Federal Disability Retirement: The Symbiotic Relationship

In biology, symbiosis refers to the interaction between two different organisms, often benefiting both.  It is the coexistence through the capacity to acquire greater advantage without diminishment and harm to the other, which then allows for the balance of nature to occur.

In other contexts, in differing circumstances or changed environments, perhaps the relationship and the interaction would alter, and the evolutionary forces of nature would impel each to become predator and prey; but for whatever reason, it is precisely the stability of balance in nature which allows for, and favors, such a symbiotic relationship.

By analogy, the relationship between the U.S. Office of Personnel Management and the Federal and Postal worker, whether the latter is under FERS, CSRS or CSRS Offset, enjoys the symbiosis of necessity.  It is precisely for the Federal and Postal worker that the very existence of OPM is maintained; and for the Federal and Postal Worker who requires a personnel action to be processed, the existence of OPM is to the advantage of the Federal employee and the U.S. Postal worker.

For the Federal and Postal worker who suffers from a medical condition, such that the medical condition necessitates filing for Federal OPM Medical Retirement benefits, the enhancement and spotlight of the symbiotic relationship between OPM and the suffering Federal or Postal worker comes to the fore; it is, indeed, precisely a relationship of advantage to both entities and organisms.

Of course, just as in the universe of biological entities (of which the human species is a part of, lest we forget because of our so-called advanced state of evolutionary existence), circumstances may alter, environments may change, and contexts of interaction may convert; and a similar relationship as that between predator and prey may develop.

A denial of an initial application for Federal Disability Retirement benefits tends to do just that; for, suddenly OPM is not just a bureaucratic morass upon which one is waiting for an action to ensue; now, it is an adversary which must be countermanded.

Still, despite the change, and regardless of the alteration of the essence of the symbiotic relationship, where the Federal or Postal worker must then file a Request for Reconsideration within 30 days of the date of the denial of an OPM Disability Retirement application, the interaction must still exist, and necessity of circumstances requires the continuing relationship between the two given entities: the Federal and Postal worker who suffers from a medical condition on the one hand, and the U.S. Office of Personnel Management on the other.

It is by necessity of interaction that the two entities meet; it is by change of context which impels substantive alteration; but in the end, the reliance and dependence of symbiosis remains throughout.

Sincerely,

Robert R. McGill, Esquire

 

OPM FERS/CSRS Disability Retirement: Approaching a Reconsideration

The proverbial definition of insanity is to engage in the same repetitive activity with the expectation of receiving a different result.  While such a definition may not provide a clinically accurate or legally acceptable formulation, it does implicate the chaotic character and the futile act of responding in a particularly fruitless manner.

For Federal and Postal employees who have attempted to file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, and have received an initial denial, the process of having OPM reconsider one’s case must be approached in a 2-tier manner:  First, one must meet the “deadline” of filing for Reconsideration with OPM within thirty (30) days of the denial, or upon receipt of the denial (although, to be on the safe side, it is best to use the former date as opposed to the latter);  next, with the box checked to indicate submission of additional medical documentation, to then gather, prepare, compile and submit additional medical evidence within thirty (30) days thereafter, unless a further extension is needed and requested.

However, one should also understand that in an OPM Reconsideration case, it will not be the same Case Worker who will review the case, but it will be reviewed thoroughly by someone else as if it had never been previously reviewed. As such, there is the confounding conundrum of a dual anomaly: The First Case Worker who issued the denial based the denial upon certain specific points; yet, what the First Case Worker denied the case upon, may have no bearing upon what the Second, Reconsideration Case Worker will evaluate the case upon.

What does one do? Whatever one’s answer is to this complex conundrum, do not engage in the proverbial act of insanity; better to get some legal guidance than to spin one’s wheels in an insane world of futility.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Crucial Reconsideration Stage

In engaging the U.S. Office of Personnel Management for Federal or Postal Disability Retirement benefits, whether under FERS or CSRS, it is important to recognize the differences between the administrative and legal stages involved.

There is, of course, the initial application stage; one cannot overemphasize the importance of proper preparation and compelling formulation of one’s Federal Disability Retirement packet, for the First Stage of the process.  However, regardless of the adequacy of one’s Federal Disability Retirement submission at this initial stage, there are going to be a certain percentage which are denied, and which therefore must be propelled into the Second Stage of the Administrative process.

This next step is often identified as the “Reconsideration Stage” in the process of attempting to prove one’s eligibility for Federal Disability Retirement benefits.  It is known as such, because at this stage, one has the right to have one’s case “Reconsidered”; in order to do that, however, you must notify the U.S. Office of Personnel Management within thirty days of the date of their denial letter, or within receipt — but one should be cautious of the latter timeframe, as it can be rather tricky, and thereby one should proceed on the assumption that the 30-day timeframe begins from the date of denial as reflected on the Letter of Denial, just to be on the “safe side” of things.  To ensure compliance, the undersigned attorney always requests the reconsideration via a trackable delivery device, so that proof of delivery can be shown if necessary.

This Second Stage of the process in attempting to become eligible for Federal Disability Retirement benefits is a crucial stage in the process, because if it is denied again at this stage, then one must file an appeal to the U.S. Merit Systems Protection Board, and put on one’s case before an Administrative Judge — a complex process which takes it out of the hands of the U.S. Office of Personnel Management and places it in an entirely separate determining entity.

While each stage of any bureaucratic process can be deemed “crucial”, it is this point of differentiation which makes the Reconsideration Stage unique:  it is the last chance before entering into the complex arena of legalese.  Thus, for those already confounded by the complexities of the administrative process, the land mines to be confronted at the Merit Systems Protection Board will only be exponentially multiplied.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Someone Else’s Argument

Have you ever sat with company at a dinner table, and engaged in a conversation where it appears as if you are continuing someone else’s conversation?  Or your presence is merely a substitute for an extension of a previous debate or discussion?  Where a topic is brought up, and immediately a barrage of critical attacks — of arguments you have never made, and of statements you don’t recall disseminating (and where this is only 5 minutes into the salad and you’ve barely tasted the first glass of wine)?

