I worked in the field of OPM Disability Retirement Law for 35 years of the more than 50 years I've been a lawyer. I was a pioneer in the field and won the enormous bulk of my cases on either initial application, reconsideration, or appeal. I successfully handled hundreds of federal employment cases such as accommodation, removal, etc.
Nowadays, I spend my time working on this blog, providing advice to disabled federal employees, and writing my memoir.
If you want to hear about how I learned what Disability Retirement is from my first Disability Retirement client, listen below:
1965-JD University of Miami School of Law
1972-JSD Candidate, Columbia University School of Law
District of Columbia Bar
Attorney, Civil Rights Division, US Office of Economic Opportunity
Attorney, Lawyer’s Committee for Civil Rights Under Law.
Attorney, National Advisory Commission on Civil Disorders
Attorney, National Commission on the Causes and Prevention of Violence
Special Counsel, US Senate, Committee on the District of Columbia
Attorney, US Department of Justice
Director, American Bar Association, Special Committee on Crime Prevention and Control
Director, Courts Task Force, National Advisory Commission on Criminal Justice Standards
Assistant Professor of Law, (Detroit & Baltimore)
Private Law Practice
1978 to Present, Washington, DC
Private Practice Before Disability Retirement
Before working on Disability Retirement, I had a long career in civil rights, security clearances, and other areas. Below are podcasts, stories, and a video about some of those chapters of my life:
I was side-stepping the KKK working as a Federalized civil rights worker In 1966. The civil rights movement in the south was boiling over. Fire hoses, vicious dogs, and barred entry to almost everything if you were black...
In 1966, it was not considered unreasonable or unusual for a white sheriff in a rural county in Mississippi, to detest the Federal government, let alone some white liberal lawyer working for the Federal government...
Running from the KKK: A story about encounter with the KKK at a church in Mississippi. Listen below.
Moscow Party is a podcast about one of the many security clearance cases Harvey handled. It features KGB Agents, monopoly, lesbian affairs, and much much more! An exciting story completely unrelated to disability retirement, but we hope you enjoy nonetheless. Listen below.
CBS AIDS in the Military Video
Before turning to Disability Retirement Law, Harvey was an attorney for members of the US Military, including some who were diagnosed with AIDS and then faced a legal battle with the US Government. In 1982, Dan Rather's CBS Nightly News reported on a number of cases Harvey won for service members with AIDS.
Harvey briefly discusses the issue at the end of the clip.
Jeremy is the webmaster. He runs the blog, keeps track of who is contacting us, and helps Harvey write his memoir. If you are interested in his work, check out his website at www.jmneff.com.
And here is a little interview that I, Harvey, did with Jeremy back in his school days when he first came to work for me.
We have a real problem with Physician’s Statements from doctors who are too busy to spend time writing them and unwilling to go out on a limb to say it like it really is. So you have to work around this.
When it comes to doctors, you have to…
Following up on my earlier post about getting fired for misconduct:
If you are fired for misconduct, that does not mean your agency can wash its hands of you and not cooperate with your claim for Disability Retirement. Your agency is still required…
ANSWER: You don't have to prove it, in the sense of being required to produce objective medical evidence. In certain clear-cut cases (i.e. that of the typist whose hand was cut off), it is easy to prove disability. But such cases are the exceptions. More frequently, disabling symptoms are impossible to prove, and, contrary to popular belief, the law does not require you to do the impossible. Subjective but very disabling symptoms (such as fatigue, chronic pain, phobias, depression, and allergies) are usually impossible to prove, because no objective medical evidence is usually available. Yet they are among the most common disabilities for which government employees seek and obtain a monthly disability annuity. Employees with subjective symptoms, regardless of their medical condition, face the greatest difficulties before OPM.
Sometimes, even when you can provide objective medical evidence to support your claim, OPM may not be interested in looking at it. In one case, I sent a client's x-rays to OPM to demonstrate that he had a slipped disc. OPM refused to accept them, saying that it had no place to store x-rays. You would think that if only to prevent potential fraud, OPM would have demanded such information, not blindly turned it away.
Is it possible to be fired as the result of sickness or injury and yet not qualify for disability retirement?
