FERS & CSRS Disability Retirement: Reconsideration Stage

Alas, a batch of decisions has obviously been sent out to many disability retirement applicants in the last couple of weeks, because I have gotten many calls from those who attempted to try and obtain disability retirement benefits without legal representation.  In reviewing the denial decision from the Office of Personnel Management, many who have called have observed some rather amusing things, such as:  “It seems like most of the decision is just boilerplate language”; “There were so many typos and grammatical errors in the decision”; “The OPM specialist referred to a doctor whom I never treated with”; “The decision said that I suffered from medical condition X, which I never claimed!”   “To err is human…” is a true enough adage; but to point out the mistakes of an OPM decision for the sake of pointing out the mistakes, is a pointless exercise.

Do not fret; yes, much of the language of a decision is indeed boilerplate; OPM representatives are human, and do indeed make mistakes, and insert names of doctors and medical conditions which are not part of an applicant’s narrative; and other mistakes as well.  But don’t overlook the obvious by fuming about such mistakes:  if your disability application was denied, you need to take the decision seriously, identify the substantive issues which were the primary basis for the denial; ignore the tangential errors made; then proceed to address the concerns brought to light by the Office of Personnel Management.  Time is of the essence, and those 30 days to file for reconsideration, and the additional 30 days given to obtain further medical documentation, come and go quickly.  Don’t fume about irrelevant details; focus upon strategizing a substantive approach to getting your disability retirement application reconsidered, and approved.

Sincerely,

Robert R. McGill, Esquire

First Parable: The Lady, the Girl and the Stranger

Once upon a time, there was a child with her mother, walking along a dirt road.  It had just rained, and the mist in the air brushed delicately upon the mother and daughter as they trekked through the countryside.  Their journey passed by some mud puddles freshly created by the rain.  As they walked, they came upon a stranger standing by the side of the road, on the adjacent grassy knoll.  The mother and daughter cast their eyes downward; the stranger smiled, revealing a cavernous vacuity for his front teeth.  He stared intently at the mother and daughter, both of whom could feel the piercing look upon them from the uninvited stranger.

Suddenly, without warning, the stranger rushed to the young girl, scooped her up into his arms, and carried her off of the dirt road onto the grassy area, where he just as swiftly, but gently, placed her upon the wet grass.  Too startled to cry, the little girl was lying prone, staring straight up at the bright blue sky.  She remained quiet, too frightened to move, too paralyzed to scream.  The mother, too, had been overtaken with such surprise at the suddenness of the short-distance kidnapping, that it was not until her daughter had been gently placed upon the grass that she let out a shriek of fear, anger, and tremulous indignation with such force of relief, that it caused the stranger to stumble backward, almost tripping over the little girl.  In the course of profane invectives spewing ferociously from the mother’s mouth, the stranger declared, “But madam, I saved your child’s life!  She could have tripped and fallen face flat into one of the muddle puddles, and drowned!  You should thank me for saving her life!”

FERS & CSRS Disability Retirement: When to Get an Attorney

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

FERS & CSRS Disability Retirement: Failing to Follow “Reasonable Treatment”

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