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Disability Retirement and the Law Today by Robert R. McGill
Robert McGill:
I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for telephone consultations. If you would like to contact me, you may call me at 1-800-990-7932, I also advertise in the Attorney Directory of the Federal Times. www.federaldisabilitylawyer.
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View my websites at U.S. Postal Service Disability Retirement blog www.FederalDisabilityLawyer.com Federal Disability Retirement Blog Archives:
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Of the man who built a castle in order to protect against invading marauders, but filled the moat with colorful fish because he did not want to spoil the perfect harmony of the ecosystem by introducing foreign predators into the land. Such a man failed to understand the foundational purpose of the construction of the castle to begin with – to keep out foreign invaders. By refusing to introduce foreign predators, his castle was invaded by foreign marauders, leaving a devastated skeleton of a charred stone structure – a memorial to one who confused appearance for substance, and the resultant calamity of failing to recognize that sometimes a distinction does make a difference.
-- From Aristotelian Perspectives in a Metaphysically Neutral Environment, from Heraclitis to Mao Tse-Tung Federal Disability Retirement from the Office of Personnel Management: Sticking to Basic Approaches is the Road to Success (10/17/11) The preparation, formulation, and finalization prior to filing a Federal Disability Retirement application, whether under FERS (the Federal Employees Retirement System) or CSRS (Civil Service Retirement System), should be sufficiently reviewed and carefully scrutinized prior to submission to the Agency of the Federal Employee (if still employed or separated but not more than 31 days) or the H.R. Shared Services Center for the Postal Employee (in Greensboro, North Carolina, where all Postal Disability Retirement applications are processed – again, if still employed or, if separated, not for more than 31 days) and before its ultimate arrival at the Office of Personnel Management, first at Boyers, Pennsylvania, for the intake processing portion of the administrative, bureaucratic process, then for transfer to the U.S. Office of Personnel Management at 1900 E Street N.W., Room 3468, Washington, D.C. 20415. Once the Federal Disability Retirement application has been received for the initial intake processing portion of the administrative procedure at Boyers, Pennsylvania, the case is assigned a “CSA” number – for CSRS individuals, the number which is assigned will begin with the numeral “4”, and end with a “0”; for FERS employees, the CSA number will begin with the numeral “8”, and also end with a “0”. A CSA Number is simply assigned for purposes of identification so that the case can be easily accessed through the identifying number; although, if the assigned CSA number is forgotten or misplaced, the Office of Personnel Management can still easily locate the file through one’s Social Security Number. All successful preparation is defined by careful planning and meticulous formulation. In scrutinizing a Federal Disability Retirement application prior to submission to the Office of Personnel Management, try to think in terms of both perspectives – the “professional” (the Applicant for Federal Disability Retirement) and the “spectator” (the Claims Representative who will be reviewing the Federal Disability Retirement application for sufficiency, cogency, viability, believability, and evidentiary impact). The “professional” is the person who prepares the case with such meticulous scrutiny and care, such that it makes it appear to the spectator that everything is in order, that the doctor’s unequivocal support, the natural flow of the Applicant’s Statement of Disability on SF 3112A coincides systematically, truthfully, and without contradiction with the supporting medical evidence; and, further, regardless of what the Supervisor’s Statement says – whether supportive, negative, or neutral in its tone, tenor and content, the important thing is to make sure that the documented medical evidence is such that it makes irrelevant the focal trajectory of the Supervisor’s Statement. Remember: this is a Federal Medical Disability Retirement application, and not a “Supervisor’s Disability Retirement application”. The “professional” – whether a singer, entertainer, athlete or salesman, or the applicant who is preparing a Federal Disability Retirement application under FERS or CSRS, is defined by the ease with which the “spectator” is able to review and evaluate the presentation placed before him or her. Extensive and unrelenting preparation is always the key to a successful presentation. The athlete makes the game enjoyable precisely because of the long hours of preparation he endures; the singer, for the extensive coordinating music sessions with the supporting band prior to going on stage; the entertainer, for the hours upon hours of rehearsals to perfect the necessary timing; and the salesman, who must practice the psychology of persuasive marketing to a stranger being confronted with a 10-second attention span. Whatever the circumstances, it is always the extent of one’s preparation which correlates and corresponds with a higher statistical chance of initial success. Sad is the sight which reveals a lack of correlating result from an aging or lazy athlete, where preparation fails to correspond concomitantly with the extent of preparatory exertion. In preparing and beginning to formulate the basic approach of a particular Federal Disability Retirement application under FERS or CSRS, however, it is always important to begin with some foundational questions, and such queries should always be accompanied by preliminarily exploratory inquires: Do I have a supportive doctor? How will I survive financially for the next 8 – 10 months? Is it better to slowly use up my sick leave over a span of time? Under FERS, how aggressive should I be in filing for Social Security Disability benefits, and what are the chances of getting it? What impact will Social Security Disability have on my FERS Disability Retirement annuity? Should I go out on LWOP? Should I file for Family Medical Leave? Should I participate in the leave-donor program? What happens if my Agency separates me before I file? What impact will a separation from Federal Service have upon a Federal Disability Retirement application? Will I be able to survive on the annuity? Will I try and work in a private-sector job after I receive a Disability Retirement annuity? These questions constitute a minor foray into the larger universe of questions which every Federal or Postal worker will have, prior to, during, and after the beginning entrance into preparing to file for Federal Disability Retirement benefits. Should I hire an attorney to represent me in filing for Federal Disability Retirement benefits? The answer to this latter question will often assist in satisfying many of the previous questions posed, precisely because an attorney who is knowledgeable in Federal Disability Retirement issues should not be merely an administrator for filling out forms; rather, any attorney who represents a Federal or Postal Worker to obtain Federal Disability Retirement benefits either under FERS or CSRS should be able to advise, guide, counsel and answer all of the questions surrounding Federal Disability Retirement issues. Remember further two (2) important points: (1) A Federal Disability Retirement application, whether under FERS or CSRS, is never a matter of “filling out forms”. If that were the case, anyone should (and would) be able to file for, and obtain, Federal Disability Retirement benefits. And (2), it is very, very rare that a Federal Disability Retirement case is a “slam dunk” case. Most people believe that his or her particular Federal Disability Retirement application is a “sure thing”. Such an attitude is quite understandable, of course, because the same person who is preparing the Federal Disability Retirement application is identical with the person experiencing the medical condition which defines the basis of the Federal Disability Retirement application. It is difficult to separate the two fundamental roles – of the person experiencing the trauma of the medical condition and the impact upon one’s ability/inability to perform all of the essential elements of one’s job, from the person who must objectively formulate the Federal Disability Retirement application under FERS or CSRS. Finally, always remember that there is a difference between truth, evidence, and persuasive argumentation. The former does not, in and of itself, always provide sufficiency of presentation, and the latter two are needed in order to highlight the strength of the former. The middle term – “evidence” – must always be accompanied by the art of persuasive argumentation. Don’t ever think that merely compiling a voluminous compendium of medical documentation, even if completely truthful, is enough to meet the evidentiary standard of proof necessary to obtain an approval from the Office of Personnel Management. The above constitute some basic approaches to preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management. Basic approaches always reveal a superior methodology than attempting to create complexities where none exist. Sticking to the “basics” always provides for a foundational aptitude of success, and success is defined by obtaining an approval from the Office of Personnel Management. Stick to the basics; it is the highest statistical road to success. I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:
Sincerely, |
