FERS Disability Retirement: Applicant’s Statement of Disability

In most instances, when I am asked to represent an applicant at the Reconsideration Stage, after he or she has attempted to obtain an approval at the Initial Stage without an attorney, I find that the prevailing mistake made is the exaggerated verbosity of the statement itself. The old adage from Shakespeare, which (I know) is too often quoted (and misquoted), from Hamlet, Act 3, Scene 2, where Queen Gertrude responds by saying, “The lady doth protest too much, methinks,” is indeed appropriate and applicable to this issue.

While the applicant’s statement of disability must be detailed, complete, and accurate, it must not be “overstated”. It should reflect the factual and medical integrity of the medical opinions and findings as delineated in the medical records, documents and notes; it should never exceed the medical evidence in assertions, claims or scope. Overzealous self-advocacy is often the problem in cases of disability retirement where the disabled individual represents him or herself. To this, of course, another common adage is applicable: “A person representing himself in court has a fool for a client.”

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: OPM May Say So, But… (Part 1)

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.”

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,

Robert R. McGill, Esquire

 

See also: OPM May Say So, But… (Part 2)

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

OPM Disability Retirement: Long, Longer & Longest View

I have often spoken of the need to take the “long-term” view in filing for Federal Disability Retirement benefits under FERS & CSRS — both in terms of having patience for the inherently long process in terms of time, as well as in terms of preparing a case for not just the First Stage of the process, but further, for the second Reconsideration Stage, as well as for an Appeal to the Merit Systems Protection Board.

This “long-term” view is meant to prepare a potential applicant for what it means to file for Federal Disability Retirement benefits; to not be overly concerned if you are denied at the first, or even the second stage of the process; and to be prepared financially to weather the “long haul”.  In short, it is meant to prepare the potential applicant for the long, and longer, view of filing for Federal Disability Retirement benefits.

It is also necessary, however, to prepare one’s self for the “longest” view — that of maintaining and keeping safe the disability retirement benefits once it is approved — by preparing to be randomly selected every two years or so with a periodic “review” with a Medical Questionnaire.  The Medical Questionnaire is an innocuous looking form, asking for an “update”, and giving you 90 days to respond.

Be cautious.  Be aware.  Take it seriously.

Don’t wait for the 89th day to begin responding to it.  None of my clients who have gotten his or her Federal Disability Retirement benefits has ever lost it; people who have gotten Federal Disability Retirement benefits on their own and have later lost the benefit, have come to me to regain it; I have been successful in recovering the benefit, in every case.  However, it is not always easy — if only because the disability annuitant initially thought that it was an “easy-looking” form.

Preparation for the “longest view” begins not upon receipt of the Medical Questionnaire; it begins at the very, very beginning — when one first decides to file for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement Processing Time

Yes, filing for, and obtaining, Federal Disability Retirement under FERS or CSRS is a long, arduous, bureaucratic process. It can take 6 – 8, sometimes 10 months from the beginning to the approval of the application at the First Stage.

Then, even after it is approved, it can take another 60 days before even the initial, interim payment is received.  Further, if it is denied at the First Stage, the Reconsideration Stage can take an additional 90 – 120 days.

And of course if it is denied at the Reconsideration Stage, the appeal to the Merit Systems Protection Board can take 120 days or more (with temporary case-suspensions and waiting for the Judge’s decision).

Beyond that, any further appeals can take many more months.  All of this “waiting” and admonishment of “being patient”, with little or no income, and the anxiety of one’s financial future.

There is no argument to be made: patience is necessary for the entire process. I, as an attorney, cannot promise that the “process” will be any smoother or shorter; hopefully, however, I can provide a level of expertise during the entire process, which can lessen some of the anxiety during the long waiting period. As I often say: If patience is a virtue, then Federal and Postal Workers going through the Disability Retirement process must be the most virtuous men and women of the world.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Attorney

I often get calls from people who have filed for Federal Disability Retirement benefits, from people who are represented by an Attorney but who, for one reason or another, are not satisfied with the work that the attorney has performed.  It is not, in my opinion, proper for an attorney to criticize or judge the work of another attorney, because each attorney has his or her particular methodology in the practice of law.  The fact that another attorney’s methodology of practicing a specific area of law (in this case, Federal disability retirement law) may differ from mine is not a basis for me to criticize another attorney.  The mere fact that a disability retirement application, prepared and submitted by another attorney, is denied by the Office of Personnel Management, is not a basis for concluding that the application packet was prepared in less than a professional manner.  Indeed, if that were the case, I would be subject to the same type of criticism each time one of my client’s disability retirement application was denied at any given stage of the process.  Further, and more to the point, it is a waste of time to criticize the past; what another attorney did or failed to do is besides the point.  The focus needs to be:  What is necessary to move forward, compile additional supporting documentation, and help get the disability retirement packet approved at the next stage of the process.  As to whether or not an individual should switch attorneys mid-stream, that is not for me to say; as with everything in life, such determinations must be made based upon consideration of all of the facts and circumstances of the case, and the client must do what is in the best interest of his or her future.
Sincerely,
Robert R. McGill, Esquire

I often get calls from people who have filed for Federal Disability Retirement benefits, from people who are represented by an Attorney but who, for one reason or another, are not satisfied with the work that the attorney has performed.  It is not, in my opinion, proper for an attorney to criticize or judge the work of another attorney, because each attorney has his or her particular methodology in the practice of law.  The fact that another attorney’s methodology of practicing a specific area of law (in this case, Federal disability retirement law) may differ from mine is not a basis for me to criticize another attorney.  The mere fact that a disability retirement application, prepared and submitted by another attorney, is denied by the Office of Personnel Management, is not a basis for concluding that the application packet was prepared in less than a professional manner.  Indeed, if that were the case, I would be subject to the same type of criticism each time one of my client’s disability retirement application was denied at any given stage of the process.  Further, and more to the point, it is a waste of time to criticize the past; what another attorney did or failed to do is besides the point.  The focus needs to be:  What is necessary to move forward, compile additional supporting documentation, and help get the disability retirement packet approved at the next stage of the process.  As to whether or not an individual should switch attorneys mid-stream, that is not for me to say; as with everything in life, such determinations must be made based upon consideration of all of the facts and circumstances of the case, and the client must do what is in the best interest of his or her future.

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