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…
If I have sick leave left, should I exhaust it before I go on disability retirement? What about annual leave?
ANSWER: It is probably best to exhaust your sick leave before going onto disability retirement. There are at least two ways to do this. First, you can use up your sick leave once you have been awarded disability retirement, holding your retirement annuity in abeyance until you have exhausted your sick leave. Second, you can use all of your accumulated sick leave in advance, beyond the amount necessary for OPM to approve your application. You can do this by leaving just enough sick leave to get you through the process. The problem here is that no one can guess how much time OPM will take to come to a decision.
The advantage of using up your sick leave, no matter how you do it, is that you will be paid at your full salary for your time on sick leave instead of being paid at the lesser rate of the disability retirement annuity. While the unused sick leave of CSRS employees is credited to time in service and may have potential value for retirement purposes (this is not so for FERS employees), it's still usually much more profitable to exhaust sick leave first, thereby recouping it in the form of dollars.
Annual leave is different. You should exhaust any "use or lose" annual leave before going onto disability retirement. However, there is no special reason (except perhaps for tax purposes) to exhaust any other accrued annual leave, since you will be paid a lump sum for any annual leave remaining in your leave account when you go onto disability retirement.
Does OPM ever deny applicants the right to reconsideration? What do I do if that happens to me?
ANSWER: Yes. Until recently, any time OPM rejected a disability retirement application, it provided an initial decision from which an applicant could request reconsideration. Reconsideration provides an opportunity to point out to OPM its errors, thereby giving OPM a chance to correct those errors before making a final decision. In a process rife with errors, reconsideration is often critical to affording applicants due process of law.
Recently, OPM implemented a "pilot program" in which some applications are randomly short-circuited and sent directly to a final decision. These cases are foreclosed from the critical due process reconsideration step. If you have the misfortune of having your case randomly assigned to the "pilot program," your sole remedy will be a hearing at the MSPB, and under its rules you must start all over from square one in proving your entire case to a judge.
OPM wants to speed up its processing by sending some applications directly to a final decision, disallowing reconsideration. That would be fine so long as the only applications that are denied reconsideration are those that would be unlikely to benefit from reconsideration. This would require that OPM develop carefully drawn standards to determine which cases should be short-circuited and which should not. Unfortunately, OPM has no standards whatsoever for depriving applicants of their right to reconsideration. OPM denies this right by selecting cases at random. Random selection may be great for scientific experiments, but not for safeguarding people's rights.
This "pilot project" resulted in a recent disaster when a government lawyer who was disabled by AIDS dementia was erroneously denied disability retirement, and then was denied the right to reconsideration because his case had been randomly selected for the project. OPM's denial was based on several blatant errors, but once this man's case was randomly tossed into OPM's pilot project, his only recourse was an appeal to the Merit Systems Protection Board where he had to start all over again and prove his entire case to the judge. Despite the fact that he was himself an attorney, his dementia, together with the technical nature of MSPB proceedings, required him to retain me.
This particular case had a happy legal ending when OPM's representative recognized that his agency had committed a serious error. He prevailed on OPM to award my client disability retirement, and thereby avoided an MSPB hearing. Unfortunately, my client was not reimbursed for the legal fees that he had to expend to win his case. Although I applaud the efforts of the OPM representative in this case, I fault OPM for making serious errors in its decision and then eliminating the reconsideration process that would have allowed my client to correct those errors.
It is hard to understand how OPM could deny disability benefits to someone disabled by such a devastating illness as AIDS dementia, but it is even harder to understand how it could design a program that would randomly deprive such an obviously disabled person of the traditional right to reconsideration and force him into a costly and time consuming appeal. Hopefully, OPM will abandon the "pilot project" in its current form.
Are disability retirement payments taxable?
ANSWER: Yes. Disability retirement payments are normally taxable as ordinary income. There are, however, some exceptions. For instance, persons who, in addition to meeting OPM's standard for disability retirement, are totally and permanently disabled for any gainful employment may be eligible for a special tax credit. Similarly, in certain circumstances and in certain states, persons may not have to pay state income tax on their federal annuity. Because the rules are complex and can have significant monetary consequences, you should consult a tax expert.
Will I need a lawyer to win disability retirement?
ANSWER: Probably. While it is true that a typist whose hand is cut off probably will not need a lawyer to get disability retirement, most cases are not so clear-cut. Remember the case of the government attorney disabled by AIDS dementia that I discussed previously? If someone suffering from such a serious and incurable illness needed a lawyer to win, then most applicants probably need a lawyer. This is particularly true given that most government employees seek disability retirement for illnesses like chronic pain, depression, anxiety, phobias, allergies, chemical sensitivities, and the like -- all of which have a single common denominator: they are subjective. While such symptoms may severely disable the sufferer, they cannot be readily perceived by others, including the physicians who are called upon to diagnose and treat them. Employees with such difficult-to-prove symptoms have a particular need for strong legal advocacy.
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.