A Good Lawyer is the Key to Winning - But What About the Fee?
Transcript edited for clarity:
How come you retired?
I’m old! I’m 77! When I turned 75, I said, “OK, that’s enough, time to play!”
Then how come you are still doing this blog?
Because I can’t retire. I unplugged my business line when I retired, and by happenstance I turned it on a few months later, and I had 87 calls waiting for me. 48 of them were people who really needed help!
I assume they are coming in because people are reading my website, which is still online, and need advice. Under those circumstances, I can’t retire.
What do people need you know about you now that you are retired?
Well, I am not gonna take your case. But I’ll hear you out over the phone. I’ll be happy to do it and take my time with you because I love this work.
And, if you have a case of merit, and you need a referral, I can refer you to a lawyer who I think will be dynamite for you. He will call you if I tell him you have a case of merit.
If you don’t want a referral, that’s fine – but I won’t be taking your case.
Should people worry about a fee?
Everyone worries about the fee. Now, I won’t charge a fee for anything. I’m retired, and your conversation with me is free.
If you do take your case to a lawyer, there will be a fee. Here’s my advice about a fee.
If your #1 worry is the fee, you are worrying about the wrong thing. If you don’t have the money to pay a lawyer, it makes sense to be concerned.
But if you win, the take here (if we can talk in gangster terms) is very high. The fee will pay for itself.
Let’s say you are 55. Now, a lot of people get disability retirement even earlier. You are going to get, in the first year, 60% of your three-high-year-average salary. In the second year, you get 40%.
Now, people say, “Oh, 40%, that’s not a lot of money.” Well, it is when you are doing nothing. Because you are allowed to go out and work at any job for which you are not disabled, and you can keep the entire 60% and 40%.
However, your outside income must be less than 80% of the current base salary of the job you left. Still, Harvey says:
That is what I call making out like a bandit.
When do you make that 40% until?
You earn 40% until age 62, when you fall under the regular retirement annuity. But your years taking disability retirement benefits count toward your annuity. That’s another part of banditry!
So when you say, “Don’t worry about the fee”…
If you are going to make out like a bandit, why worry about how much it costs to make out like a bandit!
If you knew a stock would grow by three or four times, you would pay a little up front!
Now, if you don’t have money for a fee, that is a different problem. But many lawyers, including the ones I would refer you to, will be willing to take a contingency fee. That means they only take a fee if you win.
That will make it possible for you to get the help you need.
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 must the disability be likely to last before I am eligible for disability retirement?
ANSWER: Just as the disability need not be total, it also need not last forever. You are entitled to disability retirement if your disabling symptoms are likely to last for at least one year. While no less than one year's duration is sufficient, no more than one year's duration is required.
Example: Barbara's job description required her to travel by airplane, at least one time each month, to the agency's field office. She developed an uncontrollable phobia of flying and could no longer attend the monthly meetings. Accommodation was not possible, such as by conference telephone call, since effective meetings required her physical presence. Barbara's psychiatrist corroborated her claim with a "reasoned medical opinion," which included a prognosis that her symptoms would not abate for at least one year. Barbara is disabled because she is unable to render "useful and efficient service" for at least one year. She is entitled to disability retirement if she meets the other requirements.
What are the specific questions that OPM will ask me?
ANSWER: OPM requires that you fill out an "Applicant's Statement." A cursory review of the questions asked demonstrates OPM's interest in deficiencies in performance, attendance, and conduct. To the extent possible, your responses should be directed to those issues. The following is a composite of the four most critical questions asked of both FERS and CSRS employees:
Describe how you are deficient in your job in respect to performance, attendance, or conduct.
Describe your medical condition(s) (i.e., disease or injury) and how it interferes with performance of your duties, attendance, or conduct.
Describe any other restrictions on your activities imposed by your medical condition(s) (i.e., disease or injury) which you believe should be considered in determining your ability to perform your job in your agency and in other positions in your agency for which you may otherwise be qualified.
What efforts have been made by your agency to change your work area or your job to make it possible for you to perform useful and efficient service in your position or another position?
The Applicant's Statement is the only government form that provides you with an opportunity to express the severity of your disabling symptoms. As you can see from the few questions on the form, it fails to elicit the information that OPM really needs in order to assess your case. In my practice, I have developed a far more detailed questionnaire that allows my clients to provide OPM with the information that it really needs to make a decision. Unfortunately, there is no guarantee that they will read it. But there is no guarantee that they will read their own form either.
Remember that your responses on the Applicant's Statement may be useful not only to OPM, but also to your physician who will draft the Physician's Statement (Form SF 3112). Your doctor may have heard your complaints over and over again, but nothing is more effective than having them detailed in writing while your doctor is drafting the Physician's Statement.
Here's an example of the importance of detailing your symptoms to both OPM and your physician. Tests may demonstrate that you have a medical condition known to cause fatigue. However, the fact that you suffer from this particular medical condition means nothing to OPM, and may not in itself remind your doctor of your particular disabling symptoms. Through your answers to these questions, you can make the point that in your particular case, your medical condition causes fatigue, and that your fatigue is so bad that it precludes you from getting anything accomplished at work, because (you might explain further) after being at the office for two hours you can no longer stay awake, and when you are awake, you can't remember from one moment to the next what you just read on the computer screen. This tells everyone much more than just stating that you suffer from fatigue.
If I refuse to accept an accommodation or reassignment, will I lose my right to disability retirement?
ANSWER: Yes. You will lose your right to disability retirement if you turn down a reasonable accommodation or reassignment. If the agency is able to accommodate you in your current job or to reassign you to another job, within the legal strictures explained above, you must accept it or you will lose your right to disability retirement. On the other hand, if you do accept either an accommodation or a reassignment, you will of course lose your opportunity to gain disability retirement (unless it doesn't work out for you, in which case you can try again). In short, the last thing that most people applying for disability retirement want is for the agency to accommodate or reassign them.
But not to worry. In the vast majority of cases, the agency has neither the desire nor the ability to accommodate or reassign an employee. For the most part, accommodation and reassignment of those who are disabled, like accommodation of other handicapped individuals, is treated as a joke by the federal agencies.
One exception: many non-management Postal Service employees fall under a different rule and, under certain circumstances, they can turn down reassignments to a different craft (or those which violate collective bargaining agreements) without jeopardizing their disability retirement rights.
If I'm eligible for both disability retirement and workers' compensation, can I collect from both?
ANSWER: No. Government employees who are eligible for both disability retirement and workers' compensation cannot collect from both, except in very special circumstances. Since there are a multitude of other differences between the two programs, you should definitely seek legal assistance if you are confronted with a choice. Be aware, however, that you will probably not be able to find a lawyer who will represent you in a government workers' compensation case, given the government's shenanigans with legal fees in such cases.
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.