CSRS & FERS Disability: The Filing I

Never be deceptive in your filing. Always be truthful. To be deceptive or untruthful will harm your credibility, your case, and ultimately, may defeat your ability to obtain disability retirement benefits. Now, there is a conceptual distinction between being “truthful” and emphasizing certain issues of your case, while leaving certain other issues as secondary and less prominent in the documents & supportive papers filed.

Thus, to take a rather crude example, while everyone in the world spends a great deal of his or her life in the restroom, we rarely — if ever — talk about such events. Is it because we are not being “truthful”? No — instead, while it is an issue which is not emphasized, it is not something which we are also being deceptive about.

Thus, with respect to disability retirement issues, one should never deliberately attempt to mislead, hide, or otherwise “expunge” certain aspects of the disability retirement application. At the same time, however, those aspects which are not very helpful, or which may harm your case, should not be placed in bold-type or underlined in red. Wherever possible, those aspects which will weaken your case, should simply be de-emphasized — but never deliberately hidden.

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

OPM Disability Retirement: The Psychology of the Process

There is, of course, the “psychology” of the process of filing for disability retirement benefits.  The term itself (psychology, psychological) is all too often misused.  All that is meant in this context is that, at each stage of the process (the initial application stage; the Second, Reconsideration Stage; the Third, Merit Systems Protection Board Stage; the fourth & fifth stages of an appeal, either for a Petition for Full Review or an appeal to the Federal Circuit, or sequentially), the applicant should have a general idea of the level of people the Applicant is dealing with.

Thus, for example, at the initial stage of the process, one should not expect the OPM Representative to be fully conversant in the law; whereas, if the case gets to the Merit Systems Protection Board Stage, the OPM representative is fairly well-versed in multiple aspects of the laws governing disability retirement.  Additionally, the level of medical knowledge varies from one OPM representative to the next.

This is not to say that each stage of the process requires a greater level of intellectual input or information; nor does it mean that each stage should be “tailored” based upon the expected level of competence.  Rather, an awareness of what to expect, how to respond, and what level of intellectual responsiveness are all necessary ingredients in preparing and filing a successful disability retirement application. In short, it is important to know the “psychology” of it all.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Denial at the First Stage

Many individuals who have tried to file for Federal Disability Retirement benefits under CSRS or FERS get the disability retirement application denied at the Initial Stage of the process.  Would I rather have had that person come to me at the First Stage and have me prepare & file it?  Yes.  Are the mistakes made by the unrepresented Federal or Postal Worker irreversible?  No.  Would the disability retirement application been approved at the First Stage had it been prepared and filed by me?  Probably.  This is not to say, however, that all of my cases get passed through at the First Stage.  However, many of the mistakes which I see over and over, made by unrepresented individuals, could — and should — have been avoided. 

Further, many people who call me after getting the initial denial are surprised to hear me tell them that I don’t care what the OPM denial letter states.  While making for interesting bedside reading, the fact of the matter is that once you have read one such denial letter, you’ve essentially “read them all”.  Rarely is there anything new in an OPM denial letter.  OPM representatives use a template, and fill in dates and references to various medical reports and doctor’s records; but the conclusion of the denial letters are fairly identical:  the medical evidence is considered “insufficient” to meet the legal criteria to be eligible for disability retirement benefits.  It is the job of the attorney to go back to the doctors, get the proper medical documentation, then argue the law to the Office of Personnel Management.  The Second (Reconsideration) Stage of the process is a critical stage — for, if it is denied at this level, the next level takes it a “notch” higher — before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

When Federal Employees Don’t Know about OPM Disability Retirement Benefits and Fall into a Comfort Zone

Many people get confused when they first consult with an attorney about USPS or Federal Disability Retirement benefits.  Indeed, before consulting with an attorney, an individual who is faced with a medical condition which (1) is beginning to impact one’s ability to perform one or more of the essential elements of one’s position and (2) will likely last at least a year — such an individual should first take the time to research various websites to “get the facts” about Federal Disability Retirement.

I have had many individuals tell me that they didn’t even know that such a benefit existed; that when they were separated from their U.S. Government gency, the Postal worker or Federal employee was never informed that he or she could file for Federal Disability Retirement.  Unfortunately, ignorance of the law is not a valid excuse; if you don’t file for disability retirement benefits under FERS or CSRS with the Office of Personnel Management within one (1) year of being separated from service with the Federal Government, you will have lost your right to file — forever.

