Federal Disability Lawyer Fees

Federal employee with disabilities

Should you worry about how much it will cost you to hire a Federal Disability Lawyer?

It is a genuine worry.  There are plenty of lawyers on the Internet who say that they “guarantee” —  with a “money-back” promise  — a successful outcome.  But what good is it to give you back your money if your application is denied at the first hint of trouble, and how much work and effort do you think such a law firm will put into your case?  At first sight, a “money-back” guarantee may seem like an attractive proposition.  You’ll get your money back if a Federal Disability Lawyer can’t deliver.  The problem is:  How much “delivery” will there be to begin with?  And what good is the money returned if you have not secured your Federal Disability Retirement benefits — and more importantly, if you didn’t even put enough effort into a case to give it a fighting chance?

By the time you come to a point where filing for Federal disability retirement benefits becomes a reality, you have already invested both time and money into a career whose goal was to create a “nest egg” for retirement purposes.  You may have already invested 10, 20 or even 30 years in a Federal career, and you are about to lose everything because of an injury or a medical condition.  Taken in that context, “How much”  you will be paying to your attorney shouldn’t be your primary concern.  The attorney you hire might promise you your money back — but what good is that if you haven’t taken your “best shot” at securing your future?  In filing for Federal Disability Retirement benefits, you are given only one opportunity to save your 10-30 years of hard work before it is thrown out the window.  Who you hire as your Federal Disability Lawyer; how much he is willing to fight on your behalf; what effort will be expended on your behalf; whether he is accessible to you throughout the process — these and many more considerations should be part of the “investment” into your own future.  On the other hand, your “Federal Disability Lawyer” who gives you that “money-back guarantee” might realize that your case is too hard to fight for, that it was not “easy money” and he/she might therefore decide to quit on you.  Yes, it can happen.  It has happened to others.

Meanwhile, your Agency or the Postal Service might have already let you go because you filed for Federal Disability Retirement.  The potential disaster is that you were “medically separated” but you didn’t qualify for Federal Disability Retirement benefits.  Yes, it can happen.  It has happened to others.

When you are struggling to survive after spending a 10-30 year career with the Federal Government, your legal fees are still an important consideration — but even this financial consideration should really be comparatively unimportant when considering the bridges you might be burning behind you.  Don’t be fooled by the “100% Money Back Promise‎”.

Be smart.  Hire the best Federal Disability Lawyer you can find.  Do your homework: Ask former Federal employees who have already successfully filed for Federal Disability Retirement benefits (nothing can beat a personal recommendation); consult with an honest union steward; and research for the best attorney in the field.  Read real reviews (a tip: if an attorney can write his/her own review on his website or even in Google reviews, that might not be a good basis upon which to make a decision); go instead to reputable lawyer directories, public forums, or even the BBB after finding potential Federal Disability Lawyers.

In the end, saving a few hundred of dollars might cost you the rest of your life savings.  Be smart.  Medical conditions can become a disaster in the life of the Federal or Postal employee.  Don’t let a medical disaster become a legal disaster.

Yes, it can happen.  It has happened to others.

 

AllLawyers.org

FERS Disability Retirement: Understanding the Legal Standard Will Help You Win Your Case

Legal standards of proof provide various levels of criteria which, depending upon the genus of law (e.g., administrative, civil, criminal, etc.), are an important factor to understand before entering the arena of legal battles.

Thus, generally speaking, the three most common applicable standards of proof which are recognized in law are:  Preponderance of the evidence; Clear and convincing evidence; and Beyond a reasonable doubt.  The conceptual demarcation between each of the three are obviously easier to recognize when the comparisons are between “preponderance of the evidence” and “beyond a reasonable doubt”, as opposed to making a comparative analysis between the first and the second, or between the second and third.  For, boundaries between levels of such standards, when close to proximal linguistic constructs, can overlap and create incestuous overlapping.  One can thus argue that where X is ‘clear and convincing’, it may also be beyond a reasonable doubt.  Whereas, to show that X is proven by a ‘preponderance of the evidence’ is a far cry from asserting that it is beyond a reasonable doubt.  On the other hand, for X to be beyond a reasonable doubt, would logically require that it is both ‘clear and convincing’ as well as ‘more likely than not.’  The higher standard always subsumes the lower ones, but the lower ones do not necessarily satisfy the higher ones.

While the theoretical application of such standards of proof are easy to discuss in an academic sense, it is always the “details” of how one goes about reviewing, analyzing and applying the evidence that betrays the true mechanical application in any legal forum.  In filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal or Postal employee attempting to prove the nexus between one’s medical condition and his or her medical inability to perform one or more of the essential elements of one’s job, needs to only “prove” the lowest of the three standards — that the evidence presented is more “likely” than not to be true.  For all Federal Disability Retirement cases are based upon the “preponderance of the evidence” standard of proof.

There is, as always, the academic, theoretical world of evidentiary standards, as opposed to the practical reality of application and practice.  In the theoretical world, academics and professors of law speak in terms of conceptual hierarchies and what constitutes satisfaction of a particular standard of proof.  In the practical world, where the actual battles are fought, lawyers and the applicants who are represented by lawyers in a Federal Disability Retirement case, must constantly contend with the issue of whether the applicable standard of proof — “preponderance of the evidence” — is being strictly adhered to.

The problem with standards of proof is always found in the details of such standards.  One would think that whether a piece of evidence, a medical report, the testimony of a doctor, or the lay person’s opinion on a matter, is “more likely than not” to be true, should be a fairly easy standard to meet.  Moreover, if there is no rebuttal evidence — and in a Federal Disability Retirement case, there is never any true rebuttal evidence — it should almost be a certainty that the appellant would prevail in such a case.  Given all of the above, how does one “lose” a Federal Disability Retirement case?

To begin with, the perversion of a standard of proof occurs with the insidious infiltration of inappropriate and invidious conceptual constructs — ones which are anathema to the paradigmatic understanding of the standard itself.  Thus, whereas the higher standard always subsumes any lesser standard of proof, the inverse should never be required in a case.   The standard of proof should always be weary of the introduction of terms which tend to elevate or denigrate the standard itself, and sanitation and inoculation against corruption of the proper standard is a necessary part of every case.  Since ‘precedence’ is what makes a case applicable for future use, the constancy of the standard of proof must remain true and unchanging.

One may argue that a piece of evidence X establishes that it is beyond a reasonable doubt that one is entitled to Federal Disability Retirement benefits; and since X meets the highest standard, by logical necessity, it must by definition meet the lower standards of ‘clear and convincing’ as well as ‘preponderance of the evidence’.  Obviously, the inverse would not be true — that to say that X establishes the satisfaction of the ‘preponderance of the evidence’ standard necessarily meets the criteria of ‘clear and convincing’ and ‘beyond a reasonable doubt’ standards; for the satisfaction of the lower does not entail the higher, whereas meeting the higher standards subsumes by logical domino effect each of the lower standards or proof.

In a very real practical sense, the Office of Personnel Management has the highest burden of proof to meet, precisely because they offer no evidence, or rarely offer, in a Federal Disability Retirement application.  Judges often have to be reminded that there is a wide chasm between (a) the question asked and (b) the answer given.  Questions do not constitute evidence; only answers are considered evidence.  How a question is asked, of course, can sometimes influence the evidentiary import of the answer, and the tone and inflection of a question can undermine the apparent believability of an answer.  But since OPM rarely, if ever, introduces any actual evidence in a Federal Disability Retirement application, it should be fairly easy for most Federal Disability Retirement applications to be approved.

Preponderance of the evidence” is the lowest of the three standards of proof discussed herein.  Such a standard, by some interpretive perspectives, merely requires a showing that the evidence show that it is “more likely than not” that the Federal or Postal Worker is no longer able to perform one or more of the essential elements of one’s job.  Understanding the requirement of the applicable standard of proof will help the potential Federal or Postal worker who is considering filing for Federal Disability Retirement benefits, in assessing the quality and extent of the evidence needed to prove one’s case.  The danger, of course, is in thinking that, because it is a very minimal standard of proof, not much is needed to win.  One should never approach a Federal Disability Retirement case in such a de minimis manner.  It is better to keep in mind the principle mentioned above that the higher standard of proof subsumes by logical necessity the lower standard of proof.   That being said, it is best to prepare a Federal Disability Retirement case by setting out to prove the highest standard of proof; and by doing so, by logical necessity, practical application, and persuasive authority, one will ensure the best chance of success of obtaining a Federal Disability Retirement benefit.