ANSWER: Yes. You can be fired from your job as the result of a medical condition that precludes you from performing one of the critical elements of your job, and yet you may not be eligible for disability retirement because you do not meet one of the other requirements.
Example: Dagwood, a CSRS employee with four years tenure in federal service, was completely paralyzed from a skiing accident. The agency can legally fire Dagwood on grounds that he can no longer perform one or more of the critical elements of his job. Unfortunately, Dagwood is ineligible for disability retirement because he does not have the requisite five years tenure required by CSRS.
What is the "Supervisor's Statement", and how important is it?
ANSWER: The "Supervisors Statement" is a required form which is nearly identical for both FERS and CSRS employees. It requires the supervisor to provide specific information about your performance, attendance, and behavior on the job. It is assumed that these are reliable indicators of whether you are unable to render "useful and efficient service" and thus whether you are considered disabled from your job.
The importance of the "Supervisor's Statement" varies with the nature of the case and with the individuals at OPM who review it. In short, its impact can't be measured. Since it could be important, you want it to be as much in your favor as possible. To that end, you should encourage your supervisor to provide as helpful a response as is possible. However, even if your supervisor did everything possible to be unhelpful, that would not necessarily prevent you from gaining disability retirement.
If you have previously received satisfactory or excellent evaluations in spite of your declining performance, your supervisor may worry about suddenly having to downplay your performance for the purpose of the disability retirement application. However, this has never been a real problem, given the universal understanding that performance evaluations often have little relationship to performance. Anyway, few would challenge a supervisor who refused to record the diminished performance of a once excellent, but now ailing, subordinate.
How will my doctor react when I ask for help in getting disability retirement?
ANSWER: Probably not very well. Most will not be happy, for a variety of reasons. Here are some of the reasons often expressed by physicians who are asked by patients to help them get disability retirement:
"These questions OPM asks are ridiculous!"
It's absolutely true that at least some of the five questions that doctors are asked to answer on the "Physician's Statement" are either absurd, unintelligible, or medically irrelevant. In fact, the degree to which the physician should consider each and every question varies with the nature of the case. In general, the more subjective the symptoms, the more carefully each of the questions should be dealt with. Unfortunately, this is a difficult judgment call for physicians who don't have any direct experience with OPM's disability retirement program. A primary task of the attorney is to encourage and assist the physician in this task.
"I can't possibly charge for all the time its going to take me to answer these questions!"
Not unreasonably, physicians want to get paid for their time and work. Physicians are often unsure as to how to charge patients for the sometimes great amount of time and work required to properly prepare a "Physician's Statement." It does not fall easily under a predetermined diagnostic code on some form, and insurance will often not cover it. The remedy is to assure your physician that you will pay fully for all the time involved that is not otherwise covered.
"No one will ever believe that this patient is disabled!"
Many doctors, just like most of the rest of us, tend to define a disabled person as some sort of basket case. Doctors are concerned that they will be perceived as dishonest in going to bat for a patient who doesn't appear to fit that picture. The physician needs to come to terms with the disability retirement law, and how it differs from other laws such as workers' compensation. Doctors who are not experienced with disability retirement for government employees do not understand that the program does not require total disability, and it even permits you to work at another job while collecting. But quite truthfully, this is the type of lesson best taught by an attorney with sufficient experience to answer the inevitable questions that the physician is going to raise. If necessary, an attorney can assure a physician that the patient is a proper candidate for disability retirement.
"I'm going to end up in court on this one!"
Most physicians dread the thought of being hauled into court as a witness in any sort of legal matter, let alone in what they perceive as some difficult-to-prove "subjective" symptoms case. Not to worry! Disability retirement cases never make it to court, and rarely ever make it to a hearing at the MSPB. One way to dispel the physician's anxiety on this issue may be by providing a copy of this book as part of your campaign to enlist wholehearted cooperation. If that doesn't work, have your doctor phone me.
I have represented Federal government employees and Postal workers seeking OPM Disability Retirement for a long time. I also represent them in agency leave problems such as AWOL, FMLA, LWOP, etc. Leave problems often come along with being sick and disabled. I have stuck to this area of the law for more than 30 years of the 50 years I have been a lawyer.