The problem with unfinished business is that the transference of what one wanted to say is normally unloaded upon the wrong subject.  Conversations, debates, forums of intellectual exercises in linguistic battles — it is a rare person who has been able to convey the full force of one’s collective thoughts and beliefs on the matter, and it is more often the case that one leaves with the regretful remorse of, “I wish I had brought that point up…”  But rarely do second chances present themselves in a satisfactory follow-up forum; unless you are the unfortunate object for an unexpected dinner invitation.

In responding to a denial of a Federal Disability Retirement application with the U.S. Office of Personnel Management, whether under FERS or CSRS, the applicant — through his or her Federal Disability Retirement attorney — needs to understand that the person who issues the denial will not be the same person who will review any additional submissions or legal arguments at the Reconsideration Stage.

It will be reviewed, in legal parlance, de novo.  As such, while the basis of the denial as issued by the Caseworker at OPM at the First Level should be taken into consideration, one should approach the case in light of the following question: To what extent will the Reconsideration Branch care as to the original basis of the denial of the first caseworker?  If it is being reviewed de novo, the approach should be to go over all of the elements — and to reinforce and amend those weak points, some of which may overlap what the first caseworker pointed out, others which may not.

It may not be the best approach to argue to a dinner guest who wasn’t present at the first round of arguments; the points you are trying to make may not be heard because the bell has already rung, and the fighter in the second round has been replaced with someone upon whom you have never previously landed a punch.

Sincerely,

Robert R. McGill, Esquire 
FERS Disability Retirement Lawyer

   

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

Early Retirement for Disabled Federal Workers: The Appeals

While it is often stated that a Federal Disability Retirement application has three (3) stages to the process, there are additional appellate stages which must be considered, and certain additional steps and actions must be undertaken, in order to preserve the viability of the final two stages of the process.  The initial three stages are comprised of the (A) Initial Application Stage of the process in preparing and filing for Federal Disability Retirement benefits under FERS & CSRS; then (B) if it is denied at the Initial Stage, there is the Reconsideration Stage, where one may submit additional medical documentation and legal arguments, and finally (C) an appeal to the Merit Systems Protection Board, which takes the Federal Disability Retirement application out of the control and hands of the Office of Personnel Management, and allows for an Administrative Judge at the MSPB to hold a Hearing and make a determination.  

The two additional stages of the process for Federal and Postal workers who have filed for Federal Disability Retirement benefits, are:  (1)  a Petition for Full Review (which I recommend should be taken, in the event of a further denial by the Administrative Judge at the MSPB Appeal) and (2) the U.S. Court of Appeals for the Federal Circuit (which can be filed with directly after being denied at the MSPB level, skipping over the Petition for Full Review).  The last two stages of the process — the Petition for Full Review and the U.S. Court of Appeals for the Federal Circuit — will not consider any “new evidence” (except in some rare instances), but will be a review as to whether any error of law occurred.  As such, all of the previous steps of the process would be reviewed, and that is why at each and every step, it is important to know what is important in preserving one’s right to an appeal, what is a basis for an appeal, etc.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Mistakes Made

There is obviously an assumption to be made that if a case is denied at the initial stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS, that a “mistake” must have been made.  The mistake, then, is given an opportunity to be “corrected” at the Second, or Reconsideration Stage, of the Federal Disability Retirement process.  Further, if the mistake is not properly corrected, or corrected to the satisfaction of the Office of Personnel Management, and it is again denied — at the Reconsideration Stage of the process — then there is the cumulative assumption that further mistakes were made in the application.  Just as success distinguishes between winners and losers, the general assumption is that a denial by the Office of Personnel Management means that there was something inherently wrong with the Federal Disability Retirement application at its inception. 

Yet, if this were true at each turn, for every case, then there would never be a case where, at the Third Stage of the process, in filing an appeal to the Merit Systems Protection Board, that the Representative from the Office of Personnel Management would not reverse a denial and grant the disability retirement after listening to the legal arguments made by the attorney for the applicant.  Many times, it is the pointing out of overlooked aspects of a case which makes the difference between an approval or a denial — and not necessarily something that is inherently wrong, or that a “mistake” was made.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Reconsiderations

There is a line to be drawn between arguing the law within a boundary of integrity, and arguing the law beyond any reasonable interpretation of the law.  This principle is no less true in administrative law, which is what Federal Disability Retirement law is considered.  I often see non-lawyers make “legal arguments” in an initial application to the Office of Personnel Management, which is then denied, and I then enter my appearance in the case at the Second, Reconsideration Stage of the process.  That is fine — some applicants want to try and save the cost of hiring an attorney, and then decide it is necessary after it has been denied. 

However, as I often explain to clients:  while most mistakes in a Federal Disability Retirement application can be amended or explained, I do not have the magical ability to place “blinders” upon the eyes of the OPM Representative for legal or other arguments or statements made to them at the First Stage of the Process.  While my website and my articles & writings provide a good bit of information on filing for Federal Disability Retirement benefits under FERS or CSRS, and anyone can use it to his or her advantage, one bit of caution:  Don’t make legal arguments if you don’t fully know what you are talking about.  To do so more often than not results in a loss of credibility, and if your case goes before an Administrative Judge at the Merit Systems Protection Board, the Judge may not look favorably upon a case where a spurious argument was made at the initial stage of the process.

Sincerely, Robert R. McGill, Esquire