OPM’S DISABILITY RETIREMENT DIVISION RARELY RESPECTS AN APPLICANTS LEGAL RIGHT TO BE REPRESENTED BY COUNSEL THEY REFUSE, EVEN THOUGH IT IS OPM’S POLICY TO RESPECT THE RIGHT TO COUNSEL.
Every client of mine signs a “Designation of Representative” form appointing me as his or her lawyer. I forward all completed applications to OPM with a detailed transmittal letter listing every document being provided. On every singe transmittal letter, I print something along these lines with a box around the words so that they can’t miss it:
PLEASE RESPECT MY CLIENT’S RIGHT TO BE REPRESENTED BY UNDERSIGNED COUNSE IN APPLYING FOR DISABILITY RETIREMENT. This is particularly important in this case, in that my client suffers from mental illness. My client has chosen to be represented by undersigned counsel, He has a constitutional right to make that choice and OPM must respect it. This means, that all communications of whatever sort, intended for my client, must be directed exclusively to undersigned counsel and not to my client. If there is a specific rule requiring such, you may provide copies of any communications to my client, but first and foremost, you must provide me with such communications.
In almost EVERY SINGLE CASE that I have EVER filed, and that amounts to hundreds of cases, OPM has failed to respect that demand.
19 years ago I complained about this to OPM’s Inspector General, providing him with examples from four then-active cases. Here is part of his reply letter to me dated May 17, 1993:
“According to DSED officials, OPM policy is to recognize a disability applicant’s designation of a legal representative, and provide the legal representative copies of correspondence and notices when they are sent. However, OPM reserves the right to contact applicants directly
Our review of the four cases indicated that OPM on several occasions failed to correspond with you or provide you copies of correspondence with the applicant, when it was clearly the intent of the applicant to have you as his or her representative.”
19 years later nothing has changed. The OPM Disability Retirement division continues to deny applicants the right to representation by counsel.
I could give you numerous reasons whey respecting the right to counsel is critical to applicants. But that is none of OPM’s business. If you request it, you should get it.
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 my disability retirement entitle me to additional payment (for nursing services, wheelchairs, etc.)?
ANSWER: No. There are no additional payments available from disability retirement. However, disability retirement is not a bar to your pursuing any other entitlements that may be available, such as from a private insurance policy, Social Security, or the like. However, you are not permitted to collect workers' compensation (except in unusual cases).
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.
Is there an earnings limitation in that other job?
ANSWER: Yes. The law allows you to collect your full disability retirement annuity so long as you are not "restored to earning capacity." You are considered "restored to earning capacity" if in any calendar year your earnings from wages, self-employment, or both (but not passive investments) reaches or exceeds 80% of the current rate of basic pay of the position you occupied immediately before retirement. The rule is very strictly construed and you will be stripped of your annuity even if you exceed the 80% ceiling by even a single penny. If you think that you may fall within the scope of this rule, be very sure to find out precisely how it is applied by OPM. For instance, OPM may include in its definition of income, earnings that IRS may exclude from its definition of income.
If you are "restored to earning capacity," you will lose your entire disability retirement annuity, not just some percentage of it. Loss of your annuity will also mean loss of other benefits, including loss of your group health insurance, which will always be more favorable than the individual conversion policy to which you may thereafter be entitled. Persons over 60 years of age are exempt from this 80% earnings limitation.
If I am fired from my government job, am I still eligible for disability retirement?
ANSWER: Yes. Even if you are fired from your government job (except for treason or for certain other select offenses), you are eligible for disability retirement. In fact, it is not unusual for employees to be fired just because their disability precluded them from coming to work on time or from performing satisfactorily on the job. In those cases, the adverse action itself may enhance your ability to win disability retirement. But such employees, as everyone else, are required to file for disability retirement with OPM within one year of being separated from the government.
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.