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…
Can I continue to carry my government life and health insurance?
ANSWER: Yes. You can continue to carry the same group health insurance that you carried on your last day of employment with the government if: (1) you retire on an immediate annuity, and either (2) you were covered for the five years of government service directly before going onto disability retirement, or (3) if you were covered for less than that five years, you obtained your coverage at the first opportunity you could do so after entering government service. Thereafter, should you for any reason lose your disability retirement, you cannot continue to carry the group policy but are required, if you wish to keep the insurance, to carry the non-group conversion policy then available. An exception: if your disability retirement annuity is later reinstated, you can have the group policy reinstated. Of course, the group policy is always better than the private policy.
As to life insurance, you can continue to carry the same amount of basic life insurance coverage (or less, but not more) than you carried on your last day of federal employment, under rules somewhat similar to those noted above for health insurance.
Special elections and conditions may apply in different circumstances as to both types of insurance, and you should not proceed without careful inquiry. As well, be sure to take the actions within the time limits required to preserve these valuable rights to coverage.
Can I be denied disability retirement if I refuse evaluation or treatment which might reasonably ameliorate the medical condition causing the disability?
ANSWER: That depends on the nature of the medical evaluation or treatment you refuse. You cannot be denied disability retirement for refusing to undergo diagnostic procedures or treatment strategies that are relatively invasive, relatively painful, or may result in further illness. However, in one case an employee's chronic back pain was exacerbated by being overweight. She was denied disability retirement when she refused to accept medical advice to exercise and lose weight.
How much will I collect each month on disability retirement?
ANSWER: The amount you collect each month depends on the federal government retirement system in which you are enrolled. FERS has a simple formula; CSRS requires some calculations.
FERS Employees: First, the good news. Apart from any potential cost of living increases, you will receive 60 percent of your "average pay" the first year you collect and 40 percent of your "average pay" during every other year you collect. "Average pay" is the average amount you earned each year during your three highest consecutive paid years of federal civilian employment.
Now the bad news: all FERS employees are required to apply for Social Security, even if they believe that they are ineligible. The majority of FERS employees who apply are not eligible for Social Security benefits, so their disability retirement annuities will not be affected.
FERS employees who are eligible for Social Security benefits will have their 60/40 percent of average pay annuities adjusted as follows: during the first year, for each dollar that Social Security gives you, FERS will deduct one dollar from your annuity. (This is known as a "wash," a transaction in which gains and losses are exactly equal.) During the second and all succeeding years, for each dollar Social Security gives you, FERS will deduct sixty cents from your annuity. In this case, there is some benefit from Social Security eligibility, but the value of that benefit is greatly diminished.
CSRS Employees: The good news is that you don't have to apply for Social Security. If you do apply and are eligible, your disability retirement annuity won't be reduced. Another bit of good news is that some CSRS employees will receive disability annuities higher then the 60 percent ceiling paid FERS employees. But there's bad news for CSRS employees, too. Although the law assures you a "guaranteed minimum" disability retirement annuity, that minimum can be far lower that the 40% floor paid to FERS employees.
A CSRS annuity is predicated on "average pay," (defined above) just as is a FERS annuity. CSRS employees with less than 22 years of actual service also need to consider an additional factor, known as "creditable service." You compute your "creditable service" by calculating the number of years until you reach age 60, and adding that number to your number of years of federal civil service.
Apart from adjustments in the annuity resulting from the potential application of COLA (cost of living adjustment) rules, CSRS employees can determine their approximate annuities by applying one of the following three rules:
If you have 22 or more years of "creditable service," but less than 22 years of actual service, you will collect 40 percent of "average pay" and you don't have to bother with any other calculations.
If you have 22 or more years of actual service, then don't worry about creditable service at all. Your annuity will be computed under the general formula for regular retirement and you will receive more than 40 percent of "average pay."
If you have less than 22 years of "creditable service," you will receive less than 40% of "average pay," and to find your approximate monthly disability retirement annuity, use the chart that follows.
EARNED RETIREMENT PERCENTAGES BASED OF YEARS OF SERVICE
YEARS OF SERVICE
PERCENT OF HIGH 3-YEAR AVERAGE EARNINGS
YEARS OF SERVICE
PERCENT OF HIGH 3-YEAR AVERAGE EARNINGS
Will OPM check up on me to see if I am still disabled or if I have been restored to earning capacity? If so, how, and how often?
ANSWER: Yes, they will check up on you, but the experience of most of my clients is that they will not harass you to get you off disability retirement. This policy, by the way, is different from that of the Department of Labor, which has a reputation for unrelentingly harassing employees in an effort to get them off workers' compensation. The disability retirement law requires OPM to check on your medical condition at least once a year and also permits them to check up on you whenever they so desire. The results are uneven and sporadic. Some employees are contacted within a few months of going on disability retirement while others are not contacted for years. Although OPM has the power to send annuitants to government-appointed physicians, it usually requires you to have your own physician answer a series of questions, which may be the same or similar to those previously asked on the "Physician's Statement." As to monitoring for restoration of earning capacity, that is done on an annual basis through a questionnaire, and you may, in addition, be required to provide copies of your tax returns.
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.