Attig Law Firm P.L.L.C

There are several types of appeals which can be made to the MSPB which are “constructive” in nature.   A constructive action occurs when the Agency didn’t actually take an action but can still be held liable as if they took the action.  One example of a constructive action is a constructive suspension - you can read about it by clicking here.

Another type of constructive action is the coerced retirement.   Typically, the MSPB does not have jurisdiction over an employee’s retirement. Why?  Because in most cases, the decision to retire is the choice of the employee not the Agency.  There are situations, however, when the circumstances surrounding a retirement could be described as “coercive”.  In those situations, the MSPB might have jurisdiction over a claim of “involuntary or coerced retirement”.

Here are the common situations when a retirement could be alleged as coerced:

1. The Agency was about to take a personnel action (suspension, removal, etc) which had no legitimate basis and which motivated the employee to retire.
2. The employee was medically or mentally incapacitated from making the decision to retire
3. The employee relied on erroneous advice from the Agency that influenced the decision to retire
4. The totality of the circumstances were such that a reasonable person in the employee’s situation would have felt compelled to resign.

[There may be other scenarios where a retirement is considered to be coerced, so you should talk to an MSPB attorney to discuss the facts of your case.]  The above scenarios are not easy to prove - you generally have to have some pretty good evidence to prevail on your claim.  Moreover, since the Board may not have jurisdiction over your claim until you prove one of the above types of coercion, the issue of whether or not to hold a hearing can often get quite tricky.

A common example is that in most cases, when an Agency is about to fire a senior employee who is retirement eligible, they will often give the employee an opportunity to retire in lieu of the termination.  Some of the Agency attorneys I used to work with called this a “Last Rites” meeting, which always seemed rather crass to me.  Nonetheless, the MSPB has often found that just because an employee had a tough decision - choosing to retire or challenge being fired - does not mean that they were coerced to retire.

I’ve provided an example of a case (through the link below) where the full MSPB has recently reversed the decision made at the regional level; this decision shows a scenario where an Agency may have coerced an employee’s retirement - it is important to note that the Agency has not been found (yet) to have coerced this employee into retirement.  This decision is noteworthy because the full MSPB decision actually discusses the factual circumstances which surrounded the retirement at issue in the case.  You can read the decision in Jones v. Dept. of Treasury, MSPB Docket No. DA-0752-07-0206-I-1 (December 13, 2007) by clicking here.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case.  If you think that your Agency may have coerced you into retiring, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

This is the fourth post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here.

This post - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the third way to establish service-connection: “Service Connection by Legal Presumption”.

It is difficult for any veteran to produce medical evidence showing that it is “as likely as not” that their disease or injury occurred in service. It is event harder when that veteran’s disease or injury occurred when he was a prisoner of war, or when she was exposed to radiation during service. In those case, medical evidence is almost never available; to help veterans in these - and many more - situations, Congress created a rule that said that when a particular disease manifested within a certain period after the veteran’s service, the VA should presume that the disease was service-connected. This rule essentially becomes the legal “bridge” or the “nexus” between the veteran’s current disability and the veterans’ in-service injury.

In order to be eligible for the presumption, you must fit into one of the following two categories of veterans:

1. You served 90 continuous days during a period of war; or,
2. You were a peacetime veteran - 90 continuous days after January 1, 1947 - and have been diagnosed with a particular tropical disease.

In other words, peacetime veterans are eligible for presumptive service connection for certain tropical diseases only.

Once a veteran has met this eligibility requirement, all the veteran has to show is that the disease manifested to a degree of a 10% impairment, within the presumptive period that is outlined in the statute or regulation for that disease. You can prove this by medical evidence and/or competent lay evidence. Keep in mind, too, that the disease does not need to be diagnosed within the presumptive period - the veteran need only provide evidence of characteristic symptoms of the disease within the presumptive period.

