Federal and Postal Service Disability Retirement: Patience is a Necessity

I have said this many, many times:  If patience is a virtue, then Federal employees must be the virtuous of all people, especially those who are filing for Federal Disability Retirement benefits and waiting upon the Office of Personnel Management to make a decision.

Then, even after it is approved, it is often months and months until one’s case is finalized and taken out of the “interim” pay status to final pay status; or, if the case is denied at the First Stage and you have to file a Request for Reconsideration, submit additional medical and other evidence, file a Memorandum of Law to try and convince the Second Stage Representative that, indeed, contrary to what the First Stage Representative had argued, you have been in full compliance and meet with all of the criteria for eligibility for FERS or CSRS disability retirement benefits — which can take an additional 120 – 150 days.

Then, of course, if it is denied at the Reconsideration Stage of the process, you must file an appeal within thirty (30) days to the Merit Systems Protection Board, where the Administrative Judge is mandated by statute to conclude a case from the time of appeal within 120 days.

The entire “process”  — and this is precisely why I refer to the administrative procedure of filing for Federal Disability Retirement benefits under FERS or CSRS as a “process” — requires and demands patience.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Denials II

It is, indeed, frustrating when a governmental agency makes life-impacting decisions which seem to be spurious and capricious. A review of a disability retirement application by the Office of Personnel Management is supposed to be thorough, with sound reasoning and a fair application of the law. And, in all fairness, the majority of cases appear to meet that standard. It may well be, of course, that since all approval letters of disability retirement applications are standard templates, with boilerplate language and instructions, and since most of my cases are approved at the first level, the impression left is that OPM does a good job in reviewing the cases.

When a case is disapproved, however, it is often the case that the denial is based upon factors which defy logic, which appear to have little or no rational basis, and which selectively focuses upon a narrow reading of the medical reports and records. Thus, often the OPM Representative will take a statement out of context, and declare that the doctor stated X when a full reading of the medical report shows that the doctor actually stated Y. This is unfortunate, and does not reflect the careful review, analysis, and fair rendering of a decision made by most OPM representatives, but occurs often enough to be of concern. On the bright side, however, is that there is always the ability to take it completely out of the hands of OPM, after a second denial — and allow an administrative judge to review it objectively, at the Merit Systems Protection Board. That is why the MSPB was created and exists — to have a third party, objective body review the decision-making process of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement Denials

When your OPM Medical claim is denied by the OPM Disability Retirement Specialist

 

A received letter from the U.S. Office of Personnel Management quashes the Federal employee’s plans for the future. The deep, emotional disappointment is understandable because it prevents the employee to secure a stream of income; to have the recuperative period in which to recover from a progressively deteriorating medical condition; and generally to be able to “move on” in life.  As all rejections have a negative impact upon a person — in terms of emotional, psychological as well as practical consequences — so an OPM denial letter is seen as a rejection of a compendium of submitted proof concerning a Federal OPM Disability Retirement application.

It is not so much that the denial itself obviously represents “bad news” (that is difficult enough), but again for the OPM Disability Retirement applicant, it casts a long and foreboding shadow upon one’s financial and economic future.  For, obviously, the income from the disability annuity is being relied upon; the applicant filed for Federal disability retirement benefits under FERS or CSRS based upon the assumption that it would be approved, and the future calculation of economic and financial stability was based upon the obvious assumption of an approval.

Long-term plans are made based upon the assumption of approval.  Further, it doesn’t help that the basis for the denial, as propounded by the Office of Personnel Management, is often confusing, self-contradictory, and without a rational basis.

It is often as if the OPM Medical Retirement representative just threw in a few names, referred to some doctor’s reports, and essentially denied it with a selective, almost pre-determined view towards denying the claim.  This is unfortunate, because the Office of Personnel Management is under a mandate to make its decision based upon a careful and thorough review of the applicant’s supporting documention.

However, when an OPM Disability Retirement denial is received, one must fight against the initial feelings of defeat and dismay; work is yet to be done, and a view towards the future must always be kept at the forefront.  A time to give up is not now; it is time to fight onward, and to move forward.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The “nexus” between the Reconsideration Stage and the Merit Systems Protection Board

It is an accepted fact that there is a “psychological” aspect to almost everything in life, and this is no less true in the field of disability retirement law.  The “psychological” aspect is the nexus, or bridge, from the Reconsideration Stage to the Merit Systems Protection Board.  From OPM’s viewpoint, this is the last chance to make a decision on a case, before it is taken out of the hands — and therefore “control” — of the Office of Personnel Management.  Thus, OPM wants to be able to “justify” that its decision was reasonable, and legally-based and legally sufficient to withstand the scrutiny of an Administrative Judge.   From the Applicant’s viewpoint, it is a chance to show that OPM was unreasonable for not approving the case.

While it is true that all cases which come before the MSPB are heard de novo (meaning, anew, without regard to prior decisions by OPM), OPM nevertheless never wants to be viewed as ignoring the law and appearing unreasonable, and the Applicant wants OPM to appear unreasonable in the face of the medical evidence already provided.  This is the psychology behind trying to convince OPM to approve a case at the Reconsideration Stage.  Thus, at the Reconsideration Stage, it is important to cite applicable law to OPM, to corner them into a position of appearing unreasonable if the disability retirement application is denied.  On the other hand, the reasonings and underpinning of foundational bases provided in Reconsideration Decisions are often far more superior and accurate than those handed down at the Initial Stage.  In any event, always remember that there is a “psychological” aspect to everything, and it is the duty of an attorney to identify it, use it to the best advantage possible, and cite the appropriate law.

Sincerely,

Robert R. McGill, Esquire

Merit Systems Protection Board: Hearings are not inevitable

The third step in the process of filing and obtaining disability retirement from the Office of Personnel Management is to appeal the case to the Merit Systems Protection Board. This is initiated after a disability retirement application has been denied twice: First, at the initial stage, then, upon a request for reconsideration and an opportunity to submit additional medical and other documentation, if the Office of Personnel Management denies the application a second time, then the Applicant has the right to file an appeal with the Merit Systems Protection Board.

Such a case is then set to be heard by an Administrative Judge, and mandated to be completed within 120 days from the time it is appealed. Many applicants who go into this third stage have the unwarranted belief that a Hearing is an inevitability, and that there is no further opportunity to convince OPM to reverse themselves, or change their minds. That is simply not the case. Often, the OPM representative at the MSPB level is much more attuned to the evidentiary level required, and will entertain the receipt and review of an updated medical report, or additional diagnostic tests, or more detailed treatment notes, etc. The mere fact that OPM denied the application at the first two stages, and the fact that the jurisdictional landscape has now changed from OPM to the MSPB, does not mean that OPM’s mind cannot be changed. The key is to listen carefully at what OPM’s representative is saying at a Prehearing Conference, or even earlier if contact is made with him/her. By listening and complying with a reasonable request, it can save the applicant needless time and expenses (for the testimony of a doctor can, indeed, be expensive), and have the ultimate outcome that the applicant desires: approval of a disability retirement application.

Sincerely,

Robert R. McGill, Esquire