Attig Law Firm P.L.L.C

The Washington Post reported on a bill presented in the United States Senate, requiring federal managers to receive more and regular training in a variety of areas. One area of training would be “people skills” training.

After reading the article, I had a few questions:

1) What took so long?
2) Isn’t it a bit sad that we need legislation to instill leadership and people skills in our Federal Management workforce?

3) Can I provide a list of managers that really need the training?

Read the full article here:

I recently had a chance to read through a copy of a guidebook written by Michael Snider and Morris Fischer.

The book is entitled “Fight for your Rights: A Federal Employee’s Guide to the EEO Process”, and is available for $35 at: http://www.sniderlaw.com/pages/book.html

As any federal employee who has gone through the administrative EEO process knows, proving a discrimination claim against the Federal government can be a daunting task. There are some really great legal tools out there to help work your way through the process, but most are written by lawyers and for lawyers. Very few are written for the layperson who is trying to either “go it alone” or even for those just trying to learn more about the process before they file a complaint.

Michael Snider’s book is probably the best tool I have seen to assist Federal employees in learning the EEO Process.

First, the authors don’t talk down to you: they assume you are an intelligent person who knows a little bit about what you are getting into. The authors seem to take the position that, given some time and information, most Federal employees can improve their presentation of their case throughout the administrative EEO process.

Second, the authors don’t assume that you are an attorney with years of experience, or that you know all the legal jargon and case law. Instead, they give you practical examples of how the law plays out in real cases before the EEOC.

While I strongly recommend that any Federal Employee going through the EEOC process at least consult with (if not retain) an attorney, this book is a great tool for learning more about the process. For those who do decide to represent themselves “pro-se”, this book would be a great desk reference or starting point. In my opinion, it may be the best $35 you can spend on your EEO case.

In a previous post, we outlined “5 Steps to Prove Eligibility for FERS Disability Retirement.” We outlined the 5 basic steps: Eligibility, Disability, Continuity, Reassignment, and Appeal. This post will discuss Step 5: Appeal.

You’ve shown that you are eligible for disability retirement, your disease/injury is preventing you from providing useful and efficient service, and the Agency is unable to reassign or accommodate you. What next?

Contact your Agency Human Resources or Labor Relations specialist, or contact OPM to get the proper forms. As you prepare those forms, be sure to include substantial medical documentation that connects the essential functions of your job to your medical condition. That substantial medical documentation should consist primarily of doctor’s statements, charts, lab results and any other medical evidence which supports your position. Your own statement of your physical, mental or emotional pain and the limitations you experience will be helpful to OPM (and later to the MSPB), but it should be only a small portion of what you submit to OPM.

Your Agency should be able to provide you assistance, including getting you the necessary forms and or statements and other proof needed to file your appeal. Be careful, though - if you are applying for disability retirement in settlement of some performance or conduct action (suspension, demotion or removal), the Agency is not always going to be acting in your best interests. It is always best to consult with a lawyer familiar with this process to ensure that the Agency does not use your disability retirement application to hinder or eliminate other legal rights you may have.

If you have included sufficient proof as discussed in Steps 1 through 4, then your application will hopefully be approved. If it is, you will be subject to periodic reviews and medical evaluations (until age 60) to determine whether the disease/injury continues to exists or whether you have been restored to your previous earning capacity.

If your application is denied, you should immediately request reconsideration from OPM. This is a very important step - if the request for reconsideration is denied, a potential MSPB appeal could be limited by what is or what is not in this request for reconsideration. We highly recommend that you consult with an attorney experienced in such matters prior to submitting your request for reconsideration. Whatever you do, do not miss the deadline to request reconsideration. Send your request for reconsideration via Certified mail, return receipt requested.

If your request for reconsideration is denied, you should receive an opportunity to file an appeal with the Merit Systems Protection Board (MSPB). The burden will be on you to persuade the MSPB that you are entitled to disability retirement benefits. OPM will have to bring forward some evidence demonstrating its decision to deny disability retirement. If not legally, then practically speaking, the burden is going to be on the employee to show their eligibility for disability retirement.

The Board is not bound by disability determinations made by the EEOC, OWCP or the Social Security Administration. These decisions may have some weight, but just because Social Security has found that you are disabled, or the EEOC has found that you are a disabled employee are no guarantee that the MSPB will make the same conclusion. This is because, as discussed earlier, there are several different legal definitions of disability, and no two are the same.

If you decide to appeal OPM’s denial of disability retirement to the MSPB, it is always best to consult with an attorney who has experience before the MSPB.  It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee retirement issues to discuss the facts and law of your particular case. If you have questions about your eligibility for OPM disability retirement, or want to discuss an appeal of OPM’s denial of your disability retirement,  contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In a previous post, we outlined “5 Steps to Prove Eligibility for FERS Disability Retirement.” We outlined the 5 basic steps: Eligibility, Disability, Continuity, Reassignment, and Appeal. This post will discuss Step 4: Reassignment.

Before counseling an employee to seek disability retirement or supporting an employee’s application for disability retirement, an Agency must make every reasonable attempt to accommodate the employee. To do this, the Agency should review all vacant positions under in the Agency, at the same grade and pay, in the commuting area and determine if the employee meets the minimum qualifications. If the vacant position is available, the employee will not be approved for disability retirement.

Now, what if the Agency makes an offer of accommodation to an employee and they refuse it? It depends. If the position is in the same commuting area, the same grade/pay, and the employee can meet the minimum qualifications, then the employee will not be eligible for disability retirement benefits if they refuse the offer.

However, the employee must be able to meet the minimum qualifications - so if the offer is for a position that the employee cannot do because of the disease or injury, then the Agency’s offer is not reasonable.

Before rejecting any offer of reasonable accommodation, it is in your best interest to consult with an attorney experienced in laws governing Federal Employment. Rejecting an offer of an accommodation can having detrimental and conflicting results on an employee’s rights under the Americans with Disabilities Act (ADA) and the Rehab Act, any pending OWCP claims, and the employee’s eligibility for disability retirement benefits.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee retirement issues to discuss the facts and law of your particular case. If you have questions about your eligibility for OPM disability retirement,  contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In a previous post, we outlined “5 Steps to Prove Eligibility for FERS Disability Retirement.” We outlined the 5 basic steps: Eligibility, Disability, Continuity, Reassignment, and Appeal. This post will discuss Step 3: Continuity.

We touched on this step in an earlier post. In order to qualify for benefits, you must have an injury or disease that is likely to continue for one (1) year from its onset.

The primary rationale for this element is to ensure that employees put forth significant medical evidence to support the debilitating nature of their disease or injury.

The best applications for disability retirement benefits show the date of the onset of the injury and disease. They provide detailed information, from medical authorities, showing specifically how the condition will affect the employee’s ability to perform specific tasks of the job. They show treatment plans that have been tried (therapy, medication, or surgery), the patient’s compliance with and response to the treatment, and future treatment plans.

All of this is meant to ensure that disability retirement benefits are provided only to those employees who are truly prevented from useful service to the government because of a disease or injury. Most applicants for disability retirement have a qualifying medical condition - however, most applicants for disability retirement fail to properly use medical evidence and testimony to convince OPM and the MSPB that their condition will continue for at least one year from the onset of the injury.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee retirement issues to discuss the facts and law of your particular case. If you have questions about your eligibility for OPM disability retirement,  contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In a previous post, we outlined “5 Steps to Prove Eligibility for FERS Disability Retirement.” We outlined the 5 basic steps: Eligibility, Disability, Continuity, Reassignment, and Appeal. This post will discuss the second step: Disability.

If you were asked to define disability, you might say that it is a medical condition that prevents a person from doing something other people do with relative ease. That’s a good starting point. Problem is that the law, in its infinite wisdom, has dozens of different legal definitions of “disability”. The definition of disability for the purpose of FERS disability retirement is no exception.

A disability, in the context of FERS retirement, exists when a disease or injury results in a service deficiency of sufficient degree to preclude useful and efficient service. Let’s break that down.

Disease or injury: Most long-term medical conditions will meet the element of “disease or injury”. It doesn’t matter whether your disease/injury occurred on or off the job. It doesn’t matter if it is a physical injury or disease. It doesn’t matter if it’s a mental injury, condition or disease. The primary focus of OPM, and possibly the MSPB, will be whether or not there is a reasonable expectation that you will recover within one year of the onset of the condition, disease or injury. Finally, if you refuse “normal” medical treatment (unless such treatment is inconsistent with you religious beliefs), OPM and the MSPB will likely deny any request for disability retirement. What is “normal medical treatment” could well fill volumes.
Service Deficiency that precludes Useful and Efficient Service: This is the easiest part of the “Disability” test to understand, but the hardest to actually prove. Useful and efficient service is acceptable performance of the critical or essential functions of the job, satisfactory conduct, or satisfactory attendance. If your disease or injury prevents you from doing one (or more, preferably) of these things, it is likely that your service would not be “useful or efficient”. In fact, your service will most likely not be “useful and efficient” if you could get demoted, denied a within-grade increase, or suspended/removed for conduct, attendance or performance that is degraded by the disease or injury.

Do you actually have to have a suspension, removal, or demotion to prove your service is not useful or efficient? No - if your performance, conduct or attendance would continue at a level that one of those actions would result, however, you should be able to prove that your continued service is not useful or efficient.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee retirement issues to discuss the facts and law of your particular case. If you have questions about your eligibility for OPM disability retirement,  contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In a previous post, we outlined “5 Steps to Prove Eligibility for FERS Disability Retirement.” We outlined the 5 basic steps: Eligibility, Disability, Continuity, Reassignment, and Appeal. This post will discuss the first step: Eligibility.

Most employees have little difficulty meeting the Eligibility requirements under FERS. There are two big ones: 1) 18 months of federal civilian service, and 2) while in a position subject to FERS.

To determine if you are in a position covered by FERS, you can look at Block 30 of your most recent SF-50 (Standard Form 50). If this block has the letter “K” in it, you are in a position covered by FERS. Thus, the first piece of evidence you will need is your most recent SF-50.

Now, there are three other codes that could appear in Block 50: L, M, and N. These codes are FERS covered positions for certain special jobs.

• Code L: FERS employee in an Air Traffic Controller (ATC) position
• Code M: FERS employee in a Firefighter or Law Enforcement Officer (FF/LEO) position
• Code N: FERS special code for certain reserve technicians

So, if you have 18 months of service in a position where codes K, L, M, or N appear in Block 30 of your current SF-50, then you likely meet the Eligibility element for disability retirement.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee retirement issues to discuss the facts and law of your particular case. If you have questions about your eligibility for OPM disability retirement,  contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.