How long is the presumptive period? Here is the lawyer’s favorite answer - it depends. The period varies depending on the particular class of veteran and the particular disease. For example, if tuberculosis manifests within three (3) years of discharge, it may be presumed service-connected. If multiple sclerosis manifests within 7 years of discharge, it may be presumed service-connected. Also, there is a special set of presumptive periods for Vietnam veterans exposed to Agent Orange. Here’s a link that discusses how the VA recently established service-connection by legal presumption for “blue water” Navy vets for certain diseases linked to Agent Orange exposure.

Any legal presumption can be overcome, and this one is no exception. The VA can overcome this presumption by producing affirmative evidence that the condition was not service-connected. Typically, this will be easier for the VA to show when there is an injury that is recognized to cause certain diseases and disabilities which occurs between separation from service and the onset of the condition.

Here’s an example (we borrowed this example from the Veterans’ Benefits Manual, found at page 120.) A former POW is seeking service-connection by presumption for a particular type of back-injury; that same POW suffered a severe back injury in a car accident occurring right after separation from service. This might be affirmative evidence that is sufficient for VA to overcome the presumption of service connection.

If your claim for VA benefits will be based on service-connection by legal presumption, or if you are not sure if your disease or disability is eligible for a legal presumption, a Veteran Service Organization or a VA Benefits lawyer should be able to help you determine if the legal presumptions apply to your situation.

If you would like to consult with an attorney at Attig Law Firm that handles VA disability compensation claims, contact us to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Most employees do not know that they do not have to be the actual victim of a “sexual harasser” to be harmed by sexual harassment.   People who are not the target of sexual harassment but who work in environments where sex harassment is occurring can file “third party” and “bystander” harassment suits. These types of claims can be filed by men or women.

There are two types of third-party sexual harassment claims: “quid pro quo” or hostile environment.

“Quid pro quo” is a Latin phrase meaning “something for something” or “this for that”.  In laymen’s terms this simply means “You scratch my back and I’ll scratch yours”.  Quid pro quo sexual harassment is the most commonly known - in exchange for some sexual favor, an employee is given a benefit or boost in the workplace.    How can this affect a third-party - someone other than the employee giving the “sexual favor”?  Simple - when the employee who is not harassed loses a job benefit or opportunity to someone who is less qualified that submitted to the sexual harassment.

Here’s an example that really happened.  The manager of a small and specialized workgroup had a sexual affair with his subordinate and administrative assistant.  The manager gave his “girlfriend” extra bonuses, time-off without using leave, flexible schedules, etc., that weren’t available to other administrative assistants in the office.  Another administrative assistant realized that she was losing out on job opportunities and benefits (she was much more qualified than the paramour for the paramour’s job) because of the affair the boss was having; she realized that unless she slept with the boss, she wasn’t going to get ahead.  This is a classic form of third-party “quid pro quo” sexual harassment.

The second type of third-party sexual harassment is “hostile environment”.   Consider the same scenario above - if one employee who grants sexual favors is given preferential treatment, the motivation and work performance of other employees may be negatively affected.  This is a tough case to prove - not because it doesn’t happen or there isn’t evidence of it, but because you will have to prove the harassment was “excessive, pervasive and opprobrious”.  That means, essentially, that the harrassment was severe enough that it would shock the conscience of the average person, it occurred over a significant period of time, and the negative effects were unmistakeable and long-lasting.

If you think you may be the victim of third-party or bystander sexual harassment - or the victim of any discrimination in the Federal workplace -  contact the Attig Law Firm, PLLC, today to discuss your situation.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees.  We are providing this information to give you, the federal employee, more information, more knowledge and more power about your MSPB appeal, EEO Complaint or OWCP claim.  We are not providing you with legal advice by giving you access to this information.

By far, this is the most common question that is asked during consultations.  The quick answer is “Yes, you should apply for both if you believe you are entitled to both”.  However, you will not be able to receive both at the same time.

If you are eligible for disability retirement through OPM, then apply for it.  At the same time, if you are eligible for disability compensation from OWCP, apply for it.  If you are granted both you will have to make an election between the two.  If you accept both, and the mistake isn’t caught, it is highly likely that sometime down the road you will get hit with a huge bill from Uncle Sam seeking recoupment of overpaid benefits.

