Tag Archives: what to do in the OPM Reconsideration Stage

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

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 Filing II

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People often come to me at the 2nd (Reconsideration) Stage, or the 3rd (Merit Systems Protection Board) Stage, and ask that I correct the mistakes made in the initial filing. Most mistakes can be corrected. Of course, it would have been better if the Applicant had done it properly the first time, for once the Office of Personnel Management views something which should not have been submitted, it cannot be easily retracted — only further explained.

There are, moreover, certain mistakes which cannot be “explained away” — such as deliberate omissions or deceptions. Thus, if the Office of Personnel Management gets the idea that there is an element of deceptiveness in a disability retirement application — either through omission or deliberate avoidance of an issue — then it becomes a difficult case to win. Honesty is always the best policy, and no Disability Retirement applicant should ever engage in any act of covering up any information. This is conceptually different from emphasizing the elements in a disability retirement application which favor an approval, as opposed to de-emphasizing those elements which tend to obscure the primary elements of an application. Such artful emphasis/de-emphasis should always be a part of every disability retirement application, coordinating the Applicant’s Statement of Disability with supporting medical documentation, to convey a consistent “whole” to the Office of Personnel Management.

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

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

FERS & CSRS disability retirement: Reconsideration Stage

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Sometimes, restraint is the better part of a response, as opposed to immediately responding. If an applicant’s disability retirement is denied at the initial stage of the process, an individual has thirty (30) days within which to file a Request for Reconsideration.

Upon filing such a request, however, the requestor then only has thirty (30) days to submit additional medical documentation to support the reconsideration request. Thus, take the following scenario: A person receives a denial on day 1; he files a Request for Reconsideration on day 2; he has until day 32 to file supporting medical documentation. If, on the other hand, the requestor had waited until day 25 to request reconsideration (while, in the meantime, on Day 2, he had written to the doctor for additional input/response/records, etc.), then the individual essentially has 45 days to make his case, as opposed to 32 days.

When dealing with doctors, it is often a pragmatic methodology to do it this way, because doctors rarely respond within 30 days. Thus, it is wiser to refrain from responding immediately; it is sometimes difficult to show restraint, because one’s natural impulse is to quickly file a request for reconsideration. For pragmatic reasons, it is almost always better to wait.

Sincerely,

Robert R. McGill, Esquire