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Avoidance of an issue may result in a positive end, as when the issue simply resolves itself; or in a negative end, where the issue continues to exponentially explode and quantify in ways which were unintended, multiplying in consequences which create havoc beyond the original issue which was intended for avoidance. If the latter, then avoidance itself implodes; for one then avoids even the concept of avoidance, and certainly avoids the initial issue of avoidance, but all the more so, until the morning comes when all of the issues which were avoided resolve themselves. So, in the end, avoidance is the key to avoid all of life’s nuisances. -- From “Life’s Steps to Success” Federal Disability Retirement under FERS or CSRS: 3 Basic Elements to Avoid in Preparing a Case (6/21/11) Filing for Federal Disability Retirement requires planning, preparation and foresight. It is first and foremost a “paper presentation” to the Office of Personnel Management and, as such, unless it goes to the Third Stage of the Process – the Merit Systems Protection Board – the Federal or Postal employee who files for Federal Disability Retirement benefits, whether under FERS or CSRS, will not have an opportunity to personally plead his or her case as to the validity, persuasiveness or merits of the case. Therein lies the conundrum, of course: that in preparing, formulating and filing a Federal Disability Retirement application for approval by the Office of Personnel Management, one must concurrently prepare the case such that the likelihood of success at the First Stage of the process is enhanced exponentially (while recognizing that there is never a guarantee), and at the same time preempting and inoculating, to the extent possible, the Federal Disability Retirement application from selective criticism and potential denial by the Office of Personnel Management. Determining whether or not a particular Federal Disability Retirement application will successfully meet the burden of proof at the First Stage of the process is never based upon a mathematical formula. Where the human factor constitutes the essence of the decision-making and it is not based upon a computerized quantification of paradigm grids, differences of opinions can occur. Thus, whether or not the Federal Disability Retirement application satisfies the “preponderance of the evidence” burden; whether the medical documentation satisfies the current and applicable legal criteria; whether “essential elements” of the position description have been impacted by the medical condition; whether a sufficient nexus has been formulated between the Federal or Postal employee’s essential duties and the medical conditions of the applicant – all of these issues, and many more, are grey areas of potential dispute and disagreement between the applicant who has filed for Federal Disability Retirement, and the Claims Representative at the Office of Personnel Management. Ultimately, of course, there is a “final arbiter” who will decide any dispute which may occur – and that is the Appellate process which governs all Federal Disability Retirement applications. First at the Merit Systems Protection Board by an Administrative Judge (although this is not technically part of the “appellate process”, but rather a Hearing before an Administrative Judge to determine the sufficiency of the evidence presented), then by a panel of Administrative Judges to decide (if necessary) a Petition for Full Review, then potentially before a Judge of the U.S. Court of Appeals for the Federal Circuit. Again, the human factor is always involved in intervening by attempting to “objectify” errors or perceived errors of correctly applying the law in making a determination on a Federal Disability Retirement application. Where the human factor prevails, the self-contradiction of attempting to expunge the human factor by applying an “objective” criteria, as if by mechanical application, is something which is impossible to attain. But that is why the layers of an administrative process involve multiple stages – in an effort to ensure fairness and an objective adjudication of a Federal Disability Retirement application, and to give the applicant every benefit of the doubt and opportunity to prove his or her case. In preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS, three (3) basic rules should always be followed, thereby both enhancing the probability of success, while at the same time inoculating the application against selective criticism by the Office of Personnel Management. The three (3) basic rules are:
(A) Avoid Internal Inconsistencies. Often, in reviewing denials from the Office of Personnel Management on cases where individuals prepared a Federal Disability Retirement application without an attorney, multiple internal inconsistencies are found, and attacked, by the Claims Representative at the Office of Personnel Management. These internal inconsistencies often involve direct contradictions between claims of medical conditions and symptomatologies in what the Applicant’s Statement of Disability narrates, and what the medical reports themselves reveal; or between statements made in a medical narrative report and what the office or treatment notes show. Further, overstating the claim of a medical condition will often implicitly reveal an inconsistency. It is better to let the doctor state the severity of the medical condition, as opposed to over-dramatization of the medical condition by the applicant. (B) Avoid External Inconsistencies. To the extent possible, one should attempt to preempt inconsistencies between the Applicant’s Statement of Disability, and statements made by the Agency – either in the Supervisor’s Statement or the Agency’s Efforts for Reassignment & Accommodation. The Office of Personnel Management will often selectively extrapolate and emphasize such external inconsistencies, arguing that: “While you state in your Applicant’s Statement of Disability that X is the case, your Supervisor has stated that Y is the case.” While complete avoidance and preemption of such inconsistencies is impossible (and unnecessary), it is best to attempt to predict, preempt and avert such inconsistencies, thereby negating further ammunition which OPM may be able to use in denying a Federal Disability Retirement application. (C) Avoid Open Inconsistencies. These are the more subtle forms of inconsistencies which OPM will focus upon, and which are much more difficult to avoid. An example of such an open inconsistency is where OPM will argue that while the Applicant who has filed for Federal Disability Retirement benefits has shown that the Agency is unable to accommodate the medical condition, such a showing is valid if and only if one has first shown that a medical condition requires that an accommodation is necessary. Thus, by failing to first prove by a preponderance of the evidence that X is the case, the Applicant has failed to prove that Y is necessary, and therefore the open inconsistency allows for the Office of Personnel Management to target a criticism for denying the case. Preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS must always be accomplished with care, foresight, and with a scrutiny to detail. Because it is not an “entitlement” (the conceptual distinction being that an entitlement is a benefit which one has an automatic right to), but rather a potential benefit which one may be eligible for – as such, the Federal or Postal employee must prepare his or her case with the cumulative knowledge of the law, the requirements of the law, and the applicability of the law, all at once. It is, ultimately, a benefit one secures not only for financial reasons, but because it allows for future security – both to have the opportunity to recuperate from one’s medical conditions, as well as to be able to again become productive in the workforce, perhaps in another type of job. In preparing an application for Federal Disability Retirement for FERS or CSRS, one must always look to the future, while at the same time viewing the importance of the entire administrative process, including avoiding targeted elements of inconsistencies which may develop in the preparation, formulation and filing of a Federal Disability Retirement application. I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways: View the FERS Disability Retirement website or the U.S. Postal Service Disability Retirement blog.
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Is a Master merely one who knows more than a novice? Can a novice not run faster, be quicker, use a sword with greater force, outwrestle and outmaneuver a Master? What advantage does a Master have over the novice, other than the use of words which dissipate into nothingness? What good, indeed, does a Master do – other than to teach the novice of that which he lacks: wisdom to know that he knows nothing. From “Master and Novice” Federal and Postal Workers: Preparing, Formulating, and Filing for Federal Disability Retirement benefits under FERS or CSRS (2/22/11) Federal and Postal employees who are attempting to prepare, formulate, and file a Federal Disability Retirement application under FERS & CSRS must somehow endeavor to “put it all together” in order to meet the 7-part criteria which the Office of Personnel Management has extracted and extrapolated pursuant to (so they claim) Sections 844.101 to 844.404 of Title 5, Code of Federal Regulations (for those under FERS) and similar provisions for those under CSRS (which is becoming a rarer animal close to extinction). One need only review a single denial issued by the Office of Personnel Management to recognize the template which the agency engages in: the “7-part criteria” is a synopsized, condensed application of the statutory framework for showing eligibility for Federal Disability Retirement benefits – without recognition or inclusion of the ever-expanding cases interpreting, reshaping, and clarifying the statutory authority and foundation which OPM continues to myopically adhere to as its narrow criteria to follow. In attempting to prove by a preponderance of the evidence (the applicable legal standard and “burden of proof” which a Federal or Postal employee must meet in order to become eligible) that one qualifies for each of the 7-part criteria, the Federal or Postal employee must not only contend with personnel at the Office of Personnel Management who adhere to the original statutory criteria, with all of its anachronistic interpretations (or lack thereof), but further, often the very failure of understanding what the legal criteria actually means (as opposed to what it says), all combine to make for a potentially frustrating experience. Because of the multiple potential pitfalls in obtaining a successful outcome in preparing, formulating and filing a Federal Disability Retirement application, one must always consider that the first rule of preparation must embrace the fact that the entire administrative endeavor is a “process” – meaning thereby that one must always prepare for the entirety of the process, and not expect (necessarily) to obtain an approval at the First Stage of the process. To this end, almost everyone universally believes in the following: “But my case is different because…” There never is an applicant who prepares, formulates and files a Federal Disability