FERS & CSRS Disability Retirement for Federal and USPS Workers: New Faces

Old timers will often smirk cynically and observe:  Time will cure them of such a naive perspective.  Or, to paraphrase a famous line from a well-know Christmas movie, Youth is wasted on the young (hint:  the scene were Jimmy Stewart is throwing a rock at the old abandoned house).  Youth and inexperience are often accompanied by enthusiasm and a fresh perspective. Lack of knowledge is compensated — some would say “overcompensated” — by an eagerness which sees no boundaries or obstacles.

There are clearly some new hires at the U.S. Office of Personnel Management as of this date, and their unique approach in viewing and evaluating a Federal Disability Retirement application, whether under FERS or CSRS, must be contended with.

The fundamental problem with newcomers is not that they don’t know what they are doing; rather, it is often the converse — they think they do know what they are doing, and when girded by a list of criteria which is applied in an inflexible fashion, one often gets blinded by the confusion of the forest while having a myopic view of an individual tree.  The great equalizer in countering lack of knowledge, fortunately, is the law itself; and while a list of applicable criteria provided to a fresh face may well assist the OPM employee to evaluate a claim, it can never replace the necessity of knowing the law.

For anyone filing a Federal Disability Retirement application with the U.S. Office of Personnel Management, now constitutes the time to employ all of the tools which the compendium of cases decided, and statutes reinforced, accord in arguing one’s case.  Time will certainly tell, but for the present, it is advisable to dot all I’s and cross each T, carefully and with great scrutiny.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal & Postal Workers: New OPM Case Workers

In a perfect world, any administrative determination — or any judicial, quasi-judicial or official analysis and evaluation of a “case” of any nature —  should be governed by precepts and criteria which are deemed “objective” in the sense that a standard application of a determining calculus would be applied without any subjective, arbitrary elements involved.  But this is not a perfect world, and as such, there are always “subjective” elements which become part and parcel of any determination, administrative or otherwise.

In Federal Disability Retirement cases, there are OPM (an abbreviated acronym for U.S. Office of Personnel Management) Claims Representatives, or “case workers”, who have had many years of experience, and those who have just recently been hired, trained, and been “let loose” in order to apply their limited knowledge.  There is definitely a change, and quite a noticeable one, in having a case reviewed by a novice at the Office of Personnel Management, as opposed to receiving a determination by a “seasoned” OPM worker.

Issues which are peripheral and do not impact the centrality of a Federal Disability Retirement case are often focused upon and detailed with irrelevant argumentation.  But that is the nature of an “administrative process”, where there are multiple layers and levels of appeals and reviews.

Ultimately, that is why there is a “Reconsideration Stage” — to allow OPM to review the decision of the first-level personnel, and to correct any misguided decisions made at that first level.  Further, there is the Merit Systems Protection Board, where an Administrative Judge will review the decision of OPM independently.  This is a “process“, as opposed to a single filing, and it is wise to remember it as such.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: A Fair Hearing

It is a common complaint against the Office of Personnel Management that the particular Claims Representative who reviewed the file and issued a denial in a Federal Disability Retirement application failed to look at, or review, the medical evidence; that the denial letter was merely a restatement or regurgitation of a template referring to a 7-part criteria, and makes statements which could easily have been “cut and paste” from a thousand other such denials.  

Indeed, there have been times when references to a denial were clearly (and mistakenly) extracted from another file, where the names of doctors and medical documents are referred to which have no relation to the particular individual, and are clearly mixed in from another case.  

To be fair, a counter-argument to such criticism is that there is no bureaucracy, with so many cases to review and properly evaluate, and with so few personnel and staff to undertake the massive workload, that could or should “reinvent the wheel” each time a case is set to be reviewed.  Obviously, certain language that is applicable in all (or most) cases will be re-stated, and templates used where such have been standard language used in the past.  Applicable language and statements which merely reiterate the legal and statutory criteria; introductory remarks; conclusory statements — they are all part of a paradigm and template which any administrative bureaucracy may apply.  

But the criticism goes much deeper than that:  It is often the case that, clearly, the Claims Representative who wrote the denial did not even read his or her own denial.  Proofreading is an essential part of reviewing, writing, and issuing a decision.  OPM must ultimately realize that each decision is an important, crucial, and often critical point of importance in the life of the applicant.  It is a Federal or Postal worker who has previously dedicated many years of his or her life to a career with the Federal Sector, and the applicant for Federal Disability Retirement benefits deserves a fair hearing.  A fair hearing is defined by a careful evaluation of the particular case.  That is not too much to ask for.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Sometimes, It’s “The Law”

An assumption is often made that the “Disability Specialist” at the Office of Personnel Management who reviews the Federal or Postal Disability Retirement application understands, comprehends, and applies the laws governing Federal Disability Retirement applications.  Now, such an assumption may be logical and reasonable, to the extent that one thinks (A) that those who aspire to working in a specific specialty have some knowledge or understanding of the specialty, and (B) if a decision is made which involves discussing “the law”, one presumes that the mere discussion of it proves some knowledge of it.  