One word of caution - if the Agency removes you from the rolls, you have only one (1) year from the date of separation to apply for disability retirement through OPM.  Do not miss this deadline - as discussed throughout this Blog, the government loves their deadlines, and they stick to them ferociously.  Unless you have legal “good cause” for missing the one-year deadline to apply for OPM disability retirement, you will have forever lost your ability to apply for that benefit.

There are reasons why you may or may not want to accept one or the other.  The biggest advantage of OWCP disability compensation payments is that they are currently not taxed - at least as of the date of this post (December 27, 2007).  There are other advantages and disadvantages you should consider - every situation is a little bit different. Contact a lawyer at the Attig Law Firm to discuss your specific OWCP or OPM disability retirement questions.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees.  We are providing this information to give you, the federal employee, more information, more knowledge and more power.  However, we are not providing you with legal advice by giving you access to this information.

I just saw this article (click here to open in new window) about some Veterans who are being taken in by a very common scam.

The scam isn’t really all that devious - you can read about it in detail at the above link - it’s as simple as veterans being charged a fee for a service that they can get for free.  The problem is that these folks seem to be preying on veterans in nursing homes and other care facilities.

I can think of no reason why you should pay a fee to anyone to help you file your original claim with the VA. The law allows attorneys to receive fees later on in the process, so I’m not talking about that sort of thing.   There are too many Veteran Service Organizations that will help you prepare your claim for free.  Some of these scam artists tell vets: “You are paying to make sure your claim is done properly and professionally which decreases the chance of being denied benefits”.  There is no service out there which can accomplish this result for a fee.   Paying someone to prepare or file your new VA claim is just throwing your money away.

If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.

Here’s a scenario that can happen quite frequently.  You are driving a vehicle as part of your government job, and you get hit by another driver.  You file a complain for benefits with OWCP and your injury is accepted as an on-the-job injury.   Can you sue the other driver that hit you and caused the injury?  The short answer is “yes”, but there is information you may need to know before going forward with that cause of action.

First of all, if you believe someone other than the government is responsible for the on-the-job injury, you need to let your Agency and your claims examiner at OWCP know.   Based on the circumstances, you may be able to sue the other driver on your own, or you may choose to assign the claim/lawsuit to the United States.   Failure to do one of these two options could lead to a forfeiture of your OWCP benefits.  The Postal Service is a little different than other federal agencies, so you should research the rules of your particular agency as well.

The tricky part - and one reason that a lot of attorneys practicing in the Personal Injury field don’t often take this kind of claim, is that OWCP rules govern how any recovery should be apportioned between you, the government and your attorney.  Here’s the general way any recovery is apportioned.

• Out of the gross recovery, your attorneys’ fees and costs of suit are taken out first.  OWCP will only allow a “reasonable” attorney fee - traditional rates of 33% - 40% of the gross recovery will, in all likelihood, be considered reasonable.
• Out of the remaining amount, you will be permitted to retain 1/5th , or 20%.
• After these amounts are subtracted,  OWCP will compare the recovery amount remaining to the amount of benefits already paid out to you (called the refundable disbursements).  If the refundable disbursements are less than the amount of recovery remaining, then this amount (called the surplus), and which includes government attorney fees, will be yours to keep.  However, if you are still entitled to any OWCP benefits at the time of the recovery, those benefits will be reduced (or credited) dollar for dollar against the amount of surplus you retain.

A couple of points - if you received Continuation of Pay (COP), you will not be required to pay this back to OWCP (nor will the amount be counted as a refundable disbursement).  This is because COP is not compensation for subrogation purposes.

If your recovery includes recovery for individuals other than yourself (for example, damages recovered for loss of consortium to your spouse), then OWCP has complicated “allocation” rules. These rules are meant to recognize that OWCP is entitled to reimbursement for benefits paid, but also that it would not be just to require you to reimburse the entire recovery.

