Tag Archives: OPM’s methodology

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: 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

FERS Disability Retirement: Medical Documentation

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As I often tell my clients in preparing a Federal Disability Retirement application:  The “lynchpin of the application is the medical report”.  Thus, it is important to speak to the doctor about the legal requirements of a medical narrative report.  Doctors, by their very nature, hate to write reports; they are doctors, and doctors perform medical duties; writing a report is an “administrative” duty, and further, writing a medical report for a FERS Disability Retirement application is a “legal administrative” duty — the farthest thing from what a doctor would like to do.

Additionally, many potential applicants don’t understand that for certain medical conditions — Fibromyalgia, Chronic Fatigue Syndrome, and Multiple Chemical/Environmental Sensitivity cases, and “contact Dermatitis” cases, as well as other related conditions — there are many “do’s and don’t’s” with respect to the substance and content of the medical reports.

The Office of Personnel Management looks for certain key phrases which doctors will often write about in describing certain medical conditions, and it is important to caution the doctors about certain key elements.  It is not that the doctors should not describe the symptoms in a certain manner; rather, once the doctor understands what the legal requirements are, a treating doctor will more fully understand what needs to be said in order to meet that legal requirement.

In other words, doctors will often use “standard medical-ese” in describing symptoms; a fuller explanation is more often needed in order to meet the legal requirements of being eligible for disability retirement.  That is where an attorney’s assistance is often crucial.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

 

CSRS & FERS Disability Retirements: The Office of Personnel Management

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I once heard a pastor make a rather unremarkable statement, but profound nevertheless in its simplicity and truth: “Where there are people, there are problems.” To assume that an Agency will make a proper, objective and legally sufficient decision all the time, most of the time, or even more often than not, is probably asking too much. The Office of Personnel Management, as with any Agency, is an entity — a large bureaucracy — made up of “people”. Yes, there are laws governing disability retirement; yes, there are rules, regulations and “criteria” which form the foundational basis for the “decision-making” part of evaluating each disability retirement case; but more profoundly, there are “people” who review, interpret, and apply those rules, regulations, and legal criteria in determining the final outcome: approval or disapproval of a claim.

That is why it is important in “how” a case is presented, as much as “what” it is that is being presented. With people, there are personalities; with personalities, there are variances in how any given OPM person reviews a case and makes a decision, from one to another. Where an attorney can be most helpful, is to “elevate” a case out of being merely one case among many, to making a presentation of a case on three fundamental levels: (1) the seriousness of the medical condition, (2) the legal sufficiency of the disability retirement application, and (3) persuasion by argumentation that it would be a mistake — a misapplication of the legal criteria — to disapprove a disability retirement application. All in all, this comes down to one profound issue: Where there are people, there are problems; and where there are problems, it is often a good idea to make the best presentation possible, at the outset of a disability retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Future Perspectives

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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 FERS Medical Retirement 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
Federal Disability Retirement Attorney

 

Federal Disability Retirement & the Reconsideration Process

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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: SSA Approval, Part III

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What if an SSA decision letter is not immediately forthcoming, or does not address the same medical conditions as that applied for in one’s disability retirement application? In such a circumstance, the best argument that can be put forth is to show the Office of Personnel Management that the application submitted to the Social Security Administration is essentially identical with the application for Federal Disability Retirement benefits submitted with OPM; then, to make the argument by analogy that where two applications are essentially identical, and where the higher standard of eligibility required (“total disability” — per SSA) has resulted in an approval, then the law must mandate that a lower standard of eligibility required (disability from being able to perform one or more of the essential elements of one’s particular job — FERS & CSRS) be by analogy and by logical consistency, result in an approval.

In submitting this argument, it is often helpful to submit a copy of the application/questionnaire filled out for SSA, and point out the identical nature of the medical conditions claimed, along with proof of approval by SSA.  Finally, it is important to refer to particular case-law citations to reinforce such arguments — but, alas, as to this latter point, it is best to obtain the services of an attorney who is experienced in Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part II

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In order for an SSA approval to have an impact upon a Federal disability retirement application, the Social Security Administration’s decision letter granting benefits must provide a detailed explanation as to the basis for the approval, delineating the medical basis, the medical conditions upon which the decision was made, etc.  Thereafter, the applicant can submit the decision letter, but this is where it is important to have an attorney provide the proper legal & foundational argument — to provide the contextual applicability.

The legal basis, to start with, is found in Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), in which the Federal Circuit Court found that in making a determination of eligibility for disability retirement, the Board (and thus, by analogy, OPM) must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability.  This is when an attorney’s tools of “argument by analogy” and pointing out the significant contextual language in an SSA decision letter comes in handy.  Next:  What if an SSA decision letter is not immediately forthcoming, or does not address the same medical conditions as that applied for in one’s disability retirement application?

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Failing to follow “Reasonable Treatment”

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In fighting to prove one’s eligibility for Federal Disability Retirement benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor.

Such an argument can prove to be fatal to an applicant’s case, but it is good to know the parameters of what it means to “fail to follow” reasonable medical treatment.  For instance, non-compliance with a medication regimen can be fatal to a case.  Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment.

On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an “estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.”

These are two light-posts on the spectrum of what is deemed “reasonable treatment”.  Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor.  Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess.  What falls in-between these two extremes should always be with the guidance of “reasonableness”, in close consultation with your treating doctor.

Sincerely,

Robert R. McGill, Esquire

 

FERS Disability Retirement: Symptoms versus Diagnosis

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If FERS Disability Retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of a disability retirement application would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level.  For, if the criteria were that ‘cut and dry’, there would be little for OPM and the applicant & the applicant’s lawyer to argue over.

However, it rarely is that ‘cut and dry’ — because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one’s job.

That is why descriptive terms are important in disability retirement law. It is not so important ‘what it is’, as opposed to ‘how it is characterized’.  From this perspective, it is important for a FERS Disability Retirement Attorney to be more of a poet than to be cold and analytical — although, the best approach would be to have a little bit of both.

Remember to always know the context — the applicant will not be standing in front of an OPM representative showing how terrible the applicant’s medical condition is; there will be no visual presentation; everything is based upon a narrative — the applicant’s statement of disability, the medical documentation, the legal memorandum of the attorney, etc.  Thus, it is all-important for the Federal Disability Attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely,

Robert R. McGill, Esquire