Attig Law Firm P.L.L.C

Often we see letters from OPM denying an employee’s request for disability retirement based on the fact that there is no evidence that the disability resulted in any performance, conduct or attendance deficiencies.   Usually, OPM’s analysis stops there.

However, this is not the only element that OPM must consider.   When there is no performance. conduct or attendance deficiency, the relevant question is whether the appellant’s medical condition is incompatible with either useful and efficient service or retention in the employee’s former position.

If OPM fails to consider both of these elements, then you may have grounds to appeal OPM’s decision to the Merit Systems Protection Board (MSPB).  Before the MSPB, you will need to show evidence of a disability (click here to link to our series of posts on disability retirement under FERS.

Most importantly, a determination of disability must be based on the probative value of all of the evidence, including: (1) Objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; and (4) all evidence relating to the effect of the employee’s condition on his ability to perform in the position he last occupied.

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 believe that an OPM denial of disability retirement is improper, and would like to challenge the OPM decision on disability retirement to the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

A client of the Attig Law Firm, PLLC, prevailed in her claims of discrimination against the United States Postal Service.  Names of individuals involved and their locations will not be revealed at this time.

The client is a Rural Carrier Associate, and alleged that she was discriminated against on the basis of her race, age and sex, when the Agency issued a 14 day paper suspension, when she was denied the use of postal vehicles, when she was denied assistance on her routes, when she was denied prompt pay adjustments, and when she was required to submit medical documentation for certain brief absences.

The Postal Service, in this case, had advance notice of possible sex discrimination and/or sex harassment in the workplace, as a USPS Workplace Intervention Team had previously released a report illustrating the problems with this particular postmaster.

For example, the Workplace Intervention Analyst testified at hearing of complaints from over 21 employees, many of them female, that the male Postmaster in the USPS had waived a fire extinguisher around like a sex organ, that he had made comments about a particular employee not being able to keep her legs together, that he introduced a chiropractor to his male employees by telling them “she is not that bad looking either”, that he had made several comments in front of female employees about his “wee-wee”, and that the employees in this particular post-office felt that favorable treatment was given to those employees that were “young, blonde, and pretty”.

Particularly disturbing was the Analyst’s testimony that the Postmaster was evasive in his responses to the analyst’s questions, and that the Postmaster attempted to diminish the Workplace Improvement Analysis findings. Indeed, the Administrative Judge also found the Postmaster to be evasive, and concluded that the Postmaster’s testimony denying discrimination was not credible.

The evidence at hearing illustrated the race-based problems that exist at this particular Post Office as well. Only 5 black employees have worked at this particular post office in the past 3 years.  One was fired, another resigned, another was transferred, and a fourth walked off the job.  The fifth, our client, filed the EEO complaint in 2007 that led to this decision.

The EEOC Administrative Judge found that our client had successfully proved that the Agency’s proffered reasons for its action were a pretext for discrimination.   The next step in the process will be discovery and petitions on the matter of damages, followed by the Administrative Judge’s rulings on the matter of damages.

Congratulations to our client - leading the charge against a discriminatory Postmaster has cost our client dearly in terms of health, money and reputation.  She has has worked her heart out in a good cause and lies exhausted on the field of battle - victorious.

The Attig Law Firm, PLLC, recently learned that it was successful in its
efforts to assist a U.S. Veteran in securing disability benefits for a
disability he incurred in the course of his military service.

Our client was a peace-time veteran of the U.S. Air Force. During his time
in the Air Force, he suffered substantial hearing loss. In 2005, nearly
three decades after his military service, the Veteran applied for disability
benefits for the loss in hearing caused by his military service. In 2007,
after 2 years of delay by the Department of Veterans Affairs, the Veteran
contacted the Attig Law Firm.

Because of the Veteran’s special circumstances, the Attig Law Firm agreed to
represent the Veteran, pro-bono, before the VA Regional Office. Federal law
and VA regulations restrict attorneys from representing veterans in their
disability benefits claims at the Regional Office stage, unless the attorney
represents the veteran pro-bono.

