Tag Archives: examining the basis for the denial

CSRS & FERS Disability Retirement: OPM’s Rationale

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Too much time is often spent on the “rationale” or “reasons” for a denial from the Office of Personnel Management, under the “Discussion” Section of a denial letter.  By “time spent”, however, is not meant that one should not selectively rebut, refute and address some of the reasons delineated in an OPM denial letter; rather, what too many people do is to complicate matters by “reading into” the reasons given for the denial.

One of the jobs of an attorney who specializes in Federal Disability Retirement law under FERS & CSRS is to prepare an application for Federal Disability Retirement benefits, rebut a denial, or file an appeal to the Merit Systems Protection Board, based upon one’s experience, wisdom and sense of that which OPM is looking for.

This is accomplished by having learned from a myriad of sources:  from seeing the types of prepared disability retirement packets which have been successful in the past; from learning from past legal arguments and rebuttal arguments as to which have been most persuasive for OPM; and from having conducted multiple Hearings before the Merit Systems Protection Board and learning exactly what the Administrative Law Judge has been most persuaded and convinced by.

Further, having read countless denial letters by people who have attempted to file for Federal Disability Retirement benefits at the first stage without an attorney, it is important to focus upon the relevant issues which OPM is seeking, and to disregard those issues which are peripheral or irrelevant.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsideration Decisions

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Types of reconsideration decisions denying an applicant his or her Federal Disability Retirement benefits under FERS or CSRS can and do span the entire spectrum, depending upon the OPM representative who writes up the decision:  from half a page (barely giving a passing, respectful review to a packet which took multiple hours to put together) to over 3 pages long (in the “Discussion Section”); from merely listing general principles of law and generalized, template-like denials to apparent detailed (but very selective) references to various medical reports submitted by the applicant as part of the disability retirement packet — they all boil down to the same thing:  a denial at the initial application stage.

Often, an initial reaction to the denial encompasses a myriad of responses, ranging from incredulity, to resignation, to anger, to indignation.  Set aside the emotionalism.  Further, there is often the reaction to that “one piece” of medical information which the applicant believes should have turned that “denial” into an “approval” — that “one piece” of medical note, statement, sentence, or paragraph which the OPM representative conveniently disregarded or chose not to reference.  Don’t ruminate over it.  It may well be that it was deliberately disregarded; it may even have been overlooked.  More than likely, the OPM representative was fully aware of it, but decided to selectively choose his or her basis as the more “important” and “substantive” evidence, forming the core rationale of the denial.  Don’t waste time.  More work is needed — both medical as well as legal.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Disability Retirement: Denials II

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It is, indeed, frustrating when a governmental agency makes life-impacting decisions which seem to be spurious and capricious. A review of a disability retirement application by the Office of Personnel Management is supposed to be thorough, with sound reasoning and a fair application of the law. And, in all fairness, the majority of cases appear to meet that standard. It may well be, of course, that since all approval letters of disability retirement applications are standard templates, with boilerplate language and instructions, and since most of my cases are approved at the first level, the impression left is that OPM does a good job in reviewing the cases.

When a case is disapproved, however, it is often the case that the denial is based upon factors which defy logic, which appear to have little or no rational basis, and which selectively focuses upon a narrow reading of the medical reports and records. Thus, often the OPM Representative will take a statement out of context, and declare that the doctor stated X when a full reading of the medical report shows that the doctor actually stated Y. This is unfortunate, and does not reflect the careful review, analysis, and fair rendering of a decision made by most OPM representatives, but occurs often enough to be of concern. On the bright side, however, is that there is always the ability to take it completely out of the hands of OPM, after a second denial — and allow an administrative judge to review it objectively, at the Merit Systems Protection Board. That is why the MSPB was created and exists — to have a third party, objective body review the decision-making process of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement Denials

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When your OPM Medical claim is denied by the OPM Disability Retirement Specialist

 

A received letter from the U.S. Office of Personnel Management quashes the Federal employee’s plans for the future. The deep, emotional disappointment is understandable because it prevents the employee to secure a stream of income; to have the recuperative period in which to recover from a progressively deteriorating medical condition; and generally to be able to “move on” in life.  As all rejections have a negative impact upon a person — in terms of emotional, psychological as well as practical consequences — so an OPM denial letter is seen as a rejection of a compendium of submitted proof concerning a Federal OPM Disability Retirement application.