FERS Disability Retirement is a lifetime benefit provided for the Federal or Postal worker who is (A) no longer able to perform his or her particular kind of job, as a result of a medical condition which prevents the continuation of such work or is otherwise inconsistent with retention in such a position, and (B) beset with such a medical condition which will last for a minimum of 12 months or more.  In order to become eligible, however, one must prove by a preponderance of the evidence that one is qualified for such a benefit.  In order to meet the qualification criteria, as set by statute and regulation, one must understand, and by understanding, meet the statutory requirements, of what is meant by “preponderance of the evidence.”  The legal burden of proof is that which determines the eligibility criteria; by understanding the legal burden of proof, one takes the first steps in preparing and formulating the basis for eligibility, and thereby securing one’s future.  Never take for granted that which one must prove; for the validity and value of “proof” is determined by the applicable standard of proof, and where such a standard is applied by judges — i.e., human beings who are imperfect and susceptible to persuasive rhetorical arguments — room for error must be factored in when preparing, formulating and filing for Federal Disability Retirement benefits, whether under CSRS or FERS.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

Original post date: 03/12/2012.   Last Updated October 11, 2019.

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his FERS Disability Retirement website.

 

FERS Disability Retirement Compared To OWCP

OWCP vs. FERS Disability Retirement

The Department of Labor administers Federal Worker’s Compensation Benefits through the Office of Workers’ Compensation Programs (OWCP).  Such benefits are non-taxable, and are paid for temporary total disability, for injuries or medical conditions which result from, or are caused by, a workplace injury. There are many tangential factors which may be added to this basic definition, but for purposes of distinguishing OWCP from the Office of Personnel Management (OPM) Disability Retirement, this definition will suffice. Additionally, generally speaking, OWCP/Federal Worker’s Compensation is not a “retirement system.”

OPM Disability retirement, on the other hand, is a retirement system.  As a result of a medical condition which impacts one’s ability to perform the essential elements of one’s job, a person is eligible to retire early, based upon a “medical disability.”  A person on OPM Disability Retirement is separated from the Federal Agency, and he or she may “move on” in life, and perhaps start another career (with certain limitations as stated below).

When is it Time to File for FERS Disability Retirement?

An individual must file for Federal Employees Retirement System/Civil Service Retirement System (FERS/CSRS) disability retirement benefits with the Office of Personnel Management within one (1) year of being separated from Federal Service – otherwise, the right to be eligible for disability retirement benefits is lost. Do not confuse this with being placed on Leave Without Pay (LWOP), or being out on OWCP for being injured.  The clock begins ticking when you are actually separated from service.  Most people, however, should not wait until they are separated to file for disability retirement benefits, but rather, should file whenever it becomes apparent that he or she can no longer perform one or more of the essential elements of the job.

Taxable vs NonTaxable Benefits

OWCP benefits are non-taxable.  OPM Disability Retirement benefits, on the other hand, are taxed.  While receiving disability retirement benefits, a person may undertake a job search, accept another position, and earn up to 80% of what his or her former position currently pays.  Individuals receiving OWCP temporary total disability may not work at another job – period.  Here is a sample scenario using FERS Disability Retirement rules:

A worker’s average salary for 3 consecutive years totals $50,000.  The individual goes out on disability retirement, and after the first year (in which he would receive 60%, or $30,000), he is eligible to receive an annual annuity of 40%, or $20,000.  The worker then applies for and accepts a job in the private sector.  The worker can accept a job that pays up to $40,000 per year (80% of the current salary), and still be eligible to receive the $20,000 per year disability annuity.

The 80% Rule Increases Over Time

The rule is “80% of what a person’s former job pays currently.”  If 5 years from now, a person’s former position pays $60,000 per year instead of $50,000, then he can make up to $48,000 per year at the job, because 80% of $60,000 is $48,000.

Filing for Disability Retirement while on Workers’ Compensation

It is often not a bad idea for those who are receiving OWCP benefits to remain on OWCP for as long as they can stand it (i.e., the persistent harassment, the constant oversight by so-called “2nd opinion doctors”, etc.) — but to always have the FERS/CSRS disability retirement annuity approved as a back-up source of income.  Individuals may file for disability retirement concurrently while on OWCP — but you simply cannot collect from both at the same time (See 5 C.F.R. Sec. 844.105, “Relationship to workers’ compensation. (a) Except as provided in paragraph (b) of this section, an individual who is eligible for both an annuity under part 842 or 844 of this chapter and compensation for injury or disability under subchapter I of chapter 81 of title 5, United States Code (other than a scheduled award under 5 U.S.C. 8107(c)), covering the same period of time must elect to receive either the annuity or compensation.”).

