CSRS & FERS Medical Disability Retirement: Insipience

The thread of differentiation and conceptual distinction can be based upon a mere sliver.  In practical life, pausing a moment because a person forgot his or her keys, can result in avoiding a chain of events terminating in causal calamities, merely because the time differentiation as a consequence of the slight delay allows for time to alter the historical ripples of cause and effect.

Words and conceptual distinctions can have similar minutiae of differentiations.  Linguistic gymnastics and elasticity aside, the word “insipience” conveys a meaning of being foolish and lacking of wisdom.  Changing a single consonant, and instead transforming the word into “incipience”, suddenly alters the concept into one encompassing origination and beginning stages.  Upon closer inspection, however, such a singular change of a consonant resulting in a radical alteration of meaning explodes with a recognition that the two are closely related: That which is in its beginning stages is often lacking of wisdom, precisely because little or no thought or reflection has been allowed.

That is precisely why the beginning stage of a process is so important — because it lays the foundation for all that follows. For Federal and Postal employees who suffer from a medical condition, such that the medical condition begins to impact one’s capacity to perform the essential elements of one’s job, the importance of beginning the sequential procedure of formulating an effective Federal Disability Retirement application cannot be overly stressed.

Federal Disability Retirement is a submission which is reviewed by the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS or CSRS.  As such, the reviewing process is accomplished be an agency separate and distinct (in most cases) from the one the Federal or Postal employee is employed by.  The early stages of formulation and preparation in a Federal Disability Retirement application will provide the necessary and important foundation for the successful outcome of a Federal Disability Retirement case.

It is thus the incipience of formulating and preparing a Federal Disability Retirement application, which will determine whether or not the outcome will be insipient, or not.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Initial Denial & Reconsideration

In the Animal Kingdom, there are artificial classifications superimposed by a class of individuals commonly and generically referred to as “scientists”, in which more generalized identifiers are further categorized, until you reach the “genus” classification, and within that genus, the “species” classification.  In the objective world of animals, such classifications are irrelevant and taken no notice of.  Instead, the necessity to be able to identify various species is essentially based upon the ability to recognize one’s natural predators, as well as one’s food source.  

Such anthropomorphic imposition on ordering the world for purposes of our understanding of the world was recognized by Kant in his Critique of Pure Reason, and the ability of Man to impose his a priori categories upon the objective noumenal world.  But in the world of Man, especially for the Federal or Postal employee who has prepared, formulated and filed a Federal Disability Retirement application under FERS or CSRS, it is important to understand the categorized arena within which he or she finds one’s self in.  

Thus, when an initial denial is received by the Federal or Postal worker, it is important to understand that filing a “Request for Reconsideration” does not take the Federal Disability Retirement case out of the hands of the agency which made the initial denial — instead, it is within the same agency (the Office of Personnel Management), but assigned to a next “level” in order for both the Federal or Postal employee to get a “second bite at the apple“, as well as for the deciding body (OPM) to review the case afresh, along with any new or additional evidence which the Federal or Postal employee can supply to OPM.  

This methodology of a second “review” makes sense, in that it allows for the deciding Federal Agency (OPM) to have a chance at correcting itself in the event that its initial decision was made in error, before it is allowed to be appealed to an independent, separate entity, called the Merit Systems Protection Board.  Thus, that same categorization and ordering of the world, superimposed upon the Animal Kingdom, is also utilized in the world of Man.  The same agency, but different sections; if the second review fails, then it is kicked up to a different genus — before an Administrative Judge at the Merit Systems Protection Board.

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

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Cost of Doing Nothing

The Office of Personnel Management has been sending out a number of decisions, and many have been denials.  They seem to come in batches; whether by coincidence, or in systematic fashion, OPM has tended in recent months to send out denials which fail to explain, leaving aside any concept of “discussion“, the basis of their denials.  

The irony of having a section entitled, “Discussion”, then merely delineating a regurgitation of the “applicable criteria to be eligible for Disability Retirement benefits“, then making a conclusory & declarative statement somewhat in the form of:  “You do not meet criteria X and Y” is hardly a “discussion” of the issues.  

