Monthly Archives: February 2012

Accommodation Shouldn’t be That Hard to Prove

Accommodation Shouldn’t be That Hard to Prove

After over 20 years of dedicated service as an employee of the U.S. Postal Service, Claimant applied for federal disability retirement due to mental impairments, including personality disorder and depression. Her psychological injuries made her miss work and, when she did go to work, kept her from doing her job well.

The claimant had a lot of evidence supporting her. Her doctor was very clear about claimant’s problems being real and debilitating.  Her supervisor agreed with the assertion that claimant was unable to continue working because of her conditions. The supervisor stated that her performance was less than satisfactory and that her attendance was unacceptable. Even the Postal Service itself had certified that accommodation of the claimant was not possible. The Postal Service stated that the severity of her condition and the requirements of her position made accommodation impossible.

Despite the overwhelming evidence, the Office of Personnel Management (OPM) denied her claim, asserting that she had not proven that she could not be accommodated in her position. What was even stranger was that the administrative judge at the Merit Systems Protection Board (MSPB) agreed with the OPM! The judge seemed to think that the Postal Service’s certification was the only recorded evidence that addressed accommodation. The MSPB judge didn’t think that the certification was enough and that the claimant had not bet her burden of proof.

The Claimant, however, persisted and appealed the Board’s decision. On appeal, the Court reversed and granted the claimant federal disability retirement benefits. The Court found it very important that the OPM had not even tried to challenge the certification issued by the Postal Service. Furthermore, other evidence from the record clearly supported the conclusion that accommodation could not be made for the claimant at her old position.

This case teaches us that proving accommodation can’t be made shouldn’t be impossible. The claimant had offered an abundant amount of proof concerning accommodation and the OPM still denied her claim. The Court had to set the record straight regarding what a claimant needs to prove. The OPM and administrative judge were wrong to say that claimant hadn’t met her burden. She had evidence that accommodation wasn’t feasible from a doctor, her supervisor, and her employing agency—that was enough!

Harris Federal Law Firm

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Federal Disability Retirement – Earning Additional Income

We get his question a lot… Can I work while I’m on federal disability retirement?  The answer is YES! If a federal employee is approved and receiving federal disability retirement benefits, they can work in the private sector and earn an income.  In fact, we see this happen all the time.  Many federal employees appreciate this because it allows them to “move on” with their life.

However, there are limitations.  Your work must not exceed your medical restrictions and your earnings from this employment must not exceed 80% of the current salary of their retired position.

Because an annuitant can earn additional income really opens up many options for federal employees. Since all disability retirements carry a minimum payment of 40% of the annuitant’s High 3, there is potential for the annuitant to actually earn more money once they are retired.

It always makes us happy to hear from a former client after they are approved for federal disability retirement and have found other employment while they are still on the benefit.  Many tell us they are much happy doing what they do now in their new life!

Harris Federal Law Firm

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Success Story: DHS Investigator in Arizona

Y.E., age 44, had worked 20 years as an investigator in the Immigration and Customs Enforcement under the Department of Homeland Security in Arizona. Unfortunately, she broke her right ankle and elbow. Her ankle required surgery, with plates inserted on both sides and screws in the back of the ankle. The broken elbow continued to cause Y.E. severe pain all the way down to her fingertips. She also suffered from a dislocation of her left knee, for which she had undergone 3 different surgeries throughout the years.

Combined, her injuries prevented her from running, climbing, carrying a firearm, or conducting surveillance. She was unable to safely make arrests, execute search warrants, or conduct interviews of suspected criminals. Y.E. was approved for FERS disability retirement with the help from Harris Federal Law Firm.

Y.E. also had two accepted OWCP Federal Workers Compensation cases for the injuries described above.  Harris Federal Law Firm was able to win her Schedule Award benefits for both OWCP claims totaling $276,179.60. 

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Helpful Terminology for Federal Employee Benefits

Federal employees are often unfamiliar with the lingo and terms used for disability retirement, workers compensation or even their retirement programs.  However, when you have been injured on the job, develop a disability or qualify for retirement knowing and learning these terms will be helpful.

Here are some basics and their meanings.

  • OWCP – Office of Workers Compensation Programs
  • DOL – Department of Labor
  • OPM – Office of Personnel Management
  • MDR – Medical Disability Retirement (same thing as FDR)
  • FDR – Federal Disability Retirement (same thing as MDR)
  • FERS – Federal Employee Retirement System
  • CSRS – Civil Service Retirement System
  • TSP – Thrift Savings Plan
  • High 3 – Three highest consecutive years of earning or salary averaged together
  • SSA – Social Security Administration
  • SSD – Social Security Disability
  • VA – Veterans Administration
  • CSA – Civil Service Account
  • MSPB – Merit Systems Protection Board
  • HR – Human Resources
  • LAS – Legal Administrative Specialist
  • COLA – Cost of Living Adjustments
  • EA – Employing Agency
  • IW – Injured Worker
  • DOI – Date of Injury
  • MMI – Maximum Medical Improvement
  • IME – Independent Medical Exam
  • SECOP – Second Opinion Exam
  • DSR – Discontinued Service Retirement

Harris Federal Law Firm 

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Federal Disability Retirement: Your Statements Concerning Pain are Important!

