Tag Archives: OPM Reconsideration Stage

OPM Disability Retirement: The Filing II

Posted on by
Reply

People often come to me at the 2nd (Reconsideration) Stage, or the 3rd (Merit Systems Protection Board) Stage, and ask that I correct the mistakes made in the initial filing. Most mistakes can be corrected. Of course, it would have been better if the Applicant had done it properly the first time, for once the Office of Personnel Management views something which should not have been submitted, it cannot be easily retracted — only further explained.

There are, moreover, certain mistakes which cannot be “explained away” — such as deliberate omissions or deceptions. Thus, if the Office of Personnel Management gets the idea that there is an element of deceptiveness in a disability retirement application — either through omission or deliberate avoidance of an issue — then it becomes a difficult case to win. Honesty is always the best policy, and no Disability Retirement applicant should ever engage in any act of covering up any information. This is conceptually different from emphasizing the elements in a disability retirement application which favor an approval, as opposed to de-emphasizing those elements which tend to obscure the primary elements of an application. Such artful emphasis/de-emphasis should always be a part of every disability retirement application, coordinating the Applicant’s Statement of Disability with supporting medical documentation, to convey a consistent “whole” to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Generic Denial

Posted on by
Reply

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

Posted on by
Reply

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

CSRS & FERS Disability Retirement: The First Denial

Posted on by
Reply

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

Posted on by
Reply

The importance of the “process” cannot be overstated in the filing of Federal Disability Retirement benefits.

It is the “coordination” of all of the various elements involved:  the Medical Narrative Report; the proper legal citations to refer to; the relevance of which medical documents to use; streamlining the documentation; the orderly listing of the medical conditions; how the medical conditions should be described; the narrative description of the impact and nexus between the medical condition and the job description; how to deal with accommodation issues; how to preemptively minimize any adverse impact from an “unfriendly” Supervisor’s Statement.

Also, the elements of preparing for the “long haul” — the potential denial, the denial at the Reconsideration Stage, and onward to the Merit Systems Protection Board — thus, preparing the case not only for the First Stage, but for any future stages of the process; how to deal properly and intelligently with specific medical conditions which may require a different “tweaking” of the application (i.e., medical conditions such as Fibromyalgia, Chronic Fatigue Syndrome, Bipolar Disorder, panic attacks, Multiple Chemical Sensitivity cases, etc.); the “do’s and don’t’s” of describing certain medical conditions.

These are only some of the issues which must be dealt with, coordinated, and thoughtfully constructed in preparing for a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Quality versus Quantity

Posted on by
Reply

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

 

OPM Disability Retirement: The Merit Systems Protection Board

Posted on by
Reply

An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management:  at the initial application stage, then at the Reconsideration Stage.  This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement.  There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.

Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process.  Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage.  The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation.  While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing.  Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

Posted on by
1

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Further Comment on Vanieken-Ryals

Posted on by
Reply

Vanieken-Ryals v. OPM, decided by the U.S. Court of Appeals for the Federal Circuit on November 26, 2007, has an interesting statement from the deciding Judge, which can be used as “firepower” for anyone who is attempting to obtain Federal Disability Retirement benefits (note of caution:  for lay non-attorneys, be careful in how you use it in trying to convince a lay, non-attorney OPM representative):  “In addition, neither the MSPB nor OPM discussed the content of Dr. [ ] or [ ] evidence in any meaningful way, which further demonstrates that it was not properly considered.  OPM, for example, resorted to a laundry list of “objective” tests and documents that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain.”

Interpretation:  If OPM’s argument is to focus upon what is missing, they have violated their primary Agency/administrative responsibility — that of evaluating, in some “meaningful” manner, the medical evidence which was in fact submitted.  This can be used effectively for the Reconsideration Stage by diplomatically pointing out the error of OPM, and citing Vanieken-Ryals, and highlighting the relevant portions of the medical documentation previously submitted.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The “nexus” between the Reconsideration Stage and the Merit Systems Protection Board

Posted on by
Reply

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