Furthermore, it is dangerous to “take comfort” in the fact that the Department of Labor/The Office of Worker’s Compensation Programs deemed you to be 100% disabled.  That “100%” disabled status may last a lifetime, or it may last only so long as your particular OWCP caseworker is working on your case.  The next caseworker may take it upon him or herself and decide that, Well, no, perhaps you are not 100% disabled, and perhaps sending you to a “Second Opinion” doctor (who, it just so happens, is receiving about 95% of his or her income expounding such “second opinions”) will result in a medical finding that you miraculously “recovered” and are able to go back to work.  Benefits cut off.  You waited a year or more after being separated from Federal Service to find this out, without having filed for Federal Disability Retirement benefits.  You are then, unfortunately, “out of luck”.  Make sure that you file in a timely manner; make sure that you do not take comfort in being on OWCP rolls.  Don’t forget —  Postal or Federal Disability Retirement is an annuity that you can rely upon as a “base income” for your financial security.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The First Denial

One should not be overly panicked when the Office of Personnel Management denies a disability retirement application at the initial stage of the process.  Certainly, the denial needs to be taken seriously; the basis for the denial (which is often couched in confusing terms, based upon conflicting — almost contradictory — assertions and claims) must be identified and addressed; additional medical documentation may be needed; the proper legal authorities must be cited.

To put it bluntly:  while it is almost always a good idea to prepare, present, and file a Federal Disability Retirement application with the assistance, guidance and counsel of an attorney, it is essential that an OPM disability retirement denial be rebutted by an attorney who is familiar with the process, the laws, and the compelling arguments necessary in answering the reasons as stated in the “Discussion” section of OPM’s denial letter.

To panic is merely to waste time; to prepare is the wise course; to map out a cogent plan on how to win at the Reconsideration Stage — and, if necessary, the next stage of appeal, the Merit Systems Protection Board — is the wisest approach.  As Easter is a time of renewal, and Spring is now upon us, during the next few weeks, I will be “going back to basics” and reviewing  the process, the law, and the methodology of effectively applying to obtain Federal Disability Retirement benefits for FERS & CSRS employees.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Process & the Office of Personnel Management

The “British Rule” is that “good manners will always get you through any and every form of trouble.”  The process at the Office of Personnel Management is a long and arduous one.  When the disability retirement packet finally arrives at Boyers, PA, it will often sit for approximately thirty (30) days, before it is finally assigned a CSA number (for CSRS employees, it will begin with the number “4”; for FERS employees, it will begin with the number “8”).

The Applicant will receive a form letter from OPM in Boyers, PA, informing you that you have been assigned a CSA number, and that it has been forwarded to the OPM office in Washington, D.C.  This is when patience and good manners must come to the fore.

Of course, there is nothing wrong with calling OPM and inquiring about the status of your case.  However, always remember to be courteous; inquire as to the time-frame that the adjudicating disability specialist is expecting; and ask if it would be okay to call periodically, and to let him/her know that if any further documentation is needed, to give you a call — or, if you are represented, to call your attorney.  Whatever you do, do not get angry, and keep it professional — and courteous.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Quality versus Quantity

While most Federal Disability Retirement applicants whom I represent, and have represented, retain me at the initial stage of the application, a good many of my clients come to me at the Second (Reconsideration) and Third (Merit Systems Protection Board) Stages of the process.  I find that the vast majority of the individuals who attempted to put his or her disability retirement packet together, and got it denied at the first level, attempted to simply overpower the Office of Personnel Management with a voluminous compendium of medical records.

Wrong move.  Always place quality over quantity.

Streamlining a case is often the key to winning a disability retirement case.  This is just as true for cases involving Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, etc.  Because such medical conditions are often thought of as “not quite” legitimate conditions, applicants often make the mistake of thinking that by overloading the Office of Personnel Management with a thick, unwieldy file of medical records, that the sheer weight of the records will convince OPM that it is a “legitimate” case.

Wrong move.  Don’t be defensive.

Such conditions as Fibromyalgia, Chronic Fatigue, Multiple Chemical Sensitivity, Bi-polar Disorder, panic attacks, Generalized Anxiety Disorder — they are all legitimate basis for disability retirement.  Such medical conditions need not be apologized for.  Such conditions need not be “defensively” or “apologetically” submitted.  They are legitimate conditions to file; they just need to be submitted in the proper manner — by having a strong, streamlined, and cohesive medical narrative, properly prepared by the doctor, under the guidance of a Federal Disability Retirement attorney.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Christmas Season

Christmas is upcoming. The Office of Personnel Management, along with many other Federal Agencies, is beginning to “shut down” for the Holiday Season. OPM will be making many decisions concerning pending disability retirement applications. For those who receive a denial, obviously a negative decision coming during the Holidays is unwelcoming news; for those who receive an approval, the reaction is normally that it is great news and a needed Christmas present. But a negative decision — a denial from OPM — needs to be put into its proper perspective. Yes, it is an unfortunate bit of news coming at a bad time; but those who file for disability retirement benefits, must always look upon the process as one involving 4 steps: The initial application step; if denied, the Reconsideration step; if denied a second time, an appeal to the Merit Systems Protection Board; if denied by the Administrative Judge at the MSPB, an appeal to the full Board via a Petition for Review (PFR) — and even a fifth step, to the Federal Circuit Court. Remember, Disability Retirement is a “process”; the fact that it coincides with the Holiday Season does not change the long process which it involves.

Sincerely,

Robert R. McGill, Esquire