Retirement application who doesn’t believe that his or her particular medical condition, and the impact upon the ability to perform the essential elements of the job, is not deserving of Federal Disability Retirement benefits. A person who is unrepresented by an attorney exponentially quantifies the inherent problems which accompany the formulation of a Federal Disability Retirement application. For, all applicants believe that one’s own Federal Disability Retirement application meets all of the 7-part criteria as expounded and delineated by the Office of Personnel Management. Why is this? First, when the object of the Federal Disability Retirement application (whom does the medical report and records refer to?) is one and the same as the subject who is preparing the Federal Disability Retirement application (who is applying?), then it is almost impossible to maintain a perspective of objectivity, precisely because the person “being talked about” is one and the same as the “person talking”. Second, an applicant who prepares the SF 3112A (“Applicant’s Statement of Disability”) will often fail to properly read and interpret the medical reports and records which form the underlying justification and basis for eligibility for a Federal Disability Retirement application. This is because the person who is preparing the Applicant’s Statement of Disability is the same person who already experiences the medical conditions which the medical reports and records refer to, and as such, the applicant too often “reads more into” what the medical reports and records state, than what they actually state. This is familiarly termed, “overreaching” – which is a common mistake made in preparing the narrative story of one’s state of medical condition on SF 3112A. Again, the proper sense of objectivity is lost. And, Third, there is often the danger of an incommensurate disconnectedness between that which the applicant states in the Applicant’s Statement of Disability, and that which the medical report describes. Again, this has to do with an inability to maintain a proper sense of objectivity – for the person feeling the pain must be the same person who must describe the pain. Such an endeavor is tantamount to an individual attempting to perform brain surgery – on one’s own brain. Is it impossible for a Federal or Postal employee to successfully maneuver through the potential pitfalls of the entire administrative process identified as the “Federal Disability Retirement process”? No, nothing is ever impossible. But it can be difficult. To master the entirety of the process, from beginning to end, by being both the object of the application, identical with the subject of preparing, formulating and filing a Federal Disability Retirement application; then to contend with the misapplication, misinterpretation and limited view of the governing laws which dictate the success or failure of a Federal Disability Retirement application –by the very governing Agency which is supposed to comprehend the complexities of such laws (that Agency being the Office of Personnel Management), is to merely recognize at the very start of the process that every such bureaucratic administrative endeavor places one at an initiating disadvantage. Take, for instance, Criteria Number 6 which the Office of Personnel Management often focuses upon – that in order to qualify for Federal Disability Retirement benefits you have to show that your employing agency was “unable to make reasonable accommodation for your medical condition.” While the term “accommodation” can be discovered via a proper search of the Code of Federal Regulations, OPM makes no effort to assist the potential applicant as to the nuances and interpretive history of what qualifies as an “accommodation”, and moreover, the common interpretation of what constitutes an accommodation is not intuitively obvious. Further, OPM’s own application of the concept of “accommodation” is often misguided, as professional experience has revealed. Ultimately, the singular effort of a Federal or Postal employee in preparing, formulating and filing a Federal Disability Retirement application takes an extraordinary effort of coordinating a multi-faceted administrative process: of obtaining the proper medical documentation; of streamlining and making decisions as to which documents are not only relevant and compelling, but moreover, will advance the essence of the narrative of one’s medical condition; of formulating an effective statement of one’s medical disability and the impact upon one’s inability to perform one or more of the essential elements of one’s job; of predicting and, if necessary, preempting what a Supervisor may or may not state; of addressing legal arguments which the Office of Personnel Management may make in its initial review of a Federal Disability Retirement application. The work to be done and the road one must travel, in preparing, formulating and filing a Federal Disability Retirement application, is analogous to anything and everything one encounters in the course of living a life: mastery of a craft is difficult; to become a master, one must prepare well. I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways: · View the FERS Disability Retirement website or the U.S. Postal Service Disability Retirement blog · Email me at federal.lawyer@yahoo.com · Call me at 1-800-990-7932 Sincerely, Robert R. McGill, Esquire Man, capable of moral behavior, suited with intelligence and cunning, endowed with creativity and foresight; yet, the only animal capable of unfettered cruelty just for the sake of self-amusement. Why is this so? Having so many advantages, why does he lack in fulfillment of his potential? -- From Man and Philosophy OPM Disability Retirement under FERS or CSRS: While the Law may favor the Applicant, the Process does not (10/29/2010) There is often a suspicion that certain forums are “weighted” in favor of the government. In speaking with Federal and Postal Workers who are contemplating filing for Federal Disability Retirement benefits from the Office of Personnel Management, a concern which often surfaces repeatedly is that the Merit Systems Protection Board is “weighted” in the government’s favor. While it may be true that the MSPB may find in favor of the Federal Government and its agencies in a majority of cases, this does not necessarily mean that there is a bias on the part of the Administrative Judges. In many cases, appeals to the MSPB are brought by unrepresented individuals (“pro se” appellants), and therefore never stand a chance at winning against seasoned agency lawyers. Further, because the law allows for wide discretion on the part of Agencies to dismiss Federal workers for the “efficiency of the Federal Service,” the laws themselves may favor the Federal Government, which therefore has little to do with how a judge rules. Judges are supposed to apply and follow “the law”. An exception to the idea that Agencies normally prevail against Federal or Postal Workers, should be found in Federal Disability Retirement cases under FERS or CSRS. Why should this be so? This is because Federal Disability Retirement laws are heavily weighted in favor of the applicant who is filing for Federal Disability Retirement benefits. Here are at least five (5) examples where the laws governing Federal Disability Retirement benefits is weighted in favor of the Federal or Postal Worker filing for Federal Disability Retirement benefits under FERS or CSRS: 1. One needs only prove, by a preponderance of the evidence, that one cannot perform just one (or more) of the essential elements of one’s job. Thus, a Federal or Postal Worker does not have to prove that one is “totally disabled” from gainful employment. It is a much lower standard. 2. Only 18 months of Federal Service (under FERS) is needed in order to be eligible to file for Federal Disability Retirement benefits. 3. “Light Duty” does not constitute an “accommodation” which precludes one from filing for Federal Disability Retirement benefits under FERS or CSRS. Thus, even if the Agency allows for temporary light-duty assignments, the very fact that the Federal or Postal employee is unable to perform the full duties of his or her position allows for eligibility for Federal Disability Retirement benefits. See Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). 4. Being denied by Social Security does not impact one’s FERS or CSRS Disability Retirement application, whereas the converse is true – being approved by SSDI can and often does help to prevail in a Federal Disability Retirement application. See Trevan v. OPM, 69 F.3d 520 (Fed. Cir. 1995). 5. In addition to competent medical evidence, subjective evidence (meaning thereby the personal statements of the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS) of disability and pain must be given “serious weight”. See Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007). Such legal advantage should give great hope for Federal and Postal workers contemplating filing for Federal Disability Retirement benefits under FERS or CSRS. The irony, however, is that because the law is clearly weighted in favor of the Federal or Postal Worker who is filing for Federal Disability Retirement benefits under FERS or CSRS, one may expect greater scrutiny by the Office of Personnel Management in reviewing, evaluating, and approving or disapproving a Federal Disability Retirement application. In other words, the mere fact that the law may be “weighted” in favor of the Federal or Postal Worker does not mean that the process is easier. This is often the case, however unfortunate, in all facets of life: where the substantive rules provide greater advantages, the process of review applies with greater scrutiny. Take, for instance, a recent case published by the Merit Systems Protection Board – Beeler-Smith v. OPM, Docket No. DC-844E-09-0520-I-1, decided October 9, 2009. In Beeler-Smith, the multiple facts clearly favored an approval of a Federal Disability Retirement application under FERS, to include: n Medical conditions which clearly prevented the Applicant from performing her job as a Rural Carrier (where the Applicant’s condition was so severe that she could not bend her knees, stoop down or lift mail tubs or trays without assistance from her coworkers; where she actually had to lift her leg with her hand to use the brake of the vehicle; where she had to use a cane to walk; and where the doctor stated that she was a danger to herself and to others while driving). n SSDI benefits were awarded n The Supervisor’s Statement stated that the Applicant had a performance deficiency The Agency Certification of Reassignment and Accommodation Efforts (SF 3112D) showed that the Applicant’s condition could not be accommodated, and she did not refuse an offer of reassignment These are just some of the facts – almost irrefutable and eye-opening in considering the severity of the medical conditions, the unequivocal factual support in favor of a Federal Disability Retirement application, etc. – which makes one pause in asking the questions: How could the Office of Personnel Management deny such a Federal Disability Retirement application at the Initial Stage of the process? How could the Office of Personnel Management deny the case at the Reconsideration Stage? How could the Administrative Judge deny the initial appeal at the Merit Systems Protection Board? Ultimately, in a Petition for Review, the Merit Systems Protection Board reversed the initial decision rendered by the Administrative Judge at the Hearing Level. While an allegation of bias by the Administrative Judge was sidestepped as an irrelevant issue by the reviewing Administrative Judges, the fact that this was the Appellant’s second attempt at obtaining Federal Disability Retirement benefits probably played a prominent role. One suspects that, given all of the medical conditions, facts, and legal support which favored a quick and speedy approval, the underlying reasons for the multiple denials had something to do with a higher level of scrutiny of the application. The fact that there are multiple laws which create an advantageous forum does not necessarily imply an easier process. Often, the opposite is true: substantive laws which favor one side over another invite for greater scrutiny, and require that the applicant “cross all Ts and dot all Is” – and not lazily rely upon the weighted advantage. I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways: * View the Federal Disability Retirement Blog or the U.S. Postal Service Disability Retirement blog * Email me at federal.lawyer@yahoo.com * Call me at 1-800-990-7932
Sincerely, Robert R. McGill, Esquire |
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Is there a correlation between cleverness and the want of one to talk about one’s self? Does the fox not puff himself up incessantly, and with the slyness of his reputation, disarm the opponent, the enemy, or the target of his feast for his evening meal? Or the crow who craws without end; does he not speak of himself? Yet, the cheetah, the quiet one who, when he walks slowly past a potentially prey, neither speaks nor needs to speak. For the quiet of his strength need not be spoken of; the strength of his ferocity need not be stated in words; and the swiftness of its ability to kill – one merely shudders with quietude and respect. For there is no “I” for a cheetah; only a trailing blur and the salty smell of sweat that comes only from fear. -- From The Personhood of the I Federal and Postal Disability Retirement: SF 3112A (7/20/2010) The central focus of preparing a Federal Disability Retirement application under FERS or CSRS is the Applicant’s Statement of Disability – the Standard Form 3112A. All applicants who are filing for Federal Disability Retirement benefits must complete this form – regardless of whether one is under FERS or CSRS. It is a daunting, foreboding (and some would say, forbidding) form. People approach this form with fear and loathing, and for very good reasons: It requires the applicant to discuss the most personal aspects of the case: one’s medical condition and the impact of one’s medical conditions upon one’s job. To a large extent, the SF 3112A is the crux and the crucible of a Federal Disability Retirement application. It is where the focus of debate will center upon, for it is precisely the forum where the applicant is making the claim that he or she is entitled and eligible for Federal Disability Retirement benefits under FERS or CSRS. If you imagine a large exhibit with multiple ‘boxes’ to show how various entities are related to each other, the SF 3112A would be the largest box, and the one in the epicenter – with all other boxes pointing to the centrality of SF 3112A. For, all of the other submissions – from the Supervisor’s Statement (SF 3112B) to the Agency Certification of Reassignment and Accommodation Efforts (SF 3112D); to the Application for Immediate Retirement, Schedules A, B & C, and all of the other “forms” – all of them either attack, defend, or support the SF 3112A in one way or another. If the SF 3112A appears intimidating, it is written in a way where it is obviously meant to be that way. Question 4 asks the Applicant to “fully describe” one’s diseases and injuries, and then immediately follows with a warning: “We consider only the diseases and/or injuries you discuss in this application.” Thus, at the outset, the Office of Personnel Management is requiring of the Applicant two (2) things: (1) That you discuss any and all of the most personal medical information, with the open-ended imperative that you must “fully” describe your medical conditions, and (2) a clear warning that if you omit something, then such an omission may be disallowed (implying that it may endanger the entirety of the Federal Disability Retirement application). The natural inclination in response to Block 4 of SF 3112A, of course, is to list every medical condition ever suffered, from the beginning of time to the unforeseen future. To approach this question in such a methodology (or lack thereof), would be a mistake; and further, it may be counterproductive. For, if the Office of Personnel Management approves a Federal Disability Retirement application based upon a secondary medical condition which may be neither permanent nor of long duration, then if later an approved annuitant is requested to fill out a Medical Questionnaire for an updated status of his or her medical condition – well, you can guess what may happen. Next, in Block 5 of SF 3112A, Applicant’s Statement of Disability – it asks the applicant to describe how the particular disease or injury (discussed and described in the previous block) “interferes” with the performance of one’s duties, attendance or conduct. Now, the concept of “interferes” is a rather “softened” statement of the law. And that is one of the problems with Block 5 of SF 3112A – it gives no guidance as to the requirements of the law. For instance, in the prevailing and longstanding law on the matter, as stated in Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals for the Federal Circuit set the applicable standard for disability retirement determinations, stating that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.” Thus, the language under the law provides a much “harsher” standard in comparison to the language contained in SF 3112A – as well as a more “expansive” criteria for eligibility. The term “deficiency” provides a clearer guideline as to what needs to be discussed when bridging the two primary conceptual entities: one’s medical conditions, and one’s job. Compare that with the nebulous word, “interferes”, as if mere interruption or temporary influence of one’s medical conditions upon one’s ability to perform one’s job, is enough to meet the eligibility criteria for Federal Disability Retirement benefits. Don’t allow for the language to disarm you; “interfere” is not the legal criteria to be followed. Furthermore, Bruner expands the definitional criteria of eligibility for Federal Disability Retirement benefits by introducing the concept of “incompatibility” with either “useful service” or “retention” in the position – a concept which is nowhere contained in the word “interferes”. And, indeed, Bruner is a 1993 U.S. Court of Appeals for the Federal Circuit case. There are many, many cases which have come after Bruner, which further refine and somewhat expand the definitional foundation of eligibility and entitlement to Federal Disability Retirement benefits. For, what Bruner is saying, in effect, is: Even if you don’t have any service deficiency with respect to performance, even if you don’t have any service deficiency with respect to conduct, and even if you don’t have any service deficiency with respect to attendance – you may still be eligible for Federal Disability Retirement benefits under FERS or CSRS if it can be shown that your medical condition is “incompatible” with either useful service or retention in the position. And isn’t this the crux and crucible for most Federal Employees? Don’t most of you work yourselves raw until you are no longer able to work, anymore? Such loyalty results in the self-defeating evidence when it comes to filing for Federal Disability Retirement benefits, and further, when you are completing SF 3112A: the Federal or Postal employee has an excellent record of attendance; the performance reviews are outstanding; and there are no conduct issues. Thus, when one begins to fill out Block 5 of SF 3112A, Applicant’s Statement of Disability – just after it asks the potential applicant to describe one’s diseases and injuries -- how can one argue about how those medical conditions “interfere” with the performance of one’s duties, attendance or conduct? And so the person – that discouraged Federal or Postal employee who can barely get up in the morning to be dragged out of bed -- puts aside the Federal Disability Retirement application because he or she has made a determination of ineligibility. You have just done the work for the Office of Personnel Management. All because a form carefully chose the word, “interferes”. Remember that words are chosen carefully – whether by an individual, a group, or an Agency. But carefully chosen words rarely comprise the “full story”, and this is certainly the case when completing the SF 3112A in preparing a Federal Disability Retirement application. The “full story” must always embrace the full expanse of the law, and for that, one should consult with, and obtain the advice of an attorney who is knowledgeable about Federal Disability Retirement law. |
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To the mouse, the cat is a giant; to the cat, the dog is
gargantuan; to the dog, the bear is massive; and so we come to
man. What manner of perspective is viewed by the universe which
surrounds him? Slight in build; neither agile nor quick; he
cannot fly as the eagle, nor run like the cheetah; yet, the rest
of the animal kingdom fears him. Why? For his ability to foresee
and plan, to devise and to conquer. Man is above all to be
feared, for he can be cruel beyond the likes of an animal.
Indeed, he is the only animal who can actually fulfill the
basest definition of what it means to be an animal.
-- Reflections upon Man Federal Disability Retirement under FERS or CSRS: Understanding the Different Perspectives and Differing Interests (5/15/2010) As with most things
in life, attempting to secure a Federal Disability Retirement
annuity under FERS or CSRS requires an extraordinary amount of
time, effort, planning, and the collection, formulation and
coordination of a compendium of information. Multiple questions
arise at the early stages of planning: Can I live on 60% of the
average of one’s highest-3 consecutive years of salary for the
first year, then upon the second and subsequent years at 40%
(planning stage)? Will my doctor support me (collection of
information stage)? How must it be stated, and what must be
stated, on the Applicant’s Statement of Disability (Standard
Form 3112A, both for FERS & CSRS) (formulation stage)? How do I
get the doctor to cooperate, make sure my Supervisor does his or
her portion, and who fills out the Agency Certification of
Reassignment and Accommodation Efforts (SF 3112D) (coordination
stage)? And these are just a small fraction of the questions one
needs to ask in preparing to file for Federal Disability
Retirement benefits.
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If a word can mean more than one thing, must it have an equal number of corresponding objects in the world in order for the word to be real? Must each word correspond to something in “the world” in order for the word to have any meaning? If a word has no corresponding reference to the “real world”, is it really a word, or merely made-up nonsense, without meaning, like Bertrand Russell’s clever and mischievous statement, “The present king of France is bald”. Since there is no king of France, can it make any sense that the statement refers to baldness without an existing king? Yet, we know the meaning; and so perhaps words can be nonsense while having meaning. -- From Philosophical Conundrums FERS & CSRS Disability Retirement Benefits: The Difference between ‘Accommodation’ used in a General Sense, and in a Legal Sense When a Federal or Postal employee files an application for Federal Disability Retirement benefits under FERS or CSRS, one of the many issues immediately introduced, and which must be confronted, is the legal issue of “accommodation”. The fact that you can show that a medical condition prevents you from performing one or more of the essential elements of your job, is merely the first step in proving eligibility for Federal Disability Retirement benefits. Can the Agency ‘accommodate’ the individual’s medical condition? Is the action initiated by the Agency a legally viable ‘accommodation’ such that it can prevent eligibility for disability retirement benefits? Or, as in most cases, are the actions merely ‘accommodating’ measures which do not rise to the level of a ‘legal accommodation’? The prevailing Court cases which govern the issue of accommodations in Federal Disability Retirement law continues to be the United States Court of Appeals for the Federal Circuit case, Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001) (and its companion case, which extended the same concept to FERS employees, in Marino v. OPM, 243 F.3d 1375 (Fed. Cir. 2001) ). The impact of Bracey and Marino have been previously discussed in other articles; for purposes of the present discussion, it is sufficient to point out that both cases essentially stand for the legal proposition that an agency cannot prevent a Federal or Postal employee from being eligible for Federal Disability Retirement benefits "by assigning an injured employee to an ad hoc set of light duties as long as it continues to pay the employee at the same level as before". (Bracey, 236 F.3d 1356, at p. 1362) This is the clearest way of understanding the distinction between the ‘legal’ sense of the term ‘accommodation’, and the ‘general’ sense of the term. In the general sense of the term, an Agency’s efforts to accommodate a Federal or Postal employee in the workplace are indeed a laudable goal and mission. Don’t misunderstand the import of what the Court in Bracey stated: if an Agency wants to retain a valued employee, there is nothing wrong, nefarious or improper with assigning an injured employee an ad hoc set of light duties, and continue to pay the employee at the same level as before. The primary issue is whether or not assigning such an ad hoc set of duties will preclude and prevent one from filing for, and obtaining, Federal Disability Retirement benefits from the Office of Personnel Management. The answer can be found in the manner in which the U.S. Merit System Protection Board interprets the Bracey and Marino cases. A true test and application of the distinction between the ‘legal’ sense of the term, and the ‘general’ sense of the term, can be seen in the case of Selby v. OPM, Docket #SF-844E-05-0118-I-1 (June 9, 2006). This is an especially interesting case because of the factual setting, and the legal application of the principles espoused in Bracey and Marino. The factual setting of this case is interesting for a number of reasons: First, the “unrebutted evidence shows that the light-duty assignments performed by the appellant bore no relation to the essential duties of his official position,” thereby fitting nicely into the Bracey view concerning “ad hoc” duties; Second, the appellant was only working 6 hours per day, and performed many clerical duties (which clearly were not part of his position description as a Tool Room Mechanic), and received two hours of OWCP compensation per day; and Third, the appellant filed for Federal Disability Retirement benefits after he had been separated from Federal Service pursuant to a reduction-in-force (RIF). In other words, this is a case which, as a factual paradigm, would test the applicability of Bracey and Marino, because it shows that the appellant: (A) continued to work in his “position”; (B) was “accommodated” (in the general sense, not the legal sense) by his Agency, and (C) did not even file for disability retirement because of his medical condition (he had been working in his light-duty position since 1986, and did not get a RIF until August, 2003), but rather, he filed for Federal Disability Retirement benefits because he had been separated from Federal Service pursuant to a RIF. The Merit System Protection Board sided with the Appellant, and upheld the Administrative Judge’s decision that the Appellant was entitled to disability retirement benefits. What is especially interesting is that the dissenting Judge in this case argued that it wasn’t “logical” that the appellant should be deemed “disabled,” since he was able to work all of those years up until the time he was separated because his job was terminated (the decision was a 2 – 1 decision in favor of granting disability retirement benefits). But this is not an issue of logic; rather, it is an issue of applying the precedential case of Bracey and Marino, and following what the law demands by the higher and authoritative U.S. Court of Appeals for the Federal Circuit. The concept of being “disabled” must be understood in the narrow and legal sense of the term when applying it within the purview of Federal Disability Retirement laws. “Disabled” means that one is unable to perform one or more of the essential elements of one’s job – not whether he couldn’t do any job at all. Clearly, from 1986 until his separation from Federal Service in 2003, the appellant was working – but working how? He was working in a light-duty position; he was working only 6 hours per day; and he was receiving 2 hours of OWCP compensation per day. This last fact should not be misunderstood as to its import and significance, for the MSPB itself emphasized this very point: “The fact that he (the appellant) was receiving two hours of workers compensation a day also buttresses his claim that his injuries prevented him from performing many of the critical elements of his position.” Part of being able to perform the essential elements of one’s position, is to be able to perform the full panoply of the position – including the full 8 hours of work required. The issue here is not whether or not the Appellant was “disabled”; the issue is whether the Appellant was disabled from one or more of the essential elements of his job. Further, what one must understand – and what the factual scenario of Selby v. OPM clearly shows -- is that the Appellant, Mr. Selby, could have filed for disability retirement benefits at any time during the period from 1986 – August, 2003, as well as for up to one year after being separated from Federal Service. It was laudable that Mr. Selby’s Agency allowed him to work in a light-duty capacity; it was laudable that Mr. Selby continued to work from 1986 until his separation from Federal Service in 2003, and was willing to do all sorts of ad hoc jobs, duties and tasks. None of this, however, prevented him from being continuously eligible for Federal Disability Retirement benefits. As the two Administrative Judges in Selby v. OPM stated, “Where, as here, an employee is given a light-duty assignment that does not enable him to continue performing the critical or essential elements of his official position, Bracey compels a finding that he has not been afforded an accommodation disqualifying his entitlement to a disability annuity.” The term and concept of “accommodation” has a narrow, specific meaning when used in the context of Federal Disability Retirements laws under FERS & CSRS. There is also a more general, non-legal use of the term, but every Federal and Postal employee who is considering filing for Federal Disability Retirement benefits must understand the distinction between the two. The meaning of a word is important in determining its significance within the proper context and use of the term. Here, the term “accommodation” has a specific meaning within a narrow context. Know the term, within the proper context, in order to understand the use of the term. Otherwise, one’s lack of knowledge may be to the detriment of being eligible for Federal or Postal Disability Retirement benefits. |
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When the cat had cornered
the mouse in the farmer’s barn, the only place which the mouse discovered
to hide was behind the stock of the farmer’s double-barrel shotgun
leaning against the wall; and when the dog chased the cat later
in the week, the cat tried in vain to climb up the length of the
same silent shotgun; and when the bewildered cow stampeded towards
the irritating bark of the dog, the dog ran with its tail between
its hind legs right past the steely double barrels. It was
only later in the night, when the fox tried to invade the chicken
coop, that the shotgun was picked up – by the farmer, the only one
who knew what the shotgun was for, and how to use it.
