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: Waiting Too Long

My approach to Federal Disability Retirement law is that there are very few, if any, mistakes made by the applicant which cannot be corrected, amended, or explained, especially where the essential ingredients of a “good” case are in existence: a supportive doctor; a position/duties which are incompatible with the type of medical conditions one suffers from, etc.

However, I receive telephone calls periodically where the individual simply has waited “too long”.  Thus, to clarify: If you’ve been denied twice by the Office of Personnel Management, and you have a Hearing before an Administrative Judge 3 days from today, then you have probably “waited too long” (although, if you can get a postponement, or suspension of the case, there may still be time).

If you’ve been denied by OPM and the Merit Systems Protection Board has already denied your case, then you have probably “waited too long”.  Or, if you have been denied by OPM and by the MSPB and by the Full Board, then you have probably “waited too long”.  I hope that I am getting the point across by overstating the case — while each individual must decided when it is the “right time” to get a lawyer to help in filing for disability retirement cases, and yes, while I take on cases at all stages of the process, the point is quite simple: It is better to have the expertise of an experienced attorney earlier, than later. In most case, that means at the very beginning of the process.

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

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