The problem with such reasoning, however (apart from the popular tripartite acronym which originates from the word “********-u-me”), is that it betrays the facts:  often, from reviewing the denial letters generated from the Office of Personnel Management, it is painfully clear that the administrative specialist, the legal specialist, or whatever other “specialist” designation has been embraced by the worker at the Office of Personnel Management, simply fails to apply all of the applicable laws which govern Federal Disability Retirement applications.  This is understandable, to this extent:  OPM representatives (other than those representing OPM at the MSPB level) are not lawyers, and as such, do not keep up with the latest evolution of the laws governing Federal Disability Retirement issues.  Whether that is a good thing or a bad thing, is another matter altogether.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Chasm between Denials

From the perspective of an individual Applicant for Federal Disability Retirement benefits under FERS & CSRS, the individual applicant does not normally observe some other person’s Federal Disability Retirement application, and therefore never has the opportunity to see the “greater process” at work, or patterns of behavior on the part of the Office of Personnel Management.  Yet, there are indeed patterns, and that is why an experienced attorney who has seen literally thousands of Federal Disability Retirement cases over numerous years, has an advantage in responding to OPM’s denials.  Experience lends itself to greater observation.  Experience over time reveals certain patterns.  And patterns of behavior can reveal important principles. 

Certain OPM Representatives provide detailed and (often) irrelevant factual references which can be ignored; others like to “cite the law” and believe that such citations appear irrefutable and authoritative; and still others give scant discussion to laws or to facts.  Thus, there often appears to be a great chasm between the types of denials.  Whether or not there are such differences, an applicant who has received a denial for his or her Federal Disability Retirement case needs to respond to any such denial with a three-pronged attack:  Medical refutation; Factual correction; Legal assertion.  Such an attack will cover any chasm which might exist between the different individuals who send out a denial letter.  More importantly, it will cover the necessary elements for winning a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsideration Response — Refrain from Reflexive Response

When a denial is received for an Application for Federal or Postal Disability Retirement benefits under FERS or CSRS, sometimes they are replete with comical “errors” and omissions.  Thus, anywhere from mistaken identities, to wrong job identifications, to the wrong doctors named; from medical conditions which were never claimed, to diagnostic tests and surgeries which were never submitted; these are just some examples of errors and omissions which one might find in the body of the “Discussion” in an OPM denial letter.  The reflexive temptation is to put together a string of harangues and accuse the OPM Representative of incompetence, incoherence, ineptitude, and inability to perform the essential element of his or her job.  Such a reflexive response would be the wrong tact to take, however.  One should refrain from making such “ad hominem” attacks.  Instead, the better way to go about it would be to politely point out the major errors, the omissions of any medical or other substantiating documentation, in an understated way, then to argue the main points that need to be argued to rebut the denial letter.  While the former methodology may make you feel good, in the end, it is an approval which will prove to be of lasting elation.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Continuing Patience

It is difficult to be patient.  The Office of Personnel Management, in reviewing and evaluating each case, takes its time.  One can attempt to “read into” each day, as to whether the longer wait is more beneficial than a decision which is to be made in short order.  Calling to check on the “status” of the case can have a negative effect upon a decision, although it is not “supposed to” do so. 

Often, the response by OPM’s representative is that a decision will be made “this week” or “next week” or “by the end of the month”.  Time passes, and there is no decision.  These past couple of weeks, OPM has sent out many decisions that were long-in-waiting.  When the decision is a favorable one, then of course the burden of the wait is suddenly lifted.  When the decision is a denial, then the response is often one of anger, disbelief or discouragement.  Once the emotions are set aside, then one must accept the reality of further waiting.  Yes, patience is a virtue, and Federal and Postal employees must be the virtuous of all people.  But those are empty, vacuous and meaningless words when one must wait to see what the future holds. 

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement for Federal and USPS Workers: Selective Reality

The problem with an unrepresented Federal or Postal employee who files for Federal Disability Retirement benefits from the Office of Personnel Management, is that because this is the one and only encounter with OPM, any response from them will be a narrow, one-dimensional perspective.

Thus, if the Office of Personnel Management denies the Federal or Postal disability retirement application, such a denial, the manner in which it is written, the content, the apparent delineation of “the law”, and the loosely-stated declarative statement while vaguely referring to the insufficiency of one’s medical documentation, will result in a narrow perspective, in a vacuum of reality created by OPM.

OPM’s denial letters are notorious for its selective reality.  Such selective reality will completely ignore all medical statements which seem to support the OPM disability retirement application, while selectively focusing upon every tidbit of medical notations which favor the denial.

Thus, be careful if on any given day, you arrive at the doctor’s office and the doctor asks you how you are feeling, and you respond with, “I’m feeling pretty good, today.”  Such a conversational statement may nullify the fact that, in its proper context, what the reality of your statement meant to convey was:  “I’m feeling better today in comparison with yesterday and the entire month before, but in no way could I perform my job even today.”  But OPM will selectively pick upon that one statement, and run with it — to a complete and total basis in denying your Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire