Tag Archives: Basic Federal Disability Retirement information

OWCP and FERS Disability Future Reviews

There are horror stories: of people on “disability” who are watched and video-taped, and after having 500 hours of taping, it is edited to show that, within a 2-minute period, it is revealed that you can indeed perform physical feats which your medical disability should restrict.

As an attorney who receives daily inquiries concerning Federal Disability Retirement benefits under FERS, people relate such fears to me.  However, I am quick to remind such callers on two (2) matters: First, such stories relate almost exclusively to Federal OWCP cases, which have nothing to do with FERS Disability Retirement, and Second, the people I represent have legitimate medical conditions which impact and prevent one from performing one or more of the essential elements of one’s job.

There is also an additional Third element in the issue, FERS Disability Retirement annuitants are allowed, under the law, to go out and get another job, and to work and make up to 80% of what his or her former position currently pays.

Now, obviously, any such job should be essentially different, in many ways, from the former job.  But the point is that the FERS Disability Retirement is intimately wedded to a particular job, and the inability to perform the essential elements of that particular job.  That is where the difference lies between FERS Disability Retirement rules and OWCP cases — the former allows one to continue to remain productive in the workplace; the other does not.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Attorney

Please note that the information that appears in this article is copyrighted.  Originally written by Attorney Robert R. McGill, it has been more recently updated by the webmaster.  This article has been previously published in other OPM Disability Retirement blogs.

How Important is the SF 3112B Form?

It is amazing how a Supervisor’s Statement is completed.  Normally, it is completed without much thought; sometimes, it is completed with too much thought (and self-protective, CYA language concerning how much effort the agency attempted in “accommodating” the employee, when in fact little or no effort was made); more often than not, there is a last, parting shot at the employee — some unnecessary “dig” which often contradicts other portions of the statement; and, finally, every now and then, the Supervisor’s Statement is completed in the proper manner, with forethought and truthfulness.

Fortunately, the Office of Personnel Management rarely puts much weight on a Supervisor’s Statement in making a determination on a FERS Disability Retirement application — unless there is some glaring statement of a deliberate attempt to undermine the Application.  This is rare, because it is a medical disability retirement, not a Supervisor’s disability retirement — meaning, that it is the medical opinion, not the opinion of a Supervisor, which is (and should be) most important.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

The material provided in this blog has been updated from previous publications such as the Federal Disability Attorney blog and the Lawyers.com blog.

The Essential Elements of a Federal Job

In preparing, compiling, formulating and filing a Federal Disability Retirement application under FERS, one must prove by a preponderance of the evidence (a legal standard which has been set by statute) that a Federal or Postal worker who has a minimum of 18 months of Federal Service and suffers from a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s particular kind of job.

The concept of “essential elements” is variously defined and expanded upon by court cases, but one way to identify the “core elements” of a particular job is to review the position description, and to extrapolate from the official description of the job. Another place, of course, is the Agency’s performance review, which will often identify the core elements.

One should never overlook the obvious, in addition to that which is identified in the position description — the fact that one is required according to the position to work full time; to be “on site” for many jobs (thereby precluding tele-commuting as a viable permanent accommodation); and certain other inherently obvious elements which are often mentioned in passing — such as sitting for long periods of time (a sedentary position); being required to stand or walk for extended periods of time; and other such “essential elements” which make up a position, and are inherently required by the very nature of the job.

Those “obvious” but often unmentioned essential elements are notable for the fundamental requirements of being able to successfully perform a job.  They should not be overlooked.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

Note:  The material provided in this blog has been updated by the webmaster/editor and written originally by Attorney Robert R. McGill in other websites and blogs.

FERS Disability Retirement Applicants

FERS Disability Retirement applicants are especially “vulnerable” because of the inherently precarious financial situation that an applicant often finds him/herself in, and often desperate need for an approval from the Office of Personnel Management (OPM).  Most of the cases that I represent are approved at the First Stage; upon a denial, however, it is necessary to go to the Second Stage, or the “Request for Reconsideration Stage.”  An individual has 30 days from the date of the denial letter to file a request for reconsideration, then another 30 days to obtain and submit additional medical and supporting documentation.

If it is denied a second time, then an applicant has a right to file an appeal to the Merit Systems Protection Board (MSPB).  While the MSPB will hear the case de novo (meaning, “anew” without consideration of OPM’s prior decisions), neverthess, it is important to look upon a disability retirement case as a “case in progress”, and that is why hiring an attorney at the outset is often important.  While most “mistakes” made by an applicant are minor and correctable, everything that is submitted — the applicant’s statement, any records or reports submitted — become part of the record as a whole and cannot be retracted or erased.  That is why a thorough review by a competent attorney is important in filing for FERS Disability Retirement.

Sincerely,

Robert R. McGill, Esquire
OPM Disability Retirement Attorney

The content provided in this article has been updated and previously published in other resources such as the Federal Disability Lawyer website, the OPM Disability Retirement blog and/or the Federal Disability Attorney blog.

Federal Employees with Preexisting Conditions

There is still some questions with respect to the relevance of preexisting medical conditions, or medical conditions which were incurred while working, or outside of the workplace, or even before being employed by the Federal Government; and the impact of such medical disabilities upon one’s right to file for disability retirement under FERS. This confusion is evident from some of the questions I have been recently asked.

Remember that preexisting medical conditions are irrelevant to filing for OPM Disability Retirement benefits, in most cases; the fact that an individual has been able to perform the essential elements of one’s job for many years, but comes to a point in his or her career where the medical condition has been exacerbated, or deteriorated, to the point where it begins to prevent one from performing one or more of the essential elements of one’s job, is all that is needed to be shown.

It matters not that the medical condition “preexisted” one’s Federal service; and, indeed, many of my client’s began working with a VA disability rating, but worked successfully for a number of years, until the medical condition(s) underlying the VA disability rating worsened, or came to a point where it began to impact his or her ability to perform the job functions.

Similarly, whether or not the injury or medical disability was incurred while working or while on a skiing trip, is irrelevant.  The primary point and focus in FERS & CSRS Disability Retirements cases, is that a person has the minimum years of Federal Service (5 years for CSRS; 18 months for FERS), and during the person’s Federal Service, he or she incurred a medical condition such that it prevents one from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

 

The content provided here has been updated and previously published in other websites such as the Federal Disability Lawyer, OPM Disability Retirement and/or Federal Disability Attorney blogs.