OPM Disability Retirement: The Denial at the First Stage

Many individuals who have tried to file for Federal Disability Retirement benefits under CSRS or FERS get the disability retirement application denied at the Initial Stage of the process.  Would I rather have had that person come to me at the First Stage and have me prepare & file it?  Yes.  Are the mistakes made by the unrepresented Federal or Postal Worker irreversible?  No.  Would the disability retirement application been approved at the First Stage had it been prepared and filed by me?  Probably.  This is not to say, however, that all of my cases get passed through at the First Stage.  However, many of the mistakes which I see over and over, made by unrepresented individuals, could — and should — have been avoided. 

Further, many people who call me after getting the initial denial are surprised to hear me tell them that I don’t care what the OPM denial letter states.  While making for interesting bedside reading, the fact of the matter is that once you have read one such denial letter, you’ve essentially “read them all”.  Rarely is there anything new in an OPM denial letter.  OPM representatives use a template, and fill in dates and references to various medical reports and doctor’s records; but the conclusion of the denial letters are fairly identical:  the medical evidence is considered “insufficient” to meet the legal criteria to be eligible for disability retirement benefits.  It is the job of the attorney to go back to the doctors, get the proper medical documentation, then argue the law to the Office of Personnel Management.  The Second (Reconsideration) Stage of the process is a critical stage — for, if it is denied at this level, the next level takes it a “notch” higher — before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

OPM decisions of denial in FERS & CSRS disability retirement case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire