Federal and Postal Disability Retirement: Approaches & Decisions (Continuation)

This is not to say that the Reconsideration Stage of the process, in the stage where there has (obviously) been an initial denial, should not retell a narrative; it is to simply point out the differences in where the emphasis should be — or, rather, where I place the different emphasis based upon the stage. 

How I approach each stage, in general terms, is as follows:  The Initial Stage (the initial application for Federal Disability Retirement benefits under FERS & CSRS) focuses upon the narrative of the applicant — the description of the medical condition; the kind of job and the essential elements thereof; the interaction and impact of one upon the other, as well as some initial legal arguments.  If it is denied, then the Reconsideration Stage has a “shift of paradigm” on what should be emphasized.  The Office of Personnel Management will often question the adequacy of the medical documentation.  In that case, one needs to respond in a two-pronged attack:  (perhaps) an updated medical report, but concurrently, an aggressive legal attack upon the legally untenable position of the denial.  This methodology sets up for the Third Stage of the process, in the event that it becomes necessary — the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Patience is a Necessity

I have said this many, many times:  If patience is a virtue, then Federal employees must be the virtuous of all people, especially those who are filing for Federal Disability Retirement benefits and waiting upon the Office of Personnel Management to make a decision.  Then, even after it is approved, it is often months and months until one’s case is finalized and taken out of the “interim” pay status to final pay status; or, if the case is denied at the First Stage and you have to file a Request for Reconsideration, submit additional medical and other evidence, file a Memorandum of Law to try and convince the Second Stage Representative that, indeed, contrary to what the First Stage Representative had argued, you have been in full compliance and meet with all of the criteria for eligibility for FERS or CSRS disability retirement benefits — which can take an additional 120 – 150 days.  Then, of course, if it is denied at the Reconsideration Stage of the process, you must file an appeal within thirty (30) days to the Merit Systems Protection Board, where the Administrative Judge is mandated by statute to conclude a case from the time of appeal within 120 days.  The entire “process”  — and this is precisely why I refer to the administrative procedure of filing for Federal Disability Retirement benefits under FERS or CSRS as a “process” — requires and demands patience.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM May Say So, But…

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.” 

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,
Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Rationale

Too much time is often spent on the “rationale” or “reasons” for a denial from the Office of Personnel Management, under the “Discussion” Section of a denial letter.  By “time spent”, however, is not meant that one should not selectively rebut, refute and address some of the reasons delineated in an OPM denial letter; rather, what too many people do is to complicate matters by “reading into” the reasons given for the denial. 

One of the jobs of an attorney who specializes in Federal Disability Retirement law under FERS & CSRS is to prepare an application for Federal Disability Retirement benefits, rebut a denial, or file an appeal to the Merit Systems Protection Board, based upon one’s experience, wisdom and sense of that which OPM is looking for.  This is accomplished by having learned from a myriad of sources:  from seeing the types of prepared disability retirement packets which have been successful in the past; from learning from past legal arguments and rebuttal arguments as to which have been most persuasive for OPM; and from having conducted multiple Hearings before the Merit Systems Protection Board and learning exactly what the Administrative Law Judge has been most persuaded and convinced by.  Further, having read countless denial letters by people who have attempted to file for Federal Disability Retirement benefits at the first stage without an attorney, it is important to focus upon the relevant issues which OPM is seeking, and to disregard those issues which are peripheral or irrelevant.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: OPM's Words

It is a frightening thought that there may be a percentage of Federal or Postal Federal Disability Retirement applicants who read an initial denial from the Office of Personnel Management, and take their words at face value.  From statements such as, “Your doctor has failed to show that your condition is amenable to further treatments” (by the way, when did the Office of Personnel Management obtain a medical degree or complete a residency requirement?) to “you have not shown that you are totally disabled from performing efficient work” (hint:  this is not Social Security, and the standard is not “total disability”), to a full spectrum of error-filled statements in between, one may suspect that there may be a knowing strategy in rendering a denial, knowing that a small percentage of the corpus of disability retirement applicants will simply walk away and not file a Request for Reconsideration. 

Further, I suspect that this occurs more often with certain more “vulnerable” medical conditions — Fibromyalgia, Chronic Fatigue Syndrome, Major Depression, PTSD, anxiety, panic attacks; Chemical Sensitivity cases, etc.  Why do I suspect these?  Mostly because such cases are attacked for “lacking objective medical evidence” (see my articles on Vanieken-Ryals v. OPM, and similar writings) and failing to provide “diagnostic test results”, etc.  There was a time, long ago, when it used to mean something when someone said, “The Government says…”  In this day and age, I would advise that you take it to an attorney to review whether or not the words of the Office of Personnel Management are true or not.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Disability Retirement: Discretion in a Response II

In responding to an initial denial of a Federal Disability Retirement application before the Office of Personnel Management, it is important to remain professional, and not to “overload” the response with unnecessary or otherwise irrelevant responses.  Initial anger and disbelief over the selective criticisms contained in an OPM denial letter should not be reflected in a response to the denial.  Why not?  Because there is a good possibility that the case may be denied a second time, and it may appear before the Administrative Judge at the Merit Systems Protection Board.  Don’t write things to OPM that you will regret having an Administrative Judge — one who may be deciding your case — look at and read.  Thus, the “first rule”:  never write an immediate response back, because your anger and emotional disbelief will show itself.  If you need to “get rid” of your anger and expiate the emotionalism, then write your emotional response on a separate piece of paper, then set it aside.  Your “real” response will come later — when you can with a rational perspective, review the unfair and selectively biased denial letter, and begin to compose the serious response that your case deserves.  Or, better yet, get your attorney to do it.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretion in a Response

When a Federal Disability Retirement applicant under FERS or CSRS receives an unfavorable response from the Office of Personnel Management (translated:  an initial Denial), you have the right (which must be asserted in order to move forward in the future, i.e., to the MSPB and beyond) to file a Request for Reconsideration.  If you receive a second denial, then the only response required (and which should and must be asserted) is an appeal to the Merit Systems Protection Board.  A response to the initial denial, however, should include a reply to the (often) detailed “discussion” section of the denial letter. 

Normally, when I file a response (in addition to obtaining additional medical documentation from the doctors, and any other substantiating documentation which may be relevant), I normally write up a 5 – 7 page responsive legal memorandum rebutting the denial letter.  Now, this is where “discretion” is necessary.  Upon an initial reading of a denial letter, one’s first response is normally not that which one should act upon, because it is often a reaction of, “What???”   Discretion is a virtue to follow; there must be a proper balance between responding to every single criticism from OPM (not a good idea), to ignoring everything in the denial letter (also not a good idea), to choosing two or three of the more substantive issues brought up and addressing those issues.  How to address them, with what tone, what manner & style, etc., is what an attorney is for.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "Process" at the Reconsideration Stage

It is important to understand that the “process” of filing for Federal Disability Retirement, when it comes to the Second, or “Reconsideration” Stage, encompasses two factual prisms:  (1)  The application has now been denied (obviously, and for whatever reason — most likely because of “insufficient medical evidence”) and (2) it is the stage in the process prior to an appeal to the Merit Systems Protection Board. 

This dual prism of the stage, while self-evident, is important to keep in mind, because it requires a duality of duties:  A.  It requires (for the Disability Retirement Applicant) a duty to show something beyond what has already been shown, while B.  It requires the Office of Personnel Management to be careful in this “process” of review, because if OPM makes a mistake at this stage, then the likelihood is great that they will be required to expend their limited resources to defend a disability retirement case before an Administrative Judge, and if it becomes obvious that the case should have been decided favorably at the Second Stage, it reflects negatively upon the Agency.  OPM is an agency made up of people (obviously); as such, just as “people” don’t like to look foolish, OPM as an Agency made up of people, does not like to look “badly” or “foolish”.  This duality of factual prisms is important to understand when entering into the Second, Reconsideration Stage of the “process”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Generic Denial

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