-- Anonymous
Federal Disability Retirement: The Full Arsenal of Weapons (2/2/10)When a Federal or Postal Employee decides to file for Federal Disability Retirement benefits, he or she is confronted with a compendium of “Standard Forms” – from SF 3107 (2801 for CSRS employees), to the 3112 series (for both CSRS & FERS employees). The initial reaction in confronting the multiplicity of forms is usually an admixture of anxiety, puzzlement, disbelief, confusion, and concern. Indeed, it is understandable that individuals filing for medical disability retirement will often feel overwhelmed by the need to answer questions which – depending upon what information is provided, and how it is characterized – will determine the outcome of a Federal Disability Retirement application. Furthermore, while the
completion of the Standard Forms themselves comprise an essential
element of the Federal Disability Retirement packet, it is merely
one element. The forms themselves merely provide:
Beyond the Standard
Forms, however, there is a need by the applicant to recognize that
an effective Disability Retirement application is surrounded by
a plethora of statutes, case-law holdings (Legal Opinions rendered
by Administrative Law Judges at the Merit Systems Protection Board,
by the Federal Circuit Court of Appeals, and other legal jurisdictional
forums), and persuasive peripheral elements. These comprise
the “full arsenal of weapons” which, depending upon each individual
case, need to be utilized in the proper tailoring and customization
of a particular case, depending upon the unique facts and medical
circumstances of the case. Some of the “arsenal of weapons”
which can be used, may include the following (and this is by no
means an exhaustive list, but a minor sampling):
These are just a small slice of the larger arsenal of weapons – legal, procedural, and substantive – which can be used, and should be used, when it is appropriate. And appropriateness is determined by the individual tailoring needs of each particular case, based upon the unique facts and circumstances, the medical conditions, the impact of such medical conditions upon the particular kind of job one engages in, etc. This is why an attorney who is experienced in Federal Disability Retirement Law can be of assistance – based upon the attorney’s experience, legal knowledge, and discretionary judgment as to the needs of each case. Like the mouse, the cat and the dog who knew not what weapon lay in the arsenal of the barn, a Federal Disability Retirement applicant should not enter into the fray without knowing which weapons to use, and how to use them. For more information, contact me in one of these
ways: Federal Disability Retirement and the Postal Employee Today * Email me at federal.lawyer@yahoo.com * Call me at 1-800-990-7932
Sincerely, Robert R. McGill, Esquire |
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FEDERAL DISABILITY RETIREMENT
LAWS, MEDICAL CONDITIONS, AND THE INTERSECTING COMPLICATIONS WITH
OWCP, SOCIAL SECURITY AND FERS & CSRS
The story is told of the fawn that came upon its own reflection in the lake, and stared ceaselessly with fascination into the mysterious parallel universe which confronted it. It could not comprehend the beauty of this creature staring back at her, with the serenity of the vast pasture of blue and white sparkling in the background. As nightfall came, the herd of deer moved on to safe havens within the forest; this particular fawn, fascinated by the complexity inherent in this untouchable universe, mesmerized by its unknowability, waited in frozen suspense – only to be found the next morning, a rotting, half-eaten carcass fed upon by morning vultures. It is indeed a complex world. The multiple issues surrounding Federal Disability Retirement Laws, the Civil Service Retirement System (CSRS), the Federal Employees Retirement System (FERS), the intersection between such benefits received under Federal Disability Retirement and the choices to be made with benefits potentially received from the Office of Workers Compensation Programs (OWCP), the difference between Temporary Total Disability benefits and a Scheduled Award, and further compounded by Social Security Disability Insurance (SSDI) payments; and add to all of this the aggressive implementation of the National Reassessment Program initiated by the U.S. Postal Service and -- have you paused, yet, to take a breath? I receive telephone calls
weekly by Federal and Postal employees who are scared, confused,
concerned and puzzled by the maze of information, the conflicting
(or apparently conflicting) nature of the vast amount of information
“out there” in the world of the Internet. The Internet is
a wonderful arena of information; information, properly understood
and verified for accuracy, can lead to proper choices being made.
Too much information, on the other hand, can lead one to confusion
and an inability to make the “right” choices. Extrapolating
from this vast universe of information, this Article is meant to
provide some meaningful guidance for the Federal and Postal employee
considering filing for Federal Disability Retirement benefits under
CSRS or FERS. In order to clarify some
of the maze of confusion, the following will attempt to somewhat
systematically categorize the cornucopia of information out there.
Like the fawn in the fable, it is important to resist being frozen
by the vastness of the information “out there”, and to simplify
the information into compartments of understandable portions:
1. If it is merely a matter of money – i.e., the highest income, without regard to other issues – and the Federal or Postal employee suffers a partial or total disability as a result of an injury incurred at work, then the Federal Employee’s Compensation Act (FECA), (otherwise known as “Federal Workers Compensation”,
or OWCP or Department of Labor/OWCP) is the path to follow.
However, you must understand that FECA is not a retirement
system. This concept is an important one to ponder
and follow to its logical conclusion. Because it is not a
retirement system, it is instead a system in which an injured Federal
or Postal employee is compensated for, during the time of disability,
with a view towards returning the Federal or Postal
employee back to work. As such, as part of its “program”,
benefits consist of cash compensation equaling two-thirds of lost
earning capacity if the Federal or Postal Worker has no dependents,
or three-fourths of lost earning capacity if the worker has dependents.
Thus, a Federal or Postal Worker with a dependent would be receiving
75% of one’s gross salary, and that is indeed an attractive benefit.
On top of it all, FECA benefits are not subject to income taxes.
Again, this is a good benefit if it is merely a matter of money
and, I would add, if the medical condition & injury appears to be
of a temporary nature. 2. FECA (OWCP/Federal
Workers Compensation) covers Federal and Postal Employees immediately
upon employment. It does not have the legal criteria, as is
the case under FERS & CSRS disability retirement, of meeting minimum
eligibility requirements of a certain number of years of Federal
Service (for CSRS, 5 years – which, if one pauses and thinks about
it, anyone who is under CSRS should already meet that requirement;
for FERS, a minimum of 18 months of Federal Service). Thus,
for the Federal or Postal employee who walks into his Federal Office
Building on the first (or 10 thousandth) day of work, slips and
breaks a leg, FECA is probably a good Federal benefit to file for.
But FECA does not just pay cash compensation – it also provides
for payment of medical expenses related to the work-related illness
or injury, as well as “vocational rehabilitation assistance” and
“payment for attendant care services”. These other “benefits”
are where the problems arise; for, anyone who has been under the
thumb of FECA is well-aware of the multiple and oppressive problems:
From getting approval for a diagnostic test or surgery; to having
the Vocational Rehab Nurse sitting in on the doctor-patient appointment;
to sending the Federal or Postal employee to a Second-opinion doctor
(or a “referee” Third opinion doctor) who miraculously declares
that there is nothing wrong with the employee, and he or she may
“return to full duty”. 3. FERS and
CSRS disability retirement benefits have the overall advantage for
any Federal or Postal Employee who has a minimum of 18 months of
Federal Service (for FERS employees) or 5 years (for CSRS employees),
who realize that the medical disability that one has, is impacting
the ability to perform one or more of the essential elements of
one’s job; that the medical condition will last for a minimum of
12 months; and most importantly, that the future requires that one
thinks not only about the present financial compensation, but about
one’s future employment, future potential earnings, and future potential
benefits. Thus, FECA payments should normally be looked at
as a temporary benefit for a limited duration of time, in order
to medically recover to go back to work. That is certainly
how OWCP views it. Of course, if you are receiving FECA payments,
you may also apply for Federal Disability Retirement benefits under
FERS & CSRS, and then elect to stay on OWCP, and keep the approved
FERS or CSRS disability retirement benefits “in limbo”; and, technically,
one may switch back and forth between the two – although, as a practical
matter, the headaches inherent in attempting to do so are more prohibitive
than the regulations would make you think. 4. Remember
that FERS and CSRS disability retirement benefits are just that
– they are retirement benefits. Just as there
are logical consequences for staying under a non-retirement benefit
such as FECA (such as being compelled to undergo vocational rehabilitation
in order to place you in a job -- any job -- in order
to get you “back to work”; or being sent to a Second or Third Opinion
doctor for determination of your medical condition), there are logical
advantages to being medically “retired” under OPM disability retirement.