Moreover, even in the denials which appear to be lengthy is the number of sentences, paragraphs or pages, the content is devoid of any substantive discussion of the issues.  It is more often simply a reference to a doctor, without any rational basis given as to what is lacking, but merely ending with a statement of conclusion, saying, “No objective medical evidence was provided,” or “The medical evidence does not show that…”  

One would expect that a logical structure of reasons would be provided, but such an expectation would fall short of what actually occurs.  The real problem is that, in reading such a denial letter, one doesn’t know where to start, what to answer, or what additional information needs to be submitted.  Thus, you must “read between the lines”.  

The cost of doing nothing is to get a further denial; that is simply not an option.  The best option is to reinforce what is already there.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: The Necessary Point

Obviously, the recommendation would be to have a Federal or Postal Attorney from the beginning of the process in filing for Federal Disability Retirement benefits under FERS & CSRS; however, each individual must make the determination as to what and wherein lies the necessary point of obtaining an attorney experienced in the area. 

The problem which often arises is that each individual who personally experiences the medical conditions which impact his or her life, as the identical person who is filing for Federal Disability Retirement benefits, feels that his or her disability retirement case is a “sure thing“.  It is difficult to bifurcate and distinguish between the two:  he who feels the direct impact of a medical condition will always be the only person who “knows” how that medical condition directly impacts his or her life, as distinguished from whether or not such facts and circumstances can be properly conveyed in a convincing and persuasive manner to the Office of Personnel Management.  Of course, the one point of necessity is if a case needs to be filed with the Merit Systems Protection Board.  An attorney is not only a necessity; it is almost impossible, in my humble opinion, for an appellant to go forward on his or her own.  On the other hand, I believe the same at each point in the process.  But the “necessary point” can only be determined by each individual.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Point of Necessity

Just as one should purchase insurance based upon the worst-case scenario, so one should generally prepare for anything in life with unexpected consequences in mind.  This is similar to the proper approach in preparing, formulating, deciding, and filing a Federal Disability Retirement application under FERS & CSRS.  People will often call an attorney only when he or she “thought it necessary”.  But who determined the point of necessity?  If the individual who determines the point of necessity is the same person who finds him or herself at the point of necessity, then it is often too little too late. 

Can most cases be reversed and won even after an initial denial?  Yes.  Can most cases be reversed and won even after a second denial at the Reconsideration Stage?  Yes.  Can most cases be reversed and won even after an initial denial, a denial at the Reconsideration Stage, then an adverse Initial Decision by an Administrative Judge at the Merit Systems Protection Board?  Perhaps.  How about thereafter?  You are then asking if, after all of the facts have been put forth, after all of the stages of consideration by the administrative process of filing for Federal Disability Retirement benefits, whether an error in the application of the law can be found.  Yes, at each state of the process, a Federal Disability Retirement application can be won; however, remember the the “point of necessity” is not best determined by the one who thinks it is finally necessary; it is often best determined by an experienced OPM Disability attorney.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM’s Detailed Denial

Neither length nor detail constitutes legitimacy.  The spectrum of the types and styles of denial letters issued by the Office of Personnel Management in Federal Disability Retirement cases under FERS & CSRS range from a short paragraph under the “Discussion Section”, to 3 – 4 pages of apparent references to doctor’s notes, reports, etc. — with a lengthy lecture about the need for “objective” medical evidence, and about how a particular medical condition “may be” treated by X, Y or Z treatment modalities. 

Don’t be fooled.  One may think that, because OPM provides a seemingly “detailed” explanation of why a particular disability retirement application was denied, that such lengthy detail means that it is somehow “substantive”.  In fact, I often find the opposite to be true:  the shorter the denial, the greater the substance.  The lengthy denial letters contain “substance”, all right — but substance of the wrong kind.  They contain:  Mis-statements of the law; mis-statements of the criteria to be applied; inappropriate assertions of medical opinions (contrary to what one might think, the OPM representative does not normally have a medical degree, let alone a law degree), and a host of other “mis-statements”.  Sometimes, the weightier the denial, the more confusing as far as how to respond.  And, perhaps, that is one methodology as to how OPM wants to approach the case:  If it seems long and complicated, maybe the applicant will sigh, give up, and go away.  Don’t.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Reconsideration Process

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the “hope and wish” of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been “denied”.

You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted “was insufficient” to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have “not shown that you are so disabled as to keep you from the workplace” (no such legal standard is required under disability retirement rules, regulations or case-law).

Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial — even if it doesn’t seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments –in short, the “nexus” needed to win.

Sincerely,

Robert R. McGill, Esquire