Third party claims can become very complex, very quickly.  A mistake on your part can have significant negative financial repercussions for you.  It is best to consult with a lawyer who is familiar with OWCP claims if you have questions about a claim of this nature; contact the Attig Law Firm, PLLC, if you would like to consult with an attorney about your OWCP third-party claim

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees.  We are providing this information to give you, the federal employee, more information, more knowledge and more power.  However, we are not providing you with legal advice by giving you access to this information.

This is the third post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here.

This post - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the second way to establish service-connection: Service Connection via aggravation to pre-existing injury. This type of service-connection should be used when you had a condition that pre-dated your military service, and your time in service made that condition worse. There are a couple of major roadblocks you will have to overcome in this type of claim.

The first is that your entrance physical will have to make some reference to the pre-existing condition. The VA gets the benefit of the doubt in this case - you are presumed to have been physically and mentally sound when you entered the service, unless your entrance physical states otherwise. For example, if you had an old basketball injury to your knee, and this wasn’t noted in your entrance physical, the VA is required to presume that the knee injury didn’t pre-exist your military service. In order to overcome that requirement, you will need “clear and unmistakeable” evidence that the condition pre-existed service.

A doctor’s declaration that she treated you for the hypothetical knee injury (discussed above) prior to service would, in all likelihood, be clear and unmistakeable evidence. What if the same doctor says that the knee injury pre-existed your military service, but has no record of treatment - probably not clear and unmistakeable evidence. How about if the doctor says that it is highly probably that the knee injury pre-existed service - again, probably not clear and unmistakeable evidence. There are other ways you can make this showing - you should discuss your claim with a Veteran Service Organization or a VA Benefits lawyer to discuss other approaches or strategies to meet this burden of proof.

Once you successfully show that you had the condition prior to your service, you have another obstacle to overcome - you have to show that your condition was made worse because of your military service. This requires showing a lot more than the occurrence of symptoms of the condition during service - you actually have to show that your condition got worse. Once you make that showing, however, the VA has a high burden to defeat your claim - they have to show clear and convincing evidence that the preservice disability did not increase in severity during service.

So how do you show that your condition actually worsened then? It’s not easy, and can be quite complex. I found a great posting that discusses the types of evidence that may be needed and illustrates the complexity of the process - click here to read the article at VA Watcdog.org. [One caveat - the preceding article also discusses secondary conditions, which are covered in a later post in this thread.] If your claim for VA benefits will be based on the aggravation of a pre-existing condition, a Veteran Service Organization or a VA Benefits lawyer may be able to help you establish direct service connection if your situation doesn’t fit the two “molds” above.

If you would like to consult with an attorney at Attig Law Firm that handles VA disability compensation claims, contact us to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Many Federal Employees are also U.S. Veterans with a service-connected disability. What happens when a Veteran with a service-connected disability gets injured on the job - does he/she have to give up the OWCP or VA benefits?

Generally speaking, you can collect both benefits at the same time, as along as the two injuries are completely separate, unless…

1. the on-the-job injury (or, god forbid, death) results from an injury that the VA has held was service-connected; or,
2. when the VA gives a veteran an increased impairment rating due to an on-the-job injury

In the case of Number 2, your election will only be between the increased portion of the VA benefit and the OWCP benefit - not the whole VA benefit.

For example, say you injured your back lifting in the Army. The VA gives you a 30% disability rating. Later, you injure your back lifting heavy mail trays at work as a civilian employee with the Postal Service. You will be required to elect between the increase in VA benefits (30% to 70%) or the OWCP disability benefits. You will not have to elect as to the compensation for the first 30% rating by the VA.

The election between OWCP and VA benefits can be tricky, and can have significant repercussions if you don’t make the election. It is best to consult with a lawyer who is familiar with OWCP claims and/or a VA Benefits attorney or a Veterans Service Organization when making this decision.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

The general public is not nearly as sympathetic to disabling mental health conditions as they are to disabling physical conditions.  That’s the prejudice that those who suffer from mental health conditions are up against.

I was reminded of this in a recent hearing.  Our client had a severe mental health condition, and had been out of work for several weeks to seek treatment of this condition - she was heavily medicated and under the frequent care of mental health professionals for the entire time.   When her management thought she was out of work too long, they fired her.  Setting aside the fact that our position was that management violated the Family and Medical Leave Act (FMLA) by denying her FMLA request and firing her, it was clear to us that the motivating factor was the client’s mental health condition.

