OPM Disability Retirement: Agency Loyalty

Many people who call me and tell me their narrative about the Agency, the medical conditions, the growing inability to perform the essential elements of the job, and the resulting need to file for disability retirement, often reveal an undertone of a common element:  after so many years of loyalty, how could the Agency show such callous lack of caring? 

I don’t have an answer to the question of lack of empathy on the part of an Agency; Agencies are made up of individuals; individuals show varying degrees of care, sympathy, and loyalty, but only up to a point:  if such care or empathy will somehow be perceived to harm the “mission of the Agency”, or if walking the proverbial “extra mile” for an individual who needs some temporary support is quite simply seen as “not worth the trouble,” then the individual will simply turn his or her back on the disabled individual.  When the individual turns his or her back on the employee filing for disability retirement, then the Agency turns its back on the person; for, again, Agencies are made up of individuals.  But what about the loyalty that was shown by the employee for all of those prior years?  How about the years of doing overtime, of doing extra work without complaint, etc. — doesn’t that account for some bilateral, reciprocal loyalty?  Unfortunately, it does not amount to much. Loyalty in today’s society is defined as:  What have you done for me today?  For the Federal and Postal Employee who needs to file for Federal Disability Retirement benefits, expect the worst; expect that your Agency will not be supportive during the 6 – 10 month administrative filing process.  Then, if by chance, a supervisor shows some empathy and support, you will have been pleasantly surprised.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: OPM's Methodology

When the Office of Personnel Management (OPM) approves a federal disability retirement application, a separate page from the approval letter will often be attached, which states the medical basis upon which the disability retirement application was approved. The separate page will often state something to the effect of: “You submitted an application for disability retirement based upon medical conditions, A, B, C & D; however, your application was approved for medical condition B only.”

The concern here, of course, is that if you are later selected to answer an OPM Medical Questionnaire asking you to re-establish your medical disability for continuation of your disability annuity some years later, that you make certain that you answer such a Medical Questionnaire based upon that very medical condition upon which you were approved. This is obviously important. Some have questioned whether or not you can appeal the approval letter based upon the fact that you believe OPM should have approved you based upon a different medical condition. In my view, this is not an appealable issue, and if you question OPM as to whether they should have considered you disabled based upon another medical condition, you may be in greater danger by OPM reversing themselves based upon a re-review of your case. It is best to leave “well enough alone”. Accept the approval letter based upon the identified medical condition, and inform your treating doctor that you may need his input in the future — to address that very medical condition for which you were approved.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement Applicants

FERS and CSRS disability retirement applicants are especially “vulnerable” because of the inherently precarious financial situation that an applicant often finds him/herself in, and often desperate need for an approval from the Office of Personnel Management. Most of the cases that I represent are approved at the First Stage; upon a denial, however, it is necessary to go to the Second Stage, or the “Request for Reconsideration Stage.” An invidiual has 30 days from the date of the denial letter to file a request for reconsideration, then another 30 days to obtain and suibmit additional medical and supporting documentation.

If it is denied a second time, then an applicant has a right to file an appeal to the Merit Systems Protection Board (MSPB). While the MSPB will hear the case de novo (meaning, “anew” without consideration of OPM’s prior decisions), neverthess, it is important to look upon a disability retirement case as a “case in progress”, and that is why hiring an attorney at the outset is often important. While most “mistakes” made by an applicant are minor and correctable, everything that is submitted — the applicant’s statement, any records or reports submitted — become part of the record as a whole and cannot be retracted or erased. That is why a thorough review by a competent attorney is important in filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire