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

Federal and Postal Disability Retirement: The Strategy of Disheartening the Opposition

When Federal and Postal employees who have filed for Federal Disability Retirement benefits under FERS or CSRS, and have been denied at the initial stage of the process, many are sincerely disheartened.

In my initial contact with the denied applicant, there are multiple levels of reactions, including:  the denial letter points to legal criteria which they were unaware of; it refers to doctors notations which are taken completely out of context; they have completely ignored major portions of what the doctor has stated; OPM points to legal criteria which has been met, but which OPM simply denies that it has been met.

What can be done?  This is the strategy of disheartening the opposition.

In other denials, it is simply a matter of referring to a doctor’s report here, and to a medical notation there; then to simply declare:  You have not submitted sufficient medical documentation and fail to meet the legal criteria to be eligible for Federal Disability Retirement benefits.  What can be done?  No explanation; just scant references, then a unilateral declaration.  Again, this is the strategy of disheartening the opposition.  What to do?  Don’t get disheartened.  Respond.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: OPM & the Template Approach

Starting from a template is not necessarily a bad thing.  One should not have to repetitively reinvent the wheel in any endeavor.  It is when one uses a template blindly, without carefully reviewing and evaluating the facts and circumstances of a particular case, that the problem arises. 

Each case in a Federal Disability Retirement case under FERS or CSRS is unique, not so much because a specific medical condition is unique (although, obviously, it is “unique” to the individual suffering from it); and not so much because of the type of job that a particular Federal or Postal employee works in.  Rather, the uniqueness of the particular case normally arises in the combination of the two — the symptoms manifesting from a particular medical condition, and how it impacts the ability or inability to work at a particular kind of job. That, in essence, is the core of a Federal Disability Retirement case under FERS or CSRS — the combining and clashing of the medical condition with a particular kind of Federal or Postal job, and the incompatibility between the two.  How the Office of Personnel Management reviews that combination is what is often at issue — and, because templates are generic treatments without regard to particular and unique facts and circumstances, that is precisely the reason why they fail to address the uniqueness of a particular case.  (Next:  How OPM’s template is often predictable and ultimately ineffective in a Federal Disability Retirement case)

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Decisions

One would like to think that the Office of Personnel Management takes each case independently, reviews each case according to the merit of that particular case, and that, based upon a fair, independent and careful evaluation process, a decision is made for an approval or disapproval.  When a decision from OPM reaches a Federal Disability Retirement applicant under FERS or CSRS, that applicant will see such a decision, and that decision alone.  When an attorney who specializes in OPM Disability Retirement sees such a decision, it is clearly based upon a template, and after viewing thousands of such template-based decisions, a pattern begins to develop. 

Templates are not in and of themselves a negative thing; one need not “reinvent the wheel” each and every time.  It is only when a template does not “fit” a particular case, or where it is clear that a decision contradicts the substantive content of the disability retirement application or the documentary attachments, that there is any negative issue with a template.  Fortunately, most OPM decisions are fair and properly evaluative; every now and then, however, it is evident that a template-driven decision has been issued without thought or fair analysis.  That is when a true problem has arisen.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Law

Technically, the law does not have to be applied at the administrative, agency-level of the Office of Personnel Management.  Let me clarify:  one likes to always think that when an applicant for Federal Disability Retirement under FERS or CSRS is filing for the benefit, that the agency which oversees the application will review it with an overarching umbrella of criteria which is governed by an objective foundation deemed as “the law”.  Thus, in a perfect world, one might imagine an efficient line of technocrats sitting in cubicles, all with a reference book containing the relevant laws governing the eligiblity criteria for Federal Disability Retirement.  But that would be in a perfect world; and since such a perfect world fails to exist, what we have is an arbitrary sprinkling of various personnel, who collectively comprise the Office of Personnel Management, some of whom apply the law well, and some of whom apply the law less than competently. 

To some extent, the arbitrary methodology applied at the agency level is counter-balanced with the threat of a review by an Administrative Judge at the Merit Systems Protection Board, followed by a Full Review at the MSPB, then to be further appealed to at the Federal Circuit Court level; but it is nevertheless sometimes disconcerting that, at the Agency level, this peculiar animal called “the law” is not uniformly applied in all cases, at all times.  And sometimes rarely.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsiderations

The Office of Personnel Management does not give a decision over the telephone.  At least, that is their stated policy.  They ask that you instead wait for their written decision, which will be “sent in the mail shortly”.  Sometimes, of course, either by the tone of the conversation or by some slip of the tongue, one can discern whether or not a Federal Disability Retirement application has been approved or denied.  But such “guessing” can be a dangerous endeavor to engage in, and as such, I follow the very policy of OPM and will not convey to my client any “internal thoughts” following upon any discussions with an OPM representative. 

First of all, I find that calling an OPM representative too often is counter-productive; they are overworked as it is, and repeatedly inquiring about the “status” of one of my cases only irritates them further, and there is always the danger of having it denied simply to get rid of it (aghast — can this possible ever happen?).  Second, I made the mistake many, many years ago of once telling my client that his/her case had been approved, when in fact it had been denied.  I learn from my mistakes.  Hopefully, my experiences gained from such mistakes have made me wiser today.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Helpers

Then, of course, there are those Human Resources and OPM personnel who have been, continue to be, and will always be, greater helpers throughout the process in assisting Federal and Postal employees to obtain disability retirement benefits under FERS & CSRS.  They are diamonds in a sea of hindrances and obstacles.  And when you come across such an individual, at any stage of the process, one must always express one’s gratitude.  One might argue that they are “just doing their job”, but what such individuals do is clearly beyond the job that they are paid to do.  No only do they assist in the process, but they “humanize” the process; and, especially when a Federal or Postal employee who has a medical disability receives not only assistance in the process, but guidance in providing help to ease and smooth the road to approval, it is indeed a pleasant experience to come across the human touch. A word of thanks to all such Human Resources Personnel.

Sincerely,

Robert R. McGill, Esquire