Tag Archives: Petition for Full Review at the MSPB

OPM Disability Retirement Processing Time

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Yes, filing for, and obtaining, Federal Disability Retirement under FERS or CSRS is a long, arduous, bureaucratic process. It can take 6 – 8, sometimes 10 months from the beginning to the approval of the application at the First Stage.

Then, even after it is approved, it can take another 60 days before even the initial, interim payment is received.  Further, if it is denied at the First Stage, the Reconsideration Stage can take an additional 90 – 120 days.

And of course if it is denied at the Reconsideration Stage, the appeal to the Merit Systems Protection Board can take 120 days or more (with temporary case-suspensions and waiting for the Judge’s decision).

Beyond that, any further appeals can take many more months.  All of this “waiting” and admonishment of “being patient”, with little or no income, and the anxiety of one’s financial future.

There is no argument to be made: patience is necessary for the entire process. I, as an attorney, cannot promise that the “process” will be any smoother or shorter; hopefully, however, I can provide a level of expertise during the entire process, which can lessen some of the anxiety during the long waiting period. As I often say: If patience is a virtue, then Federal and Postal Workers going through the Disability Retirement process must be the most virtuous men and women of the world.

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 Medical Retirement: Beyond the MSPB

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Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement: The “nexus” between the Reconsideration Stage and the Merit Systems Protection Board

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It is an accepted fact that there is a “psychological” aspect to almost everything in life, and this is no less true in the field of disability retirement law.  The “psychological” aspect is the nexus, or bridge, from the Reconsideration Stage to the Merit Systems Protection Board.  From OPM’s viewpoint, this is the last chance to make a decision on a case, before it is taken out of the hands — and therefore “control” — of the Office of Personnel Management.  Thus, OPM wants to be able to “justify” that its decision was reasonable, and legally-based and legally sufficient to withstand the scrutiny of an Administrative Judge.   From the Applicant’s viewpoint, it is a chance to show that OPM was unreasonable for not approving the case.

While it is true that all cases which come before the MSPB are heard de novo (meaning, anew, without regard to prior decisions by OPM), OPM nevertheless never wants to be viewed as ignoring the law and appearing unreasonable, and the Applicant wants OPM to appear unreasonable in the face of the medical evidence already provided.  This is the psychology behind trying to convince OPM to approve a case at the Reconsideration Stage.  Thus, at the Reconsideration Stage, it is important to cite applicable law to OPM, to corner them into a position of appearing unreasonable if the disability retirement application is denied.  On the other hand, the reasonings and underpinning of foundational bases provided in Reconsideration Decisions are often far more superior and accurate than those handed down at the Initial Stage.  In any event, always remember that there is a “psychological” aspect to everything, and it is the duty of an attorney to identify it, use it to the best advantage possible, and cite the appropriate law.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement: When it gets to the Merit Systems Protection Board

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For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When it Gets to the Merit Systems Protection Board (MSPB)

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For whatever reason, a certain percentage of cases reach the third level in the process of applying for Federal Disability Retirement benefits:  The Merit Systems Protection Board.  If an individual is unrepresented at this level, the identical problem as that which occurs in any courtroom presents itself:  an attorney representing an individual provides an appearance of “objectivity” to the administrative judge; the advocacy on behalf of a disability retirement applicant has greater credibility, the arguments made on his/her behalf are now greater efficacy and weight, merely because the person arguing (the attorney) and the person for whom the arguments are made (the disability applicant), are not one and the same.

Whether fair or not, it is important that a disability retirement applicant obtain representation at this level, because Administrative Judges are more likely to listen to the arguments made by an attorney, precisely because the Attorney does not — other than the professional reputation of winning or losing the case — have a “personal” vested interest in the case itself.  As such, the arguments of an attorney have an appearance of objectivity, and it is that weight of objectivity which may be the deciding factor as to whether the applicant will get the disability retirement annuity, or not.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: When to Get an Attorney

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As I explain to all potential clients, whether an individual should attempt to obtain Federal disability retirement benefits with or without an attorney, is an individual and personal decision, based upon a number of factors.

I place everyone on a spectrum:  on the far left side of the spectrum is a Letter Carrier who becomes paralyzed.  That person does not need me as an attorney. He/she needs to gather the medical records, fill out the forms, and submit the application.  On the far right side of the spectrum is a Supervisor who goes out on “stress leave”.  That person should almost definitely hire an attorney, because disability retirement based upon the medical condition of stress alone, is difficult to obtain. Most Federal and Postal employees fall somewhere in-between those two extremes.  Further, and obviously, I believe that I am of assistance to my clients, and (hopefully), based upon the years of feedback I have received, my clients firmly believe that my legal methodology and approach were instrumental in obtaining disability retirement benefits for them.

Two further things to consider:  First, I rarely accept cases where an individual has filed the application, gotten it rejected, filed for reconsideration, gotten it rejected, and then went to the Merit Systems Protection Board where the Judge upheld OPM’s decision to deny the application:  when an individual has gone through all three Stages, and asks me to file a Petition for Review, I will normally not take on such a case.  I will, of course, consider being hired to re-file the case (assuming that the person has not been separated from service for over a year); but I cannot take on a case for a Petition for Review and further appeal when I have not been the one instrumental throughout the first three stages of the process.  Second, many individuals come to me with barely 30 days left to file.  I take on such “emergency cases” on a case-by-case basis, depending upon my time-allowance, my schedule, etc.