In a decision received in July 2008, the Attig Law Firm learned that the VA
Regional Office has approved disability benefits for our client’s hearing
loss. The Veteran will be paid back-benefits in excess of $20,000.00, and
will receive several hundred dollar increase in his monthly benefits for the
remainder of his life.

The Attig Law Firm, PLLC, represents U.S. Veterans who have been denied
disability benefits for injuries that resulted from their military service.
The Firm currently represents peace-time and war-time veterans of all
branches of the military, at all levels of the claim process (VA Regional
Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’
Claims).

Here is a question we have seen with increasing regularity over the past several months. A Federal employee/retiree has been receiving disability benefits through OPM, and for some reason or another, OPM determines that the employee/retiree has been overpaid benefits. OPM determines a repayment schedule that is onerous, and it some cases, unconscionable. The question is this: can a Federal retiree seek waiver of an overpayment of benefits.

Generally, the answer is “yes” - the employee/retiree can appeal OPM’s overpayment decision to the Merit Systems Protection Board (MSPB).

Let’s assume, for this question, that the overpayment is valid - that the employee/retiree has in fact, received more benefits than those to which he/she is entitled. In those cases, the employee/retiree can seek either a full or partial waiver of OPM’s entitlement to recovery of the overpayment.

Waiver of recovery of an overpayment may be granted when the federal employee/retiree meets two criteria:

1) the employee is without fault; and,

2) recovery would be against equity and good conscience. 5 U.S.C. § 8346(b); 5 C.F.R. § 831.1401.

As to the first - if the employee is with fault, and had reason to know that the overpayment was occurring, the MSPB has held that the employee/retiree should set aside the overpayment so that the funds are available when OPM comes calling. Of course, many federal employee/retirees are not in a position to do so. If you have failed to set aside a known overpayment of retirement benefits, it is best to speak to an attorney or lawyer that practices before the MSPB.

To the second element, the MSPB has held that recovery is against equity and good conscience when: “it would cause financial hardship, the federal employee/retiree can show that because of the overpayment (s)he relinquished a valuable right or changed positions for the worse, or recovery could be unconscionable under the circumstances.” 5 C.F.R. § 831.1403(a).

Also, where the appellant is without fault and recovery of some portion, but not all, of the overpayment would be against equity and good conscience, a partial waiver may be warranted.

To show that recovery would work a hardship on the federal employee/retiree, (s)he should show that his/her ordinary and necessary monthly expenses, plus a $50 for emergency expenses, exceed his/her current income or liquid assets. Fusco v. Office of Personnel Management, 42 M.S.P.R. 501, 508 (1989).

To do this, in the first letter you receive from OPM, you should be provided a Financial Resource Questionnaire (FRQ). It is important that you fill out this form completely and properly, as OPM will attempt to “nickle and dime” you to prove that you have liquid assets available to repay the overpayment. For example, including a category of “other expenses” will cause OPM to strike any of those expenses claimed, as they were not properly itemized.

The Attig Law Firm, PLLC, recommends that, in addition to using the FRQ provided by the OPM, the Federal employee/retiree should attach, as a continuation sheet to the FRQ, a more thorough and complete “family balance sheet” that paints a more accurate picture of your real financial situation. In some situations, to ensure the best results with a minimum of legal intervention, it is best to include evidence of each claimed amount on this balance sheet.

After submitting the FRQ, the OPM will make a reconsideration decision - they can waive or reduce the overpayment or, as we are seeing with increasing regularity, ignore your position that your expenses exceed your income. If you are not pleased with the OPM’s decision, you can appeal that decision, within 30 days, to the Merit Systems Protection Board (MSPB).

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 find yourself in a situation where OPM is claiming that you were overpaid retirement benefits, and would like to challenge OPM’s calculations of the overpayment or the waiver amount to the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.