Podcast #3: A Good Doctor is the Real Key to Winning:
Transcript edited for clarity:
How do you know if you are eligible for Disability Retirement?
There is a legal standard, but you probably would have a difficult time figuring out if you meet it on your own.
Everyone who calls me thinks they meet the standard – otherwise they wouldn’t be calling! Most people think they will be able to win, and without a lawyer on top of that.
Now, that could be true for a small number of people. If someone is paralyzed, have terminal cancer, or something like that, where it is 100% clear cut that they cannot do their job duties, then they probably don’t need me or a referral to another lawyer.
So what’s the standard?
The details for the standard are laid out in the blog, but for now I will say this. The standard is that you have to be unable to perform at least one critical element of your job. You have to prove that a disability makes you unable to “satisfactorily” perform a critical element of your job.
So if your work is unsatisfactory or you are unable to make it to work, then that would meet the standard?
Exactly. Unless you are lazing around watching TV!
You have to demonstrate that you cannot make it to work due to your medical condition.
Additionally, a disability must be expected to last at least one year.
And how would you demonstrate that?
Through a doctor. More specifically, through the applicant’s statement and the physician’s statement (two forms on the OPM Disability Retirement Application).
Now, writing a good applicant’s statement is a good idea, but it is basically worthless compared to a physician’s statement.
What wins a disability retirement case is what a doctor says.
When I was a kid, my dad took me to restaurants every now and then. And the way to get to the front of the line at the restaurant was to put “Dr.” in front of your name. So my dad always went by Dr. Friedman and we were always seated first.
It’s not so different at OPM. The doctor is treated better than everyone else.
So should you lie and say you are the doctor?
You should never lie! But being a doctor isn’t as good as being the federal employee who has a doctor who writes you a great Physician’s Statement!
On the other hand, if you are being treated, but you don’t have a doctor who is ready to talk about your treatment, talk about your disability, and discuss how despite your treatment, you still cannot get over your disabling condition and perform your job, then you are not going to win.
You can say all you want about being sick or disabled, and it won’t matter. You need the doctor to do it.
You need evidence.
If you want to talk to Harvey about your situation, fill out the form at the right, send him an email, or give him a call. As a semi-retired lawyer, he is here to talk with you and help as best he can – think of him as a friend you drop in on for advice.
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…
How long will it take to prepare my application for submission to OPM, and how long thereafter can I expect to wait until OPM approves my application? Also, how long will it be before I get any money?
ANSWER: That part of the application that you must complete yourself (Applicant's Statement, Form 3112 A) requires several hours' work. However, getting the "Physician's Statement" (Form 3112 C) into just the right shape often takes weeks and sometimes months. Thereafter, the agency's bureaucracy can take an additional six to eight weeks before the application can be transmitted to OPM.
The timing of OPM's approval appears related largely to happenstance and apparently the whim and fancy of those running the show. For instance, OPM has no procedure whatsoever for expediting applications due to financial need. It claims to expedite the applications of the terminally ill on an ad hoc basis, irrespective of financial need, but refuses to expedite the applications of those threatened by financial ruin.
In my experience, case approval time varies from 10 weeks in a tiny minority of potentially news-sensitive cases (e.g. those concerning AIDS), to an average of five or six months. Some applications, however, languish inexplicably for a year or more, and have required complaints to the Inspector General to get the cases processed.
It may take up to several months, after winning, before you receive any money from OPM. By this time, if you've stopped working and are on LWOP, you will be owed a good deal of annuity back-payments. Usually, OPM makes an initial lump sum distribution of part of the back-payments owed. Thereafter, there may be another lump sum distribution of any other back-payments owed, usually together with the first of the regular monthly annuity payments.
What Are OPM's "Official" Criteria For Determining If You Have A Winning Case?
Below are OPM's stated criteria for winning FERS Disability Retirement Cases. Now, what does this gobbledygook mean? There are thousands of cases defining what these criteria mean, and new cases redefine the criteria all the time. Thus, these criteria are anything but straightforward. The ultimate point here is that you need someone with a knowledge of the case law which interprets these criteria, knowledge which you likely don't have, but a good lawyer should have.
To decide if your disability claim is allowable, OPM considers the documentary evidence you, your agency, and your physician provide. Your claim can be allowed only if the evidence establishes that you meet all of the following criteria:
A deficiency in service with respect to performance, conduct or attendance, or, in the absence of any actual service deficiency, a showing that your medical condition is incompatible with other useful service or retention in the position.
A medical condition, which is defined as a health impairment resulting from a disease or injury, including a psychiatric disease.
A relationship between the service deficiency and the medical condition such that the medical condition has caused the service deficiency.
The disability must be expected to last at least one year.
You became disabled while serving under the Federal Employees Retirement System.
The inability of your employing agency to make reasonable accommodation to your medical condition.
The absence of another available position, within the employing agency and commuting area, at the same grade or pay level and tenure, for which you are qualified for reassignment. OPM will not pay for any medical examination or procedure needed to provide the necessary documentation.
How Can A Lawyer Speed Things Up?
ANSWER: By not making the mistakes you're going to make.
44. Why do application packages take as long as 9 months?
Processing time is affected by a number of factors including, but not limited to:
Incomplete preliminary application and need for additional documentation;
Delays in applying for Social Security disability or providing evidence of application or denial of Social Security disability (CSRS Offset and FERS only);
Incomplete Final package; and,
Evidence of workers’ compensation receipt. I would add number 5. And that is sometimes OPM adjudicators can't even find my client's file.
A lawyer can help you sail past these roadblocks. My take is that these are complex actions which federal employees applying for Disability Retirement often avoid just because of their complexity, or the employee's lack of knowledge as to how to fulfill them. For instance, so many clients have come to me who have been rejected because their applications are incomplete. You would think that just filling out the form makes it complete, but that's just not so. I could go on and on about why it's not so, and have done so in other parts of this blog. A lawyer who has a good deal of prior experience in taking the necessary actions and taking them in the best way to favor his client is always going to be more successful than the client going through the process on their own.
If I retain an attorney and win disability retirement before the MSPB, will I be reimbursed for attorney's fees?
ANSWER: Maybe, but don't count on it. If you win before the Board, you may be able to win reimbursement for attorney's fees, but only fees related to the hearing and not the fees for the OPM proceeding. Additionally, you will not be automatically awarded attorney's fees just because you beat OPM. Before you can get attorney's fees, you have to show the MSPB that awarding fees is "in the interests of justice." Believe it or not, just winning does not necessarily satisfy the standards of "the interests of justice." In short, it is going to be a long, hard, and very unsure road to winning your attorney's fees. Furthermore, because the legal issues are so technical, it is unlikely that you could win an award of attorney's fees without skilled legal assistance. Because you will need legal representation to petition for the legal fees, this may mean that you will have to pay additional attorney's fees in order to win the prior attorney's fees. If all this sounds to you like it isn't in the interests of justice, that's because it's not.
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.