CSRS & FERS Disability Retirement: OPM and a Delicate Balance

The Office of Personnel Management, as a Federal Agency, always maintains a “public face” of stating that they welcome inquiries and telephone calls to check on the status of a pending Disability Retirement application.  Yet, we all know that Agencies, Departments and the personnel and offices which comprise all Federal entities, are made up of “people”, and people are complex bundles made up of different and differing personalities.

There is a fine and delicate balance to be maintained between an “inquiry” and a “bugging”, and further, between an acceptable level of “bugging” and one which crosses the line into annoyance.  It is good to recognize and know when and if the lines are crossed.  A power struggle is a fine thing to get into, where there are two camps of equal power.  Where there is an imbalance of power, however, it is often unwise to insist upon the tug-and-pull of such a struggle.

A word to the wise:  in dealing with any Federal Agency, be it the Office of Personnel Management or a Supervisor at a given Agency X, maintain a voice and tone of professionalism; the person on the other end of the telephone, no matter how friendly, is not your next-of-kin; be courteous, always, even if you want to insist upon something.

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 Responsibility of the Office of Personnel Management

Perhaps it is an anomaly to even speak about the issue of “the responsibility” of the Office of Personnel Management — at least, from the general consensus of experiences as told by countless individuals who have filed for disability retirement benefits from the Office of Personnel Management, especially in recent years, one might conclude that OPM is slow to respond, or often refuses to respond at all.  However, to be fair, OPM — as with all other Federal Agencies — is made up of individuals; and the “good” or “bad” of an Agency is entirely dependent upon such individuals.  Most of the disability retirement specialists at OPM are, in my opinion, of the “good” sort.  Without naming names, there are a few of the “bad” sort.  Of course, that says very little, because such a generalized statement could be true of all Federal Agencies.  Moreover, OPM is presently short-staffed, overworked, and way behind on the processing of disability retirement claims.  What used to be a 60-day wait at the initial application stage is taking 90 – 120 days; and at the Reconsideration (2nd) Stage, what used to take 90 days is now taking 120 – 150 days, in many cases.   More than the “time” it takes, however, just remember that the primary responsibility of OPM is to take a careful and serious look at your disability retirement application/packet.  Also, remember that those disability retirement packets which are streamlined, logically constructed, and coherently argued, are the ones which will likely be quickly processed.  Don’t just strap a volume of medical records onto an application and hope for approval; in this day and age, it might be a wise investment to hire an attorney to “streamline” your packet.

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

OPM Disability Retirement and the Lawless Supervisor

Every now and then (or perhaps more often than we like to think) a Supervisor will fill out the SF 3112B (Supervisor’s Statement) with such venom and innuendo and half-truths, as to make the disability retirement applicant out to be John Gotti’s half-brother and reincarnate of the conceptual paradigm of the greatest incompetent the Federal Government has ever seen (next to the Supervisor himself, of course). Or, it will state that the applicant has been “under investigation”, or that he/she has “mislead” the Agency, or other such half-truth, unsubstantiated allegation.

The problem in addressing such a Supervisor’s Statement with the Office of Personnel Management (if, in fact, one has the opportunity to address the issue before it gets to OPM or, as is more often the case, if the disability retirement application is denied, and the Supervisor’s Statement is referenced in the initial decision of denial), is the following: If you address it too forcefully, or emphasize it, then you are in danger of focusing the “fight” on the truth or falsity of what the Supervisor has said. In other words, you have essentially allowed the Supervisor to win the fight by shifting your focus upon the venom of the Supervisor.

It is more likely the wiser course of action to grant minimal attention to the Supervisor’s Statement; give it the due response it deserves, addressing the falsity of the statement, and how it is entirely unsubstantiated; and, sometimes, express outrage that OPM would have even considered such scandalous charges when it has been unverified; then focus most of the attention upon the validity and force of the Medical Narrative Report that accompanies the disability retirement application.

For, after all, always remember that this is a “Medical Disability Retirement Application” — with the emphasis upon “medical”, and not “Supervisor”.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Proper Response to the Agency

It is often difficult to inform an Agency of one’s decision to file for disability retirement. On the one hand, it is often a place where a Federal Employee has spent many years working for; with multiple years of interaction, both good and bad, it is a place which has grown to play a prominent role in the employee’s daily life, with necessary interpersonal infusions of personalities, playing such an influence as important as one’s personal family life — and, because a person may spend 8 – 10 hours a day, week after week, month after month, like life in a family, it has come to embrace a place of primary importance in one’s life.

As such, to inform such a place of one’s decision to file for disability retirement is, in effect, to inform them of one’s separation from that primary location of importance.  Such separation can be as psychologically devastating as a “divorce” which, in many respects, it is similar to.  That is often why the role of an attorney can be important.  An attorney can be a “middle-man”, an arbiter to soften the strain of such a separation from a federal employee from his or her “family”.

Remember, this is an administrative process; it need not be an adversarial process.  An attorney experienced in disability retirement law should know the process, and act to soften the separation which has been long in coming, and work to garner a sense of “teamwork” between Agency and employee, to attain as amicable a separation as possible.

Sincerely,

Robert R. McGill,Esquire

OPM Disability Retirement: Future Perspectives

People often act without forecasting prospective issues. In filing for disability retirement, it is important to take into account the emphasis and basis upon which one files for Federal Disability Retirement, because when an approval is given by the Office of Personnel Management, OPM identifies the specific medical disability upon which they granted the approval.

As such, it is important for the applicant to base the application upon the medical condition/disability, in the sequence of importance, the most serious to the least serious.

This is important not only for purposes of winning disability retirement cases, but further, with a view to the future:  when the random Medical Questionnaire is sent to a disability retirement annuitant, if the medical condition upon which you were approved for was a minor, “least serious” medical condition, then 5 years or 10 years down the road, it may well have “resolved”, which puts you in danger of losing your disability retirement benefits.

This is why it is important to have a view to the future, and guidance and advice from an attorney is important in securing that future investment.  For, ultimately, obtaining disability retirement benefits which could potentially be the primary source of income for the next decade or two, is an investment for the future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Investment for the Future

Ultimately, whether or not this is an optimum time for an individual to file for Federal Disability Retirement under FERS or CSRS is a decision each individual must make, depending upon the specific circumstances.

From a medical standpoint, of course, most individuals have no choice because he/she must file for disability retirement.  From an economic standpoint, as private companies cut back and begin relying upon a part-time workforce without needing to pay for a worker’s health insurance benefits and other benefits, a Federal Disability Retirement Annuitant is a very attractive potential worker, indeed, because most such annuitants retain their own health insurance benefits.

Such an annuitant can go out and find a job making up to 80% of what his/her former job currently pays, and still continue to receive the disability annuity.  Further, while each individual must make a decision concerning hiring an attorney to help secure disability retirement benefits, it should always be looked upon as a long-term investment.

Disability annuitants may be chosen randomly every two years to answer a Medical Questionnaire, and it is equally important to retain the benefits, as it is to initially secure it.  These are all issues which must be considered carefully, as an investment for the future.

Sincerely,

Robert R. McGill, Esquire