Such logical advantages include: being able to work in some
other capacity and earning up to 80% of what your former Federal
or Postal position currently pays; receiving Cost of Living Adjustments
after the first 12 months; not being subjected to the onerous FECA
rules and regulations; having your years on Federal Disability Retirement
count towards your total number of years of Federal Service, which
is important when your Federal Disability Retirement benefit gets
recalculated as “regular retirement” when you turn age 62; being
able to live in retirement, yet to pursue a second career; and other
benefits. Of course, under FERS, the Federal or Postal Employee
who files for Federal Disability Retirement benefits must also file
for Social Security Disability benefits, also. This, because
the Federal Government wants to determine whether you qualify not
only as an individual medically disabled from your particular Federal
or Postal job, but further, from any gainful employment at all.
If it is found that you qualify under SSDI as well as under FERS
disability retirement, then there is a coordinating offset of benefits
– 100% offset in the first year, and 60% offset every year thereafter,
until age 62. 5. Do you actually want to get SSDI, as well as FERS Disability Retirement
benefits? Generally speaking, this question is normally a
moot point, because most people who qualify for Federal Disability
Retirement benefits under FERS do not concurrently qualify for Social
Security Disability benefits (SSDI). This is because SSDI
has a “higher legal standard” – one of “total disability” from gainful
employment, as opposed to being disabled from being able to perform
one or more of the essential elements of one’s Federal or Postal
job. Here are the three essential rules (in my view) concerning
SSDI: First, you need to get a receipt showing you filed for
SSDI at or before the time of approval of the Federal Disability
Retirement application by the Office of Personnel Management; Second,
if the SSDI application is denied, it will not impact your FERS
Federal Disability Retirement application; Third, if your SSDI is
approved, you need to inform the Office of Personnel Management
as soon as possible, for two reasons: One, the SSDI approval
can legally help you get your FERS Disability Retirement application
approved, and Two, because there is an offset of payments, OPM needs
to be informed of the approval. The above compartments
of information comprise only a miniscule fraction of the greater,
macro-aggregate of information “out there”. For instance,
I have not even touched upon the issue of SSDI ceilings of earned
income; of what happens when an individual reaches “Substantial
Gainful Activity” (SGA); of the advantage of filing for a Scheduled
Award while switching over to OPM Federal Disability Retirement
benefits (because a Scheduled Award can be received from FECA concurrently
with OPM disability retirement benefits); and further, the entire
impact of the National Reassessment Program (NRP) implemented by
the U.S. Postal Service to essentially throw everyone who is not
“fully productive” in his or her craft back onto OWCP roles, and
whether or not OWCP will automatically respond by reinstituting
compensatory benefits (not very likely to be “automatic”), and what
this means for the Postal employee who should certainly consider
filing for Federal Disability Retirement benefits under FERS; or
the Federal Employee who works for the FAA and loses his or her
medical certification – does this automatically insure that one
is eligible for Federal Disability Retirement benefits (answer:
No it does not); or the vast and multitudinous issues that surround
the universe of medical conditions, the Federal or Postal Employee,
FECA, FERS & CSRS. The world is indeed a complex place, with complex issues and a vast universe of information. The key to all of this is to resist acting like the fawn in the fable – do not get mesmerized by the vast complexity of it all; instead, wade through the information, and consider consulting an attorney who is knowledgeable about the legal issues which impact your life.
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New Developments in Federal
Disability Retirement (7/23/09)
When the law "works", it is indeed a benefit to society. Now, cynics will view the "working of law" as that which benefits one side of the equation, while undermining or damaging the "opponent's" side of the case. Thus, according to this perspective, every case, every decision, every statute is simply the natural consequence resulting from the adversarial process – where there are winners and losers. A corollary of this view encompasses the idea that "history" is merely that which is written by the prevailing power-structure, and that no objective standard of historical analysis exists, but merely subjective perspectives combined with power, position, and advantage.
Yet, as the Aristotelian view is
that man's essence is constituted by his rational nature, so the
evolution of case-law, expanded, delineated and explained by Court
decisions rendered over time, reveal that rationality and reasoned
approaches to complex problems reflect a logical structure.
Legal refinements pursuant to the initial passage of a statute
are the inevitable evolving process of the law. When the application
of rational principles and the rules of logic reflect a reasoned
perspective, it tends to benefit society as a whole.
A recent case, decided on July 15,
2009, reflects a rational, reasoned approach, and benefits all
Federal and Postal employees who become disabled while employed
by the Federal Government, and who find a need to file for Federal
Disability Retirement Benefits under FERS or CSRS. Yes,
it is a case decided by the U.S. Court of Appeals for the Federal
Circuit, where there were two "litigants", and yes, one side won,
and the other side lost.
But the mere fact that there are
winners and losers does not mean that the proper law was not decided;
rather, when a decision is rendered with structural compliance
with statutory authority, with reasoned principles delineated
concisely, one may objectively declare that the "law" is working.
It represents a "good day" when Federal and Postal employees are
reinforced with "the law". The principles expounded may
not immediately benefit the Federal or Postal employee today or
tomorrow; but when the need for filing for Federal disability
retirement benefits comes to fruition, the benefit of today's
good law will be there for you.
Before I briefly discuss the "new"
case, however, let me set the scene with what I consider a consistent,
reasoned and logical "foundational" case – almost a precursor
of the present case. Previously, I had written a number of articles
on the recent case of Vanieken-Ryals v. OPM, 508 F.3d
1034 (Fed. Cir. 2007), precisely because it represented a major
(and, in my view, a correct) decision which "toppled" an irrational
imposition of a baseless standard championed by OPM -- that there
is a distinction to be made between "objective" as opposed to
"subjective" evidence concerning validity of medical findings
(example of the absurdity: How do you prove the existence of pain?
While an MRI may show a given physical
condition, you cannot prove that such a physical condition equates
to pain, leaving aside any quantification of such pain. Indeed,
all that can be shown would be, at most, a 1-to-1 correspondence
between an image of a dysfunction which exists simultaneously
with a private sensation known as "pain". Similarly, how do you
prove the existence of Major Depression? Anxiety?
Panic attacks?). Thus, the false imposition by the Office of Personnel
Management of a legal standard (which, by the way, is not delineated
in any statutory authority, as pointed out by the Court in
Vanieken-Ryals) was correctly swept away by the Federal Circuit
Court.
Further, Vanieken-Ryals
stood for the proposition that, so long as a Disability retirement
applicant's treating doctor arrives at the medical opinion based
upon "established diagnostic criteria" which are "not inconsistent
with generally accepted professional standards", unless OPM can
attack the credentials or veracity of the medical opinions, proper
probative weight must be given both by OPM and by the Merit Systems
Protection Board in reviewing, evaluating, and rendering a decision
on a Federal disability retirement application.
Vanieken-Ryals
stands for the important proposition that, absent a statutory
basis, a federal agency (i.e., The Office of Personnel Management)
will not be allowed to arbitrarily impose legal standards which
are non-existent, which were never mandated by Congress, and which
are not grounded in a sound, legally-defensible, rational basis.