Your Statements Concerning Pain are Important!

            Ms. Y was a Distribution Clerk for the U.S. Postal Service. Because of severe migraine headaches, she had an excessive number of absences from. Her supervisor stated that her attendance had become unacceptable, so Ms. Y applied for federal disability retirement. She claimed that her headaches prevented her from performing her job duties. The Office of Personnel Management (OPM) denied her application, stating that she hadn’t proved the existence of a disabling condition.

Ms. Y appealed, but the administrative judge at the Merit Systems Protection Board affirmed OPM’s rejection. The judge said that the medical evidence didn’t provide any explanation of how Ms. Y’s condition made her unable to perform her job duties. Additionally, he stated that Ms. Y had failed to show that her unacceptable attendance was caused by her condition. Ms. Y appealed again.

The Board ultimately disagreed with OPM and the administrative judge, stating that this was not a case where the existence of a condition depends on specific relations between particular medical conditions and certain job requirements. In determining the ultimate fact of disability, Ms. Y’s own testimony of subjective pain and inability to work had to be seriously considered, especially since it was supported by competent medical evidence.

Her account of the nature, severity, and frequency of her migraine headaches was supported by the reports from several treating and consulting doctors. The fact that the doctors’ reports were not supported by objective clinical tests and findings didn’t really matter since there are no physical changes ordinarily associated with migraine headaches other than the changes associated with pain.

Accordingly, the Board found that Ms. Y had proved that her migraines prevented her from performing her job requirements as a Distribution Clerk. This case teaches us that an applicant’s subjective statements as to her condition must be seriously considered, especially where such testimony is backed by relevant and current medical evidence. Additionally, this case shows that medical conditions which have no specific physical changes that can be detected will not prevent an applicant with such a condition from getting federal disability retirement benefits.

Harris Federal Law Firm

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Success Story: USPS letter carrier in Florida

M.F., age 49, was a letter carrier for the United States Postal Service inFlorida. Nine years previously, M.F. slipped and twisted his right knee while delivering mail. The injury caused a piece of the underside of his knee cap to chip off. Since the injury, every time he bends the right knee, he has a scraping of bone against ligaments and tendons causing pain.

Any type of walking or carrying of extra weight causes severe pain. This restricted him from performing his job as a letter carrier. He could no longer deliver mail on any of the routes that required walking in residential neighborhoods. With our help, M.F. was approved for FERS disability retirement benefits!

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Applicant has to Prove that Disability Still Exists

Applicant has to Prove that Disability Still Exists

Mr. P had worked as a Salary and Wage Specialist for the Veterans Administration for 7 years before he applied for federal disability retirement. He was granted retirement due to his medical disability of vascular headaches of the cluster and migraine type, which occurred a minimum of 3 times a week and would leave Mr. P incapacitated for hours at a time.

After receiving benefits for 3 years, Mr. P was ordered to submit to a medical examination to reaffirm his disability. The agency-employed doctor who examined him found that Mr. P’s condition had improved and that he should be able to return to his position and control his headaches better. Because of this medical report, the Office of Personnel Management (OPM) stopped giving Mr. P disability retirement benefits.

Mr. P appealed the OPM’s decision. At the appeal, Mr. P’s treating physician (the doctor he had been seeing for years) appeared and testified that Mr. P’s condition had not improved. Mr. P himself testified to his disabling condition. Neither the OPM nor it’s doctor showed up at the proceeding. Despite this, the administrative judge gave no weight to the testimony of Mr. P’s doctor. The judge’s decision sustained the OPM’s discontinuance of Mr. P’s disability retirement annuity.

Mr. P appealed again, arguing that the judge’s decision had wrongly found that the OPM’s documentation was supported by the evidence. During review, the Board was mystified as to how the administrative judge had reached her decision. It was clear from the record that both Mr. P and his doctor’s testimonies had been consistent and unchallenged. Furthermore, the agency-doctor had never actually received the official position description when making his determination that Mr. P could render useful and efficient service as a Salary and Wage Specialist. As such, the Board found that Mr. P had proved, by a preponderance of the evidence, that he was still disabled and thus still entitled to federal disability retirement benefits.

This case reveals the standard and burden of proof required for when the OPM attempts to discontinue an applicant’s receipt of benefits. Just as in the application process, it is the applicant who bears the burden of proving that his disability still exists. Additionally, he must prove that his disability still exists by a preponderance of the evidence. If he cannot do this, the Board will terminate the receipt of federal disability retirement benefits.

Harris Federal 

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