clerk will attend to his or her needs. Yet, we all know that there are times when, for one reason or another — the year passed so quickly; the medical reports which we expected months ago just arrived; “life happened” and the 1-year mark for filing for disability retirement is upon us — we have a couple of weeks, or perhaps a week, or perhaps only a couple of days, to file for Federal disability retirement benefits.

When such an emergency filing becomes necessary, three things must happen: First, the three essential forms must be quickly filled out (whether they are adequately and sufficiently filled out is another matter — but just remember that if you don’t at least meet the 1-year statute of limitations for filing for Federal disability retirement benefits, you are left with no argument at all; whereas, at least by filling out the forms and filing, regardless of their adequacy or completeness, you can at least argue later that it meant x or y). Those three (3) forms are: SF 3107 Application for Immediate Retirement for FERS; SF 2801 for CSRS; Schedules A, B & C for FERS & CSRS; and SF 3112A, Applicant’s Statement of Disability for FERS & CSRS. Second, fax the three completed forms to Boyers, PA, and Express Mail or FedEx it (and get a fax confirmation sheet); and Third, follow up with a phone call to Boyers to get the name of the person who will confirm that he/she received the fax.

Every now and then, “life happens”, and emergency filings are necessary. In a perfect world, such emergencies should be unnecessary; and while the clerk in the Circuit Court in an adjacent county might look with disgust upon the lawyer or pro-se individual attempting to file an “emergency” pleading, whether it is his emergency, her emergency, or someone else’s fault, the fact still remains: It needs to be filed on time.

Sincerely,

Robert R. McGill, Esquire

Tags: 1-year OPM disability rule, Applicant's Statement of Disability for CSRS, Applicant's Statement of Disability for FERS, applying for federal disability, civil service disability, CSRS Retirement Application SF-2801, disability retirement at the USPS, emergency filing, Federal Circuit Court of Appeals, federal disability attorney's advice, federal employee disability benefits, medical reports in the OPM disability retirement application, One-Year Statutory Timeframe, OPM disability attorney, OPM disability Statute of Limitations, OPM First Stage Disability Application, Post Office disability, resources for injured federal workers, Schedules A, SF 3107 Application for Immediate Retirement for FERS, SF 3112A, timing questions, USPS Disability, USPS disability retirement benefits, Workers Comp disability

CSRS & FERS Federal Disability Retirement: The Human Story

January 18, 2009

1 Comment

I often refer to a favorite short story of mine, inasmuch as it serves as a paradigm for why I practice disability retirement law: the master storyteller, Anton Chekhov, wrote a brilliant short story entitled, Grief (translator’s subtitle: “To Whom Shall I Tell My Grief,”), where the cab-driver, Iona Potapov, tells the profound story of human need — of a son’s death; a tale of tragedy, and of human indifference.

And in the course of driving various strangers in his carriage/cab, where he attempts to tell his very personal story of human tragedy, in the end, he must turn to his horse, and speak the mournful song of human desire to the only one who will listen: “That’s how it is, my old horse. There’s no more Kuzma Ionitch. He has left us to live, and he went off pop. Now let’s say, you had a foal, you were that foal’s mother, and suddenly, let’s say, that foal went and left you to live after him. It would be sad, wouldn’t it?”

Each of us has a human tale to tell. The human tale in disability retirement is often one of enduring devotion to one’s life work; of a medical condition beyond one’s control; and the need to change course in one’s life.

As an attorney, I am very busy in my practice. The cost of success, of course, is less time — less time for family, less time for personal pursuits (my first and greatest love is and continues to be the study of Philosophy — that is what I studied in College; that is what I studied in graduate school, before heading off to law school; and I find that, each year, I have less and less time in reading the major works of philosophers — but this is often outweighed by the professional satisfaction I get in obtaining disability retirement benefits for my clients); less time for reflection. I receive many, many calls on a daily basis from clients and potential clients who need to file for disability retirement benefits.

I try and listen to each human story — but to listen to the fullness of each story would be to take away from the time needed to spend on someone else.

That is why, often, I must direct the conversation with a series of questions. I am not a therapist or a doctor — I am an attorney. If I do not focus upon the direct and impactful issues, and help my clients focus upon the significant issues which directly touch upon Federal Disability Retirement, I am not doing my job. Thus, if I am somewhat focused upon certain foundational issues when speaking to people on the telephone, it is only because I am trying to do the best for all of my clients — to direct and re-direct the issues, like a laser-beam, upon the important issues concerning Federal Disability Retirement.

In doing so, I hope I am not like the indifferent passengers who left Iona Potapov on the side of the road, to have him tell his human story to the only one left to tell: his horse.

Sincerely,

Robert R. McGill, Esquire

Tags: Anton Chekhov, attorney for US government employees, disability retirement benefits, federal disability attorney's advice, federal disability law, federal medical retirement, FERS disability retirement, focusing on the direct issues, Iona Potapov, lawyer role in federal disability cases, story of human tragedy, the human side of a disability story, USPS Disability