Now,
Reilly v. OPM, decided July 15, 2009 by the United
States Court of Appeals for the Federal Circuit, has toppled another
idol of a false standard imposed by OPM: that medical documentation
which post-dates separation from Federal Service may be considered
near-irrelevant in evaluating and reviewing a Federal disability
retirement application.
This has never made sense, for at
least 2 reasons: First, since a person is allowed to file for
Federal disability retirement benefits within 1 year of being
separated from service, why would medical documentation dated
after the separation be considered irrelevant? Second, and
certainly logically connected to the first reason, medical conditions
rarely "appear" suddenly. Most conditions are progressive and
degenerative in nature, and indeed, that is what the Court in
Reilly argues. "The field of forensic medicine abounds
with examples of subsequent medical examinations relevant to a
prior condition," the Court in Reilly argued, citing
the classic example that "inferences about prior intoxication
can be drawn from blood alcohol tests conducted at a later time."
Further, where "proximity in time, lay testimony, or some other
evidence provides the requisite link to the relevant period the
subsequent evidence can be very probative of a prior disability."
Thus, what the Court in Reilly
is stating, is that it makes absolutely no logical sense to allow
a Federal or Postal employee under FERS or CSRS to have the legal
right to file for disability retirement benefits within one (1)
year of being separated from service, and yet have the probative
weight of medical reports post-dating the separation completely
undermined by OPM's baseless assertion that such medical documentation
fails to address the medical conditions during the time of Federal
service.
Here, a caveat is in order:
This is not to say that medical reports and documentation
no longer needs to address and "relate back" to the period of
Federal service; the disability retirement applicant still needs
to create the tripartite nexus between (a) the Federal position,
(b) the medical condition, and (c) the inability to perform the
essential elements of (a) because of (b). This obviously requires
medical documentation which "relates back" to the period of Federal
service.
What the case does
do, however, is to reverse OPM's arbitrary and capricious methodology
of reviewing post-service medical documentation as being irrelevant
and immaterial merely because it fails to directly address the
medical conditions during the time of Federal Service. Certainly,
progressively degenerative conditions can be reasonably argued
to have previously – on the spectrum of linear time – impacted
and prevented the performance of essential elements of a job if
the doctor can describe the severity of the present condition
and compare it to a prior point in time – during the time of Federal
Service.
Furthermore, as a practical matter,
it is still important to try and obtain the proper medical documentation
during the period of Federal Service, for pragmatic reasons:
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Student:
Is it a choice if you can only choose one, and you are only presented
with one? Master: Ah, but does the choosing occur in the act, or in the imagination? Is one limited by what one sees, or by the unlimited desires of a man’s imagination? FERS & CSRS Disability Retirement: Understanding the Complexities of the Law The law is often a compendium of complexities for the lay person. Non-lawyers who enter into the “arena of law” often find it befuddling, confusing, and moreover, against the very grain of what law is “meant” to be. Law is meant to provide “justice”. But if Justice is indeed the goal, one must know, understand, and apply the law properly. This is no less true for those Applicants who are attempting to obtain disability retirement benefits from the Office of Personnel Management. I have written
many articles on multiple issues, over the years, on laws and cases
impacting upon Disability Retirement for FERS & CSRS employees of
the Federal Service. In response to my articles, I have received
many inquiries about the “meaning” of this or that statement I made,
in a particular article I had written, or in an explanatory statement
I made. Often, I am surprised by the question posed, which
prompts me to ask myself: Did I write so badly? Did
I fail to explain myself adequately? Or did the reader misunderstand
what I had written? The truth
is probably a combination of both – that I failed to write clearly
and concisely, and the reader (as a non-lawyer) failed to fully
understand what I meant to convey. This article is meant,
on a microcosmic level, to explain some small part of the law, and
to interpret the language of a case, in order to help the non-lawyer
somewhat understand how to read into legal language.
In the
past, I have often referred to the benefit of securing the “Bruner
Presumption” in a case. The “Bruner Presumption” is so named
from a Federal Circuit Court case, Bruner v. Office of
Personnel Management, 996 F.2d 290 (Fed. Cir. 1993). It
essentially stands for the proposition that, if a Federal employee
under FERS or CSRS is removed for his or her medical inability to
perform the duties of his or her position, that such a specified
removal constitutes “prima facie” evidence of entitlement to disability
retirement. Now, one might interpret this to mean that, because
“prima facie” means “on the face of it”, that nothing further needs
to be done. Disability retirement is a “sure thing”.
Nothing could be further from the truth. For, in the same
breath that the Merit Systems Protection Board speaks about the
Bruner Presumption, the following statement will also always
appear: “Notwithstanding the shifting burdens of production,
however, the appellant retains the burden of persuasion at all times.”
Trevan v. OPM, 69 F.3d 520 (Fed. Cir. 1995).
What this means is that, regardless of the Bruner Presumption,
the appellant always has to provide the underlying medical documentation
to show that he or she was unable to perform the essential elements
of his or her job. Now, to
the above, one might ask: Then, what is the purpose of the
Bruner Presumption? The purpose is essentially
to raise a higher bar against the Office of Personnel Management.
Think about it this way: at an MSPB Hearing, the Office of
Personnel Management has a right to cross-examine witnesses, have
the Supervisor testify over the telephone, etc., to rebut the
Bruner Presumption. In order to fight against this,
the Applicant must present strong medical evidence anyway, to ensure
that the Judge is persuaded of your medical disability.
So, is
the Bruner Presumption of any use? The short answer
is: Yes. It makes any effort by the Office of Personnel
Management to undermine or attack the employee’s disability retirement
application much, much harder. Is the Bruner Presumption
necessary? No. Most people don’t need it, precisely
because, so long as an individual has a supportive doctor who will
provide the necessary nexus between one’s medical condition and
one’s positional duties, there is normally no need for that
“higher bar” to fight against the Office of Personnel Management.
Beyond
this, of course, is the question of how one obtains the Bruner
Presumption. The obvious answer is to be removed for
one’s “medical inability to perform” one’s job. However, most
Agency removal actions are not so cooperative, and that is where
people get into trouble. For instance, what if a person is removed
for being excessively absent, and those absences are as a result
of one’s medical conditions? Shouldn’t the Bruner
Presumption apply in that instance? One would think
so, because of the logical connection which should be able to be
established. Unfortunately, however, it is not that easy –
logic and logical connections do not necessarily prevail in arguing
for the Bruner Presumption before a Merit Systems Protection Board
Administrative Law Judge. Of course, an MSPB Administrative
Judge is himself/herself constrained by legal precedents handed
down by the Federal Circuit Courts and other MSPB cases handed down
by the Full Board. For instance, it has become established
precedent that “removal for extended absences is equivalent to removal
for physical inability to perform where it is accompanied by
specifications indicating that the decision to remove was based
on medical documentation suggesting that the appellant was disabled
and unable to perform her duties.” Ayers-Kavtaradze
v. Office of Personnel Management, 91 M.S.P.R. 397 (2002)
In other words, it is not enough that there exists concurrent medical
documentation supporting – outside of the document proposing to
remove you – that you had a medical condition; rather, the actual
proposal to remove you must specify within the document of proposed
removal a reference of a disabling medical condition.
As you can see, the “arena of
legal battles” can be a complex maze. Lawyers who are familiar
with Disability Retirement laws, statutes, procedures and cases,
are able to (hopefully) maneuver around, through, and over the many
legal landmines which present themselves as obstacles to a Federal
or Postal employee who files for disability retirement benefits
under FERS or CSRS. Because
Disability Retirement is an important benefit available to all Federal
and Postal employees who have a minimum of 18 months of Federal
Service (for FERS) and a minimum of 5 years for CSRS employees,
it is crucial to know the governing laws, statutes, procedures and
cases which impact an application. It is an important benefit which
should be looked upon as an investment to attain a level of financial
security, in the event that a Federal or Postal employee finds that
he or she can no longer perform one or more of the essential elements
of employment. I am an attorney who specializes in obtaining disability
retirement benefits for Federal and Postal employees. To contact
me, you may email me at
federal.lawyer@yahoo.com,
find me at
www.federaldisabilitylawyer. Sincerely, |
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