CSRS & FERS Disability Retirement: OPM & the Problem of Templates

The problem with the use of templates is that they are, over time and overusage, predictable; being predictable, they become ineffective.  Now, from the perspective of the Office of Personnel Management, applying a template to a Federal Disability Retirement application under FERS or CSRS, whether predictable or not, is somewhat irrelevant, to the extent that a denial is still a denial, and an approval is simply an approval. 

It is only if and when a case is appealed (after an initial denial and a denial at the Second Stage, at the Request for Reconsideration Stage) to the Merit Systems Protection Board, that the template has to be “defended” if the Administrative Judge asks for clarification of the issues by referring to the template-based denial.  Moreover, what is predictable is the combination of medical condition/denial rationale.  For instance:  for Fibromyalgia:  “The condition waxes and wanes”; for Major Depression:  “Not enough time has been allowed for the efficacy of a medication regimen“; for anxiety & panic attacks:  “There is insufficient objective medical evidence”; for Chronic pain:  “Physical therapy has not been sufficiently given a chance to…”   These are some examples of templates used by the Office of Personnel Management, each of which can easily be refutted in any particular case.  The methodology of refutation, obviously, is where a federal disability attorney can be of greatest counsel and representation.

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

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