Federal Disability Retirement Attorney: The Second, Reconsideration Stage

It is not a reflection upon the validity of one’s medical condition; a denial from the U.S. Office of Personnel Management can mean multiple things, not the least of which may include:  insufficient proof failing to rise to the level of satisfying the preponderance of the evidence standard.

Federal Disability Retirement applications are compiled in a myriad of manners; yes, the standard forms themselves tend to compel a certain semblance of conformity, but ultimately the strength of a case will depend upon the supportive documentation attached, and here is “the rub”:  there still exists the “human element” in the reviewing analysis of a Federal Disability Retirement application.

Yes, certain sets of legal criteria are applied (but who and how are they interpreted in their application?); and while satisfaction of the legal criteria is supposed to be determined by the general principle of “preponderance of the evidence“, who and what complies with meeting such a standard?  How is such satisfaction determined?  Such questions, of course, imply a human element in the administrative process of an OPM Disability Retirement review, and whether we like it or not, reveals an underlying connection to imperfection and fallibility.

There is no mathematical algorithm of mechanistic applications which will completely correct the underlying problems inherent in human review within the context of a bureaucratic process.  Fortunately, however, the process itself contains a self-corrective device: different stages and levels of review, which allows for the Federal employee or the U.S. Postal worker to provide additional supportive documentation in order to reinforce and strengthen one’s Federal Disability Retirement case.

There are limitations, however, and that is why “corrective action” at the Second, Reconsideration Stage of the administrative process of Federal Disability Retirement is just that — it is to “correct” the mistakes, lapses and inherent lack identified in the original Federal Disability Retirement packet.  The “limitations” are set by law, and are determined by how one characterizes one’s medical conditions in the Statement of Disability as perpetuated on SF 3112A.

Care should always be taken, of course, in the initial preparation of a Federal Disability Retirement application, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, and before it is forwarded through one’s agency to the U.S. Office of Personnel Management.  But in the end, one must recognize that the entirety of the administrative process is one which involves multiple stages of a bureaucratic procedure, and the Second, Reconsideration Stage is merely another level of self-regulating refinement to ensure that the human element, including mistakes and misapplication of the law, is expunged to the extent possible, and instead, that the objective application of the law is uniformly dispensed in order to reach a statistically acceptable algorithm of fairness and impartial determination.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for U.S. Federal Workers: The Second Bite at the Apple

Rarely in life does one have a second chance; in important matters, an opportunity will often present itself, and depending upon the option chosen, one must live with the consequences of such a choice, or live the remainder of one’s life with grumblings of quiet regret and remorse.

In the legal arena, the process of what the public views as “endless appeals and procedural maneuvers” allows for the litigant to have multiple chances, and not just a “second bite at the apple”, but often a third, fourth…and seemingly infinite opportunities.

For Federal and Postal employees filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there are multiple chances at filing for and obtaining Federal Disability Retirement benefits.  The only obstacle is if the Statute of Limitations has come and gone — the filing deadline of 1 year from the date of separation from Federal Service.  Even that hurdle contains some exceptions — as in a Federal or Postal employee being deemed incompetent by a psychiatrist to file within the timeframe.

For those who have filed and been denied, and for some reason failed to file for Reconsideration or an appeal to the MSPB — you can refile.  For those who filed and were denied at every level — you can refile. Does OPM still keep your previous file?  Yes. Will they review your old file along with the new filing?  Yes.  But if the new filing is stronger and better prepared, you stand the same chance as a Federal or Postal employee who has just submitted an initial application.

Rarely does one get a second bite at the apple; fortunately, under our system of legal procedures, the taste of the fruit is within reach for another time, and often the taste is more satisfying than the first encounter.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Refiling

For various reasons, it is necessary to refile a case.  Sometimes, an individual who has received a denial from the U.S. Office of Personnel Management, has allowed the 30-day time period to lapse, and therefore has lost the right to file for Reconsideration, or to file an appeal to the U.S. Merit Systems Protection Board.

As long as the Federal or Postal employee who has allowed for such lapse has not been separated from Federal Service, or from the U.S. Postal Service, for more than one (1) year, such refiling is perfectly acceptable.  However, if a Federal or Postal employee who has been separated from Federal Service, has:  (A)  been separated from Federal Service for more than one (1) year, and (B) has allowed for a denial from the U.S. Office of Personnel Management to lapse for more than thirty (30) days, then such a Federal or Postal employee has forever lost his or her right to refile, precisely because the Statute of Limitations would preclude the Federal or Postal employee from refiling.

In determining whether or not to refile because the Federal or Postal employee still continues to retain the right to file again, the identical questions which one should ask in the original filing of a Federal Disability Retirement application would prevail:  Do I have a supportive medical doctor?  Does my medical condition prevent me from performing one or more of the essential elements of my job?  Will my doctor help me prove that I can no longer perform one or more of the essential elements of my job?

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the questions for an original filing, or in refiling, remain the same; the only change is the time that lapses, making each of us a day older, but hopefully, that much wiser.

Sincerely,

Robert R. McGill, Esquire