On the stand, her first and second line supervisor both testified that they knew she had the serious mental health condition. They both testified that they knew she was out of work to get treatment for that condition.  They both testified that they knew she could not perform at least one of the essential functions of her job during the time she was seeking treatment.  But, when asked if the saw her condition as a disability, both said no.

When the first witness (the client’s immediate supervisor) said she didn’t view our client as disabled despite knowledge of the above facts of her mental health condition, I violated the cardinal rule of Cross-Examination, and asked this question: Why?  The answer didn’t really shock me all that much, unfortunately. I’m paraphrasing here but the witness told us she didn’t view our client’s mental health condition as disabling “because I have friends with this mental health condition and they’re not disabled.”

[Insert sound of screeching record here]

Did she have any medical experience?  No.  Did she have any medical training? No. Did she have any medical expertise whatsoever? No.  All she had was her narrow-minded belief that because her friend wasn’t disabled, that our client couldn’t be.

[This same supervisor, by the way, testified at great length about how benevolent she was to the disabled, listing example after example of how she had gone out of her way to help the disabled.  After I got over my disgust with her “I-have-friends-that-are-black-so-I-can’t-be-a-racist” explanation, I realized that most,  if not all, of her examples dealt with physical disabilities].

Mental health conditions are just as serious as physical disabilities. They are just as limiting - and in many ways more limiting - than physical disabilities.  Yet society, as a general rule, shuns the mentally disabled.  Malingerers, weaklings, fakers, wimps…those are, unfortunately, the general public perceptions of those with mental health disorders.  Though we never went deep enough in the cross to explore this, I would be willing to bet that this manager - whether she would admit it or not - viewed our client as ‘weak’ because she had a mental health disorder.

The case settled midway through the hearing - hopefully the Defendants were motivated to settle because they finally realized  that the Americans with Disabilities Act and the Rehabilitation Act were passed into law for the very purpose of protecting individuals with disabilities - even  those with mental health disabilities - from this type of bigotry.

A recent experience in an MSPB Hearing reminded me of one of the most important tenets of advocacy before the MSPB: always read the Judge’s Orders. Let me tell you what happened.

At the opening of the hearing, the Agency called its first witness to testify. This particular witness was on our witness list, but not on the Agency’s witness list. When this is the case, the Agency cannot usually conduct a direct exam of that witness. I objected to the Agency calling one of our witnesses in its case in chief (most times I wouldn’t object to something like this, but in this matter, I was concerned that it might affect our case strategy a tiny bit). The Agency responded by saying that no, in fact the witness was on the Agency’s witness list, and they were entitled to call the witness in their case in chief.

The Judge looked back at her Summary of Pre-Hearing Conference, and sure enough, the witness was identified as an Agency witness.  However, looking back at our Pre-Hearing Submissions, the Agency had never sought to even call the witness.   The Judge made the (benign) mistake of ruling that the Agency had identified the witness for their case in chief. Nobody caught the error - and guess what? The Judge’s ruling in the Summary of Pre-Hearing Conference generally governs everything that happens at the hearing of the case.

Now, in this case, the error turned out to be harmless - very embarrassing, but harmless.  The witness was, in fact, more helpful to our case on direct exam then she ever could have been on cross, for reasons I’m not going to go into on a public forum.

The morale of the story:  always read the Judge’s Orders. If you do not feel that the Judge’s Order is correct, you usually have ten (10) days from the date of the Order to file an objection and/or a Request for Correction. If the Judge’s “mistake” is significant - do not hesitate to object to the Order and seek a correction of the Order.

That can be a pretty big “IF”.  Don’t challenge every mistake for the sake of having a “perfect record”.  If the mistake won’t affect the outcome of the case, it is probably not worth the effort to change it.   Moreover, if the mistake is inconsequential, objecting and/or trying to correct the mistake may only serve to alienate the Judge.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees. It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case.