It is not so much that the denial itself obviously represents “bad news” (that is difficult enough), but again for the OPM Disability Retirement applicant, it casts a long and foreboding shadow upon one’s financial and economic future.  For, obviously, the income from the disability annuity is being relied upon; the applicant filed for Federal disability retirement benefits under FERS or CSRS based upon the assumption that it would be approved, and the future calculation of economic and financial stability was based upon the obvious assumption of an approval.

Long-term plans are made based upon the assumption of approval.  Further, it doesn’t help that the basis for the denial, as propounded by the Office of Personnel Management, is often confusing, self-contradictory, and without a rational basis.

It is often as if the OPM Medical Retirement representative just threw in a few names, referred to some doctor’s reports, and essentially denied it with a selective, almost pre-determined view towards denying the claim.  This is unfortunate, because the Office of Personnel Management is under a mandate to make its decision based upon a careful and thorough review of the applicant’s supporting documention.

However, when an OPM Disability Retirement denial is received, one must fight against the initial feelings of defeat and dismay; work is yet to be done, and a view towards the future must always be kept at the forefront.  A time to give up is not now; it is time to fight onward, and to move forward.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Attorney

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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 Specific Denial II

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It is important to always “define”, “corner”, and “circumscribe” any denial from the Office of Personnel Management.  If you do not, then what happens at the next level is that it becomes a “de novo” process.  Now, one might argue that all disability retirement appeals to the Merit Systems Protection Board are de novo, anyway.  That is true enough — meaning, that all of the evidence is looked at “anew” and without prejudice from any previous finding by the Office of Personnel Management. 

Yet, there is the “legal” definition of de novo, and the practical effect of de novo; often, the Administrative Judge at the MSPB will, at a PreHearing Conference, turn to OPM and say, Listen, OPM, it seems that the only reason why it was initially denied was because of X, Y & Z; the applicant certainly answered X & Y in his/her reconsideration answer; is the only thing you are looking for is Z?  What this does is to narrow the issue.  Often, to save time, face, aggravation and other things, OPM will concede the narrowing of such issues, and this is true if you respond to their administrative queries by defining what they are asking for, then providing it to them, then showing how it has been provided to them, so that they are “cornered”.  Thereafter, if it gets denied and it needs to go to the MSPB, the Hearing can then proceed with a narrower, streamlined and limited number of issues to prove.  Again, the reason why it is important to define what it is that OPM is asking for, is not only for the “present” case, but in preparation for the potential “future” case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OPM’s Specific Denial I

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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

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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

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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

FERS Disability Retirement: Why is mine denied?

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There are always multiple (unverified) stories of people who have filed for Federal Disability retirement benefits under FERS, based upon what appears to be a “minor” medical condition (at least “minor” in comparison to the medical conditions which were rejected by the Office of Personnel Management per a denial letter), which was approved; yet, you filed a FERS Disability Retirement application based upon multiple major medical conditions, which was denied.

Why me?

Remember that “fairness” is not the criteria in determining the viability of a disability retirement application.

Comparisons of medical conditions with other applicants or co-workers rarely provide any fruitful insight; the point is, the “other guy” got his disability retirement application approved, and you did not.  It may be several factors beyond your control:  Your Supervisor tried to “get back at you” by declaring that all reasonable medical accommodations were provided; the OPM representative which was assigned to your case was overworked and wanted to clear some of the workload, and yours was one of them; one of your doctors made statements which came perilously close to making your case one of “situational disability”.

Whatever the reasons, you should not worry about factors beyond your control; instead you need to focus upon those factors over which you do have control:  You need to have a strategy on how you will counter the initial denial.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Employee Retirement Attorney