OPM Disability Retirement: Discretion in a Response (Part 1)

When a Federal Disability Retirement applicant under FERS or CSRS receives an unfavorable response from the Office of Personnel Management (translated:  an initial Denial), you have the right (which must be asserted in order to move forward in the future, i.e., to the MSPB and beyond) to file a Request for Reconsideration.  If you receive a second denial, then the only response required (and which should and must be asserted) is an appeal to the Merit Systems Protection Board.  A response to the initial denial, however, should include a reply to the (often) detailed “discussion” section of the denial letter.

Normally, when I file a response (in addition to obtaining additional medical documentation from the doctors, and any other substantiating documentation which may be relevant), I normally write up a 5 – 7 page responsive legal memorandum rebutting the denial letter.  Now, this is where “discretion” is necessary.  Upon an initial reading of a denial letter, one’s first response is normally not that which one should act upon, because it is often a reaction of, “What???”   Discretion is a virtue to follow; there must be a proper balance between responding to every single criticism from OPM (not a good idea), to ignoring everything in the denial letter (also not a good idea), to choosing two or three of the more substantive issues brought up and addressing those issues.  How to address them, with what tone, what manner & style, etc., is what an attorney is for.

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

Part III: Common mistakes in filing for FERS/CSRS disability retirement

Words are peculiar animals; they are meant to convey meanings through stringing together, creating conceptual models, images, descriptive thoughts. Thus, one would think that the greater quantity of words would lead to a greater level of thoughts conveyed, images created, etc. However, what often happens (a commond mistake found in unrepresented applicants who file for disability retirement under FERS & CSRS) is that there is a ‘fatigue factor’ by the reader: in this case, the reviewing person at the Office of Personnel Management. People often either overstate his or her medical disability, or tend to think that pages and pages of a stream-of-consciousness narrative about one’s medical conditions will persuade the reviewer of the seriousness of the medical condition. Neither are necessary. Let the medical condition itself speak to the seriousness. The applicant does not need to overstate it; and a voluminous narrative only points out and emphasizes a suspicion that there is some underlying reason as to why you feel the need to explain yourself so much. Use of words is a ‘balancing act’ — using the right words; explaining the right amount; creating the right string of thoughts and images. An effective disability retirement application must find the right balance of all of these elements.

Sincerely,

Robert R. McGill, Esquire

Part II: Common mistakes in filing for FERS/CSRS disability retirement

Always emphasize quality over quantity of medical records & reports. A common mistake often made by unrepresented individuals is that he or she will ship off to the Office of Personnel Management a large packet of medical records, bills, appointment sheets, raw blood test results, etc.

A potential applicant is always wise to try and look at it from OPM’s viewpoint: if you were a reviewer at OPM, which disability retirement application that is assigned to you would you look at on a Monday morning — the one that is 6-inches thick, or the one that is 1/2 inch thick?

Further, untranslated raw test results rarely effectuate a positive response. Raw data that merely conveys numbers, unless interpreted by a physician as to the medical significance of such raw data, will not impress anyone at the Office of Personnel Management. It is the job of an attorney to use the tools of an attorney: effective and descriptive words, and to help the applicant to find the proper descriptive words to convey the serious medical conditions that he or she suffers from.

Sincerely,

Robert R. McGill, Esquire