Federal Disability Retirement: OPM’s Detailed Denial

Neither length nor detail constitutes legitimacy.  The spectrum of the types and styles of denial letters issued by the Office of Personnel Management in Federal Disability Retirement cases under FERS & CSRS range from a short paragraph under the “Discussion Section”, to 3 – 4 pages of apparent references to doctor’s notes, reports, etc. — with a lengthy lecture about the need for “objective” medical evidence, and about how a particular medical condition “may be” treated by X, Y or Z treatment modalities.

Don’t be fooled.  One may think that, because OPM provides a seemingly “detailed” explanation of why a particular disability retirement application was denied, that such lengthy detail means that it is somehow “substantive”.  In fact, I often find the opposite to be true:  the shorter the denial, the greater the substance.

The lengthy denial letters contain “substance”, all right — but substance of the wrong kind.  They contain:  Mis-statements of the law; mis-statements of the criteria to be applied; inappropriate assertions of medical opinions (contrary to what one might think, the OPM representative does not normally have a medical degree, let alone a law degree), and a host of other “mis-statements”.

Sometimes, the weightier the denial, the more confusing as far as how to respond.  And, perhaps, that is one methodology as to how OPM wants to approach the case:  If it seems long and complicated, maybe the applicant will sigh, give up, and go away.  Don’t.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Denial at the First Stage

I would like to state that none of my cases have ever been denied at the Initial Stage of filing for Federal Disability Retirement benefits; not only would such a statement be untrue; it would also be unbelievable.

And yes — even the cases that I file on behalf of my clients, get a similarly formatted denial:  a restatement of the criteria for eligibility for Federal Disability Retirement under FERS & CSRS; a discussion with an elaborate reference to doctor’s notes, dates of treatment, targeted extrapolations of statements by the doctors which are not only selectively chosen in a narrow manner to favor the decision of denial, but further, which are often taken out of context.

Some might wonder:  Doesn’t OPM have greater respect for Mr. McGill?  The answer is:  At the First Level, the representative from the Office of Personnel Management is merely making a decision on one of thousands of files, and a template is being used to process and get rid of cases.  However, one must always remember (as I try to remind everyone) that this is a “process”.  A denial at the First Stage of the process is merely part of the greater process.

It is not something to get annoyed at, or concerned about; it is a stage and a decision which must be dealt with, argued against, and rebutted in the proper, rational, legal manner.

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

CSRS & FERS Disability Retirement: OPM’s Generic Denial

Often, cases are mishandled not because of the “present” mistake, but because the case was never prepared for the “long-term” event.  Let me elaborate and explain. Obviously, an applicant for disability retirement benefits under FERS & CSRS wants to win the case at the earliest stage of the process.  The attorney who is handling any such disability retirement case, similarly, would like to “win” the case at the earliest stage possible.  However, sometimes that is simply not going to be the case. 

In an initial denial, it is often important to not only address the case for the Reconsideration Stage, but also to prepare the case for the next stage — the Merit Systems Protection Board (and, similarly, in preparing an application for Disability Retirement, it is important to prepare such an application not only for the initial review at OPM, but also for the Reconsideration Stage).  By this, I mean that, because there is at least a “possibility” that the disability retirement application will be denied again at the Reconsideration Stage, it is important to point out the deficiencies, the lack of clarity, the inadequate reasoning, the outright lies and mis-statements which the Office of Personnel Management may have engaged in as part of the “Discussion” Section of the denial letter.  Often, while OPM may give some “lip-service” to make it appear as if your case was thoroughly reviewed, a closer reading (on second thought, it need not even be a closer reading) clearly shows that OPM did a shabby job in denying a case.  It is what I ascribe as OPM’s “generic denial” — a denial so devoid of any particularity or care as to reveal a complete lack of proper administrative review of the case.  Such lack of proper administrative review is what needs to be shown; it needs to be shown because, if OPM denies the case again, then it is advantageous to the applicant to have the Administrative Law Judge at the Merit Systems Protection Board see that he will be hearing a case which may not have been necessary — but for the lack of diligence on the part of OPM.

Sincerely,

Robert R. McGill, Esquire