CSRS & FERS Medical Disability Retirement: Cornering OPM’s Malleable Stance

At the initial stage of the process identified as “Federal Disability Retirement” from the Office of Personnel Management, whether under FERS or CSRS, it is often difficult for the Federal or Postal worker to grasp the various components which must be gathered, formulated, prepared and consolidated, in order to meet the legal criteria for eligibility.

Once submitted, if an approval is received from the Office of Personnel Management, then one need not be further concerned with whether or not the legal criteria was “met” (although one should still be vigilant in doing those tasks and preparatory work in order to retain and maintain one’s right to Federal disability retirement benefits).

If a denial is received from the Office of Personnel Management, then it is necessary to file a Request for Reconsideration within the thirty (30) day time period, and begin to determine which of the multiple issues OPM has delineated as being the basis of a deficient Federal Disability Retirement application.

Some attempt to do this via a “shotgun” approach — of spraying every answer available and hoping that some of the arguments, supplemental documents, statements, etc., hit the mark in some way.  A different approach is to selectively choose those issues which appear to be central to the case, and answer the essential ones, allowing for such answers to concurrently address the peripheral points brought out by OPM.  A third approach is to identify and consolidate OPM’s alleged basis for the disapproval, consolidate the issues into 2 or 3 main points, then “corner” the arguments by addressing them, concluding that the Federal or Postal employee has addressed the concerns of OPM and therefore OPM should not be able to change them at the Merit Systems Protection Board.

While an MSPB appeal is conducted “de novo” (“anew” or “afresh”, without regard to any previous determinations), it is nevertheless an effective methodology to point out the malleability of OPM’s varying stances, and thereby effectively streamline that which needs to be proven at the MSPB level.  A leopard which changes its spots too often loses its credibility, and making sure that OPM stays in one place is a useful tool in winning a Federal Disability Retirement application, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: When a Mistake is Made

Mistakes made in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, are usually correctable, and for a number of reasons:  most mistakes merely require additional clarifications; some “mistakes” are only apparently so, but substantively valid otherwise; and ancillary mistakes of an innocuous nature can reflect the inconsistencies of reality, as opposed to a direct contradiction between two or more persons.

While blinders cannot be placed upon the Case Worker at the Office of Personnel Management once a Federal Disability Retirement application has been submitted, nor does it usually require such drastic measures.

The question to be asked, of course, is whether or not the alleged “mistake” should be addressed, to what extent, and how prominently?  For, the old Shakespearean adage that “thou protesteth too much” can apply in a Federal Disability Retirement application, where too much emphasis upon a particular issue can unduly magnify the issue itself, as opposed to dealing with the issue in a passing manner.

Thus, a statement made in the Applicant’s Statement of Disability, or by a treating doctor, which indicates an undermining of meeting the legal criteria of eligibility in a Federal Disability Retirement application, should probably be addressed.

A direct statement made in a Supervisor’s Statement may or may not be relevant.  Often, such statements are merely opinions meant to undermine a Federal Disability Retirement application, but whether it is worth addressing is a discretionary issue.  The real issue concerning discrepancies or mistakes have to do with who is making it into a loud noise; and the one who makes the loudest noise, is often the one who attracts the greatest attention.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Reconsiderations

When a Federal Disability Retirement application under FERS or CSRS is denied at the first stage of the process, a Federal or Postal worker who filed for the benefit has the administrative right to request that it be “reconsidered” by the Office of Personnel Management.  Once requested, the case file is turned over to the “Disability Reconsideration Branch” of the office, and will be reviewed and evaluated by a Disability Specialist — not the same person who reviewed it at the Initial Stage of the process. 

A person who has filed for Federal Disability Retirement benefits has thirty (30) days to Request Reconsideration.  While the 30-day period may arguably have some flexibility based upon when the applicant actually received the denial letter, it is nevertheless a good policy to adhere to the 30-day time-frame by counting the date of the denial letter as the “beginning” date.  Obviously, it is better NOT to be placed in a position of having to argue whether or not the applicant met the 30-day deadline.  Further, it is best to send it in via a means where confirmation of receipt can be shown.  OPM is a large bureaucracy, and things get lost in the morass of the volume of submissions.

Sincerely,

Robert R. McGill, Esquire

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