When OWCP terminates payments (and there is a very good chance that this will happen at some point in the near future), it is a wise option to have your disability retirement benefits approved, but held in an inactive status.  Federal workers have every right to elect one benefit over the other.  Indeed, if you wanted to, you are allowed to go back and forth between OWCP and FERS Disability Retirement.

As a secondary issue on this matter, a closer look at 5 U.S.C. Section 8106, paragraph (c) (2), (OWCP) on “partial disability” compared with the definition for disability retirement reveals: that “partially disabled employee who refuses or, neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.”  This means that if OWCP secures a job for you as a retail store greeter for instance, and pays you the difference between your salary and what retail store pays — and you decide to say “no”, OWCP has every right to cut off your payments.

On the other hand, under the laws concerning FERS Disability Retirement, 5 C.F.R.Sec. 844.103 (a)(2) states that, in order to be eligible for disability retirement, the individual “must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position.”  The difference here is that, under OWCP, if you are “partially disabled,” if you are offered any job that OWCP believes you can do, you must accept it.  On the other hand, under FERS/CSRS disability retirement laws, if you are partially disabled — meaning that you simply cannot do at least one or more of the essential elements of your job — then you are entitled to disability retirement benefits, and your agency or the Postal Service cannot simply offer you any job; they must offer you a job in the same pay or grade, and one in which you are qualified or, if you are in the Postal Service, then it must an accommodation in the same craft.

Controlling Your Future

Under OWCP, you have no control over your future – OWCP determines your future. Under OPM Disability Retirement, you can obtain disability retirement benefits, and then take control of your future and work at another job of your choice, make up to 80% of what your (former) position pays and still continue to receive your disability annuity.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Lawyer

 

Robert R. McGill is an attorney who specializes in OPM Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.

 

Note:  This article was originally published in Lawyers.com

What is Federal Disability Retirement?

Is it an accident that so many Federal and Postal employees are unaware of the benefit of “Federal Disability Retirement” for FERS employees?  Is it a deliberate “conspiracy of silence” — a benefit which exists but is not trumpeted by the Federal Government for fear of the floodgates of applications being opened?

More likely than not, there is another explanation:  the new Federal employee is neither concerned nor interested in a benefit which one neither imagines nor foresees as a possible avenue of choice.  The general rule in life is that the younger we are, the more invincible we believe we are; as one grows older (or wiser and more mature, as we like to think), thoughts of our own mortality and vulnerability become exponentially magnified.  Like so many things in life, the very concepts of “disability” and “retirement” (leaving aside the compounding and conjoining of the two terms) are far and removed — until it becomes a living necessity.

Federal Disability Retirement and Regular Retirement

When a medical condition begins to impact a Federal or Postal employee, it is important to know that the benefit termed as “Federal Disability Retirement” exists and is available.  It is a benefit which is part of the total ’employment package” when an individual becomes a Federal or Postal employee.  Federal Disability Retirement allows an employee to retire earlier, but not because he or she necessarily got enough years of Federal service to qualify for a retirement annuity (that would be “regular” retirement), but because the employee is medically unable to perform the essential functions of his or her present Federal job.

Thus, when one needs to access such a benefit, one should never think that there is something degrading or nefarious about applying for Federal Disability Retirement benefits — it is not an attempt to “game the system”; it is not a judgment upon the worth of an individual; it is not a conclusion to one’s life.  Rather, it is a recognition that:  (A) one suffers from a medical condition, which (B) impacts and impedes one’s ability to perform the essential elements of one’s Federal or postal job, and (C) that one is no longer a “good fit” for one’s particular job.

You may still work somewhere else

It does not mean that the Federal or Postal employee cannot be productive in some other capacity; indeed, the statutes and regulations governing disability retirement annuity payments allow for an individual to go out and become employed in another, different job, so long as it is (1) substantially different from the type of essential elements which prevented one from performing in the previous job, and (2) one makes no greater than 80% of what the prior (Federal or Postal) job currently pays.

The minimum eligibility requirements

Further, for purposes of determining minimum eligibility requirements, here are some additional “basics”:  To be eligible for a disability retirement annuity under FERS or CSRS, a Federal or Postal employee must establish by a preponderance of the evidence that:

(1) he or she has completed a minimum of 18 months of Federal service (for FERS employees) or five years (for CSRS employees which, presumably, all CSRS employees already have the minimum eligible period of Federal service);

(2) while employed in a position subject to FERS or CSRS, the Federal or Postal employee becomes disabled because of a medical condition,  resulting in a deficiency in performance, conduct, or attendance, or, absent such deficiency, the medical condition must be incompatible with either useful and efficient service or retention in the position;

(3) the disabling medical condition is expected to continue for at least one year from the date the application is filed; and

(4) accommodation of the disabling medical condition in the appellant’s former position or in an existing vacant position must be unable to be accomplished by the agency.  5 U.S.C. § 8337(a); 5 C.F.R. § 831.1203(a).

The above set of legal criteria constitute the “basics” of eligibility.  Certain other elements should also be kept in mind:

The Federal employee need not prove that he or she is “totally disabled”; rather, the standard of proof which must be met is to merely show that he or she is unable, because of disease or injury, to render useful and efficient service in the position occupied.

Your disability does not have to be job-related

Further, it is important to understand that “causality” is not an issue in Federal or Postal Disability Retirement law  — unlike Federal Worker’s Compensation (OWCP).  This is because, to be eligible for Federal Disability Retirement benefits, you don’t need to have an “on-the-job” injury, or suffer from an occupational disease or illness.  You can be playing touch football in your backyard and break your leg, and if the condition of your medical disability lasts for at least a year, and prevents you from performing the essential elements of your job, then you are eligible for Federal Disability Retirement benefits.

Separation from Federal service

One additional – but very important – point which must be considered in filing for Federal Disability Retirement benefits.   First, one does not need to be separated from service in order to file for disability retirement.  However, if a Federal or Postal employee is separated from service, that employee has only up to one (1) year to file for Federal Disability Retirement benefits.  If you don’t file within one (1) year of being separated from service, you have lost the right to apply for such benefits forever.

Further, if a separation of service occurs, it is best to attempt to negotiate with the Agency to have the separation characterized as one based upon a medical reason — either explicitly (“separation is based upon your medical inability to perform your job”) or implicitly (“separation is based upon excessive absences,” combined with a reference in the proposed removal to medical conditions implying that the absences resulted from one’s medical conditions).   I have written many articles as to why it is important to obtain a separation from the Federal service based upon one’s inability to perform one’s job.  It is for the sake of securing what is known as the “Bruner Presumption“.

Seeking help from Bruner

The “Bruner Presumption” is so named from a Federal Circuit Court case, Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993).   It essentially stands for the proposition that, if a Federal employee under FERS or CSRS is removed for his or her medical inability to perform the duties of his or her position, that such a specified removal constitutes “prima facie” evidence of entitlement to disability retirement.  This legalese simply means that it makes it harder for the Office of Personnel Management to deny a disability retirement application.  However, always remember that it is still, even with the Bruner Presumption, the responsibility of the applicant to show that he or she is entitled to disability retirement benefits — by having the necessary medical documentation showing that you cannot perform the essential elements of the job.

You already had Federal Disability Retirement Insurance all this time

Like life insurance and health insurance (you will still be able to maintain your health or medical insurance), the fine print and details of the contractual benefits are often “out of sight” and “out of mind” — until the necessity arises.  Federal Disability Retirement benefits are rarely considered until the need arises.  It is a benefit accorded to all Federal and Postal employees, and is part of the “employment package” — the totality of compensatory benefits.

Placed on a linear spectrum, when an employee begins his or her Federal career, disability retirement benefits are merely an irrelevancy to set aside for those unnamed and faceless “old folks”; as one moves along the linear spectrum of life and career, however, and medical conditions develop over time, the benefits of a disability retirement annuity become magnified in importance.  A lifetime of working to obtain a semblance of financial security need not become devastated because of a medical condition.  A disability retirement annuity allows for a certain level of financial security – and secures a “fresh start” of productivity in allowing for a second career and a different occupation.  While “out of sight” for today, it is nevertheless a benefit to be mindful of for the future.

Sincerely,

Robert R. McGill
Federal Disability Attorney

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.