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: 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: OPM’s Specific Denial I

On those occasions when an OPM denial specifically (and correctly) identifies and asserts deficiencies in a disability retirement application, it is important to have a targeted response in addressing the denial.  The reason for such a targeted approach is for two primary reasons:  (1)  One should always address the alleged specific basis of OPM’s denial of a Federal disability retirement application, and (2) By specifically addressing and answering OPM’s specific basis for the denial, if the Office of Personnel Management denies the application a second time, and it is therefore appealed to the Merit Systems Protection Board, it is important to view the entire case of OPM as “unreasonable”.

In other words, it is important at the outset to “prejudice” the Administrative Judge as to the unreasonableness of the Office of Personnel Management. And there is absolutely nothing wrong with this — because the “prejudice” which the Judge may perceive is in fact based upon the truth of the matter:  OPM is indeed being unreasonable, and it is important for the Administrative Judge to see such unreasonableness.  It is important to be able to say to the Judge, Your Honor, do you see how we answered the basis of the denial — and yet, even after specifically addressing the basis of the denial, OPM still denied it?  What else can we do?  It is always important to prepare each step of the case not only for the “present” case, but also for the potential “next” case.

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 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

FERS & CSRS Disability Retirement: Reconsideration Stage

Alas, a batch of decisions has obviously been sent out to many disability retirement applicants in the last couple of weeks, because I have gotten many calls from those who attempted to try and obtain disability retirement benefits without legal representation.  In reviewing the denial decision from the Office of Personnel Management, many who have called have observed some rather amusing things, such as:  “It seems like most of the decision is just boilerplate language”; “There were so many typos and grammatical errors in the decision”; “The OPM specialist referred to a doctor whom I never treated with”; “The decision said that I suffered from medical condition X, which I never claimed!”   “To err is human…” is a true enough adage; but to point out the mistakes of an OPM decision for the sake of pointing out the mistakes, is a pointless exercise.

Do not fret; yes, much of the language of a decision is indeed boilerplate; OPM representatives are human, and do indeed make mistakes, and insert names of doctors and medical conditions which are not part of an applicant’s narrative; and other mistakes as well.  But don’t overlook the obvious by fuming about such mistakes:  if your disability application was denied, you need to take the decision seriously, identify the substantive issues which were the primary basis for the denial; ignore the tangential errors made; then proceed to address the concerns brought to light by the Office of Personnel Management.  Time is of the essence, and those 30 days to file for reconsideration, and the additional 30 days given to obtain further medical documentation, come and go quickly.  Don’t fume about irrelevant details; focus upon strategizing a substantive approach to getting your disability retirement application reconsidered, and approved.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirements: Groundless Denials of FERS/CSRS Disability Retirement Applications

One would assume that when a disability retirement application has been reviewed by someone at the Office of Personnel Management, and a decision of denial has been rendered, that such a decision will — at a bare minimum — be based upon a legally sufficient ground. In other words, that the legal criteria asserted in the decision will be correctly delineated.

Unfortunately, that is too often not the case. In fact, many of the legal claims asserted by the Office of Personnel Management have no justification in law, and are exaggerated at best, and a mis-statement of the applicable laws, at worst. But for disability retirement applicants who are unrepresented, the individual may well read the decision, believe what the decision states, and become convinced that the burden is too onerous to overcome, and fail to request reconsideration in the case, discouraged that he or she will never be able to meet the legal burden imposed in the initial denial.

Thus, for instance, when an OPM denial letter states that there was “no evidence showing hallucinations, delusions or other symptoms of psychosis,” and therefore the disability retirement is denied, one might conclude: “Since I don’t have those conditions, I must not be qualified for disability retirement.” Wrong! Or, when OPM says: “There was no evidence of hospitalization or the need for such treatment,” one might become completely discouraged and say, “Oh, disability retirement requires that my medical condition is such that it requires hospitalization in order to qualify, and therefore I cannot qualify“. Wrong! Such overstated and exaggerated claims by the Office of Personnel Management are commonplace, and unnecessarily place a burden upon disability retirement applicants through mis-statements of the law. Never allow an OPM mis-statement of the law to persuade you to abandon your case; instead, seek competent legal counsel to explain what the law of disability retirement really is, and proceed from here.

Sincerely,

Robert R. McGill, Esquire