The Law Office of Michael A. Bell in Lewiston, Maine

FREQUENTLY ASKED Maine pers disability QUESTIONS

1. What do you have to do to win Maine PERS disability benefits?

You need to have sufficient years of covered state or municipal employment, with medical conditions that exist as of your last date in service [LDIS], that prevent you from performing your last most recent job position for the first two years after your LDIS, and thereafter prevent your performing most any job, and the conditions have to be permanent.

2. What is “continuous creditable service,” and are any number of years required?

“Continuous creditable service” includes time working as well as unused sick and vacation time, but does not include absences without pay greater than a month. For all conditions to be considered, those that arose while in service as well as pre-existing conditions, five years of continuous creditable service are required.

3. What if I worked and had less than five years of continuous creditable service?

It makes your case more difficult if any claimed condition on which you are relying to prove disability is pre-existing. The only way then that a pre-existing condition can be considered at all is if you demonstrate that the disabling condition resulted from, or was substantially aggravated by, a work related injury or accident not usually associated within the scope of employment.

4. What is my last date in service [LDIS]?

It is your last date of actual work, plus sick and vacation time. Thus it can be later than your actual last day on the job, and earlier than a formal termination date.

5. What medical conditions are covered?

Physical, emotional, and cognitive conditions are covered. However, they must be diagnosed conditions, not merely symptoms. The conditions must have existed and been disabling as of the LDIS. New conditions, or ones that got substantially worse after the LDIS, are not covered.

6. What if I had many different jobs, and the last one was easier than earlier ones?

Generally, you must demonstrate your inability to perform your last job, as described in a job description as may be modified by your employer.

7. If my conditions need to be permanent, how is permanent defined?

Poorly to not at all. This is the biggest difference with Social Security disability, where the time element is well defined [twelve months or more, or if less, that has ended in death, or is likely to end in death]. For Maine PERS, there is no similar clear definition.

8. What if I have worked more than five years, have diagnosed conditions that clearly prevent me from doing my last job, but my doctors and I think I can recover?

You will not be successful. You need to prove all elements, including permanence, to get past third base to home plate. This is not meant to be a temporary, short-term disability program.

9. What is the process?

Long and difficult, that can be more than a year. You apply, medical and job history evidence is gathered, and Maine PERS makes its decision by relying on a Medical Board, which never sees you. If the decision is a denial, you have thirty days to appeal, by writing a simple letter to Maine PERS saying you wish to appeal. You will be given a CD of the evidence gathered.

At the appeal stage you can choose a time restricted or unrestricted process. We always recommend an unrestricted appeal process to allow sufficient time to gather most especially medical evidence. You will be set up for a phone conference with a Hearing Officer and a Maine PERS attorney, to discuss the case and set up a schedule for submitting evidence and a hearing date, and designating witnesses.

After a hearing, the additional evidence and transcript of the hearing goes back to Maine PERS and its Medical Board, to affirm its previous denial, modify its reasoning, or change its decision to your favor. If in your favor, the process ends.

If the decision remains against you, the case goes to the Hearing Officer, who will ask for written arguments from you and the Maine PERS attorney, and then make a Recommended Decision. The Recommended Decision goes back to Maine PERS, which can accept or reject it. The final decision is then passed along to the Board of Trustees, which can do little more than accept the final decision except under the most limited of circumstances.

10. What is the best way to be successful?

Treat all your medical conditions by seeking all appropriate medical care. By doing so, you document your conditions. Be aware that you need to document your conditions as of your LDIS and since. This means relying on evidence on or before the LDIS, and evidence that relates back to the LDIS.

We believe that you cannot succeed without the active participation of a medical provider, in written reports and possible testimony at a hearing. Such testimony can be set up by phone, to lower somewhat the cost of paying for a medical expert.

11. Do I need representation?

The process is long and difficult. Getting specific medical information that is useful can be a challenge. Generally speaking, the further you go in the process, the more complex it becomes. No matter what, you can discuss matters with us, without cost or obligation, to make the best choice for you.

12. What’s the fee?

Given the length and difficulty of the process, we cannot undertake such cases without a minimum, win or lose, fee, with a deposit requirement. Representation can be at the application or appeal stages. If successful, the fee is based on the higher of 1/3 of back benefits won or an hourly rate.

13. Any other costs?

Yes, and they can be substantially more than for photocopying, faxing, and travel, as we believe you need to hire a medical expert to report and possibly testify on your behalf.