The Lesson:  Each individual must make the decision as to whether or not to hire an attorney, which attorney to hire, when to hire.  From my perspective:  Federal Disability Retirement is, when all is said and done, a process to secure the financial future and stability of one’s life.  As such, hire an attorney who specializes in Federal and Postal disability retirement, and hire one early on in the process.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Petition for Full Review

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The next step beyond the Merit Systems Protection Board, of course, is a choice: You can either file an immediate appeal to the Federal Circuit Court of Appeals, or file a Petition for Review before the Merit Systems Protection Board, where the decision of the Judge at the Merit Systems Protection Board will be reviewed by a panel of 3 Administrative Judges.

Normally, I recommend taking the latter route, only because it allows for another step to win, as opposed to putting all of one’s eggs in the proverbial “one basket”. If an individual has put on a case without being represented, by going through OPM’s procedures, then putting on a case at the MSPB, I will rarely accept a case at the Petition before the Full Board level.

My reasons are essentially as follows: First, it was not “my case”. The applicable criteria to have an MSPB case reversed by filing a Petition for Full Review, is to point out an “error of law” that the Judge made. If I put on a case before an administrative judge at the MSPB, I try and put on “my case” — one that I believe in; one that I am an advocate for; one that I am passionate about, because it is a case on behalf of a client whom I represent.

That is why I win most of my cases, both at the OPM level, as well as before the MSPB. When someone else has gone through the process, it is simply not “my case”. To nitpick for an error of law that the administrative judge had made, when it was not my case, and not the case-laws that I relied upon in putting on my case, is simply something that I have little interest in doing. That is not to say that a case cannot be won at a Petition for Full Review. I have won enough of them; it is a matter of pointing out the error of law which the administrative judge made; but a passionate argument is essential to winning such a review.

Sincerely,

Robert R. McGill, Esquire

In Filing for OPM Disability Retirement, Remember the Basics

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In the opening sentence of Davis v. the Office of Personnel Management, PH-844E-06-0242-I-1, the Merit Systems Protection Board reminds us all that the “burden of proving entitlement to a retirement benefit is on the applicant…” In past federal disability articles, I have discussed a variety of issues, from important legal principles based upon Bruner v. OPM, to showing how to build the “proper bridge” in preparing a disability retirement application. In preparing a disability retirement application, however, remember to always satisfy the “basics”, because if you fail at the basic level, you will never get to the “substantive” level to argue your case. Davis is a case about a disability retirement applicant whose application was denied at the first Stage (the “initial application stage”) because she “did not present any medical evidence to support her claim.” Strike One — how can you file a medical disability retirement application without any medical evidence?

Next, Ms. Davis failed to file her “Request for Reconsideration” within the 30-day period. She filed it 5 days late. Strike Two — you won’t even be able to argue the substance of your disability retirement case if you don’t take care of the “basics” — like filing your Request for Reconsideration in a timely manner. In OPM’s denial letter, it clearly stated: “Your Request for Reconsideration must be received by OPM within 30 calendar days from the date of your initial denial letter.” Ms. Davis had no excuse.

Now, every now and then — but very, very rarely — an exception will come along. Such was the case in Goodman v. Office of Personnel Management, 100 M.S.P.R. 43 (2005), which was cited as a distinguishing case by the Board. In Goodman, multiple factors allowed the appellant to be excused for her tardiness — including, being misled by OPM verbally over the telephone; receiving the denial letter some three weeks after being postmarked (thereby leaving her with only a week to respond); and being a quadriplegic who had to rely upon others to assist her in responding. Be aware: only under the most exceptional of circumstances will being late in responding be excused. You must take care of the basics, before going on to the substance of a case.

Ms. Davis filed an appeal to the Full Board. Her appeal was, as you might guess, denied. The Board stated that in cases such as this, where Ms. Davis “fails to show that she was not notified of the deadline and was not otherwise aware of it, or that she was prevented by circumstances beyond her control from making the request within the time limit, we will not reach the issue of whether OPM was unreasonable or abused its discretion in denying her untimely request for reconsideration.” (italics added).

Strike three. Ms. Davis is out. As I have reiterated throughout this article, unless you take care of the basics, you cannot even get to the substance of your disability retirement claim. Like the parable of the mighty army which could defeat its enemy, that army could not survive to fight the battle unless it took care of a basic need — water for its troops to cross the scorching desert to meet its enemy. It failed to take care of the basics.

In life, we are all busy doing multiple things, and when a Federal or Postal Employee comes to a point in his or her life where filing for disability retirement becomes a necessity, it is often a good idea to hire an attorney — not only to ensure that the “basics” are taken care of, bur further, to make sure that you get the opportunity to argue the substance of your particular case. My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at federal.lawyer@yahoo.com, or visit my website at www.FederalDisabilityLawyer.com.

As an aside, let me point out some other “basics”:

1. Remember that you have one (1) year from the date you are separated from service to file for disability retirement. The one (1) year date does not begin when you stop working; it doesn’t begin when you get placed on LWOP; it doesn’t begin from the time you get disabled. It begins from the date you are separated from Federal Service.

2. For my clients (and those who are not my clients) whom I got disability retirement for — remember that you are allowed to get another job and make up to 80% of what your position currently pays, in addition to the disability annuity you are receiving. It is earned income that counts — not rental income, not investment income, and certainly not your disability income.

3. A teaser — I will probably address this issue in my next article — the Office of Personnel Management seems to, more recently, be scrutinizing those who are already receiving medical disability retirement benefits. For those of my clients (and those who are not my clients) who receive disability retirement, remember to take OPM’s Medical Questionnaire seriously. I have had more cases than usual where disability annuitants have had their disability income discontinued. More on this later….

 

Robert R. McGill, Esquire