Federal Disability Reconsiderations & Additional Medical Information

The denial comes in the mail; it is a further delay, a negation of prior efforts; for many, it undermines and constitutes a condemnation of sorts, and a refusal of an affirmation sought in places and from people where none is offered.  It is, after all, another piece of correspondence which negates the negative:  the medical condition itself and the loss of one’s ability to perform one or more of the essential elements of one’s job, represented the first foundation of negation; now, a denial from the U.S. Office of Personnel Management merely confirms, via a second negation, the loss of positive forces inherent in failure and Federal bureaucracies.

But all things in life must be kept in their proper perspective, and a reaction of disproportionate magnitude must be kept in check; life is often a series of mishaps; yes, it just seems that such unfortunate events happen to certain individuals, and as the old adage goes, when it rains, it pours.  Once the initial shock of the denial is withstood, then the trepidation and cautious perusal, followed by an obsessively careful scrutiny, of the reasons for the denial issued by the U.S. Office of Personnel Management, is engaged; but the futility of such efforts will become apparent.

The monotony and disinterested voice behind the volume of verbiage and almost bellicose verbosity becomes more than apparent: either the administrative specialist at the U.S. Office of Personnel Management did not read the medical file or, more likely, selectively chose to extrapolate statements and findings out of context in order to justify the denial of one’s Federal Disability Retirement application.

At this Second Stage of the process of trying to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether the Federal employee is under FERS or CSRS, it matters not what the words say with respect to the denial issued by OPM; the file is immediately transferred to a general, unassigned file, awaiting further instructions from the person to whom the denial has been issued:  if left unanswered, the file will disappear within the cauldrons of bureaucratic warehouses; if a Request for Reconsideration is timely filed, then it will ultimately be assigned to someone in the Reconsideration Division at OPM; but, in either case, it is no longer the responsibility of the OPM representative who issued the denial, and no amount of phone calls, venting or sending of additional information to that person will make a whit of difference, until (a) the Request for Reconsideration is timely filed, and (b) the Federal or Postal employee addresses some of the concerns brought up in the denial itself.

The Reconsideration process itself is fraught with dangers and potential pitfalls; it confirms that perhaps the Federal or Postal employee should have sought the advice, counsel and guidance of an attorney who specializes in Federal Disability Retirement law, but moreover, as most mistakes are correctable, it may be a wise avenue of choice to seek legal assistance, finally.

In any event, time factors must be considered, and the time lost today by extension of a denial, further confirms the oldest adage of all, that being penny wise is to be pound foolish,  a saying that is often attributed to Benjamin Franklin, but can be traced to those earlier.

Sincerely,

Robert R. McGill, Esquire

 

Medical Retirement for Federal Workers: Fear and the Masking of Medical Conditions

Fear can exacerbate, and simultaneously hide the underlying cause.  The Western philosophical quest for the essence of a thing never considers whether the human element of fear is part of the problem; instead, the focus has always been to unravel and lift the veil from the world of appearances by either recognizing the imperfection of perceptual engagements, or by acknowledging that the objective world is unreachable and unknowable.

But fear is the penultimate human emotion of irrational masking; and when an individual has a physical or psychiatric condition such that this medical condition begins to deteriorate and debilitate, and impacts upon one’s workplace relationships, social engagements and family security, the exponential magnification of fear can mask the condition itself — or, at the very least, deliberately cover the symptomatologies which trigger alerts daily.  But the underlying motivation prompted by fear can only conceal for a time, until a flash-point occurs where the seriousness of the medical condition exceeds the ability of fear to mask; and when that crisis-point reaches fruition, the condition itself becomes a point of crisis.

Yes, fear can mask for a time; man has the unfathomable capacity to lie not only to one’s self, but to lie to the self which lies.

For Federal and Postal employees who walk with fear because of financial and workplace security, who are beset with a progressively deteriorating medical condition, fear is a factor of which one must contend.  Filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, is a great leap of faith.  But faith should first be reinforced with information; and so the best medicine to treat fear is to initially gather the information on the entire process.

Preparing, formulating and filing for Federal Disability Retirement; understand, reflect, and battle against the fear of ignorance.  That is the proper methodology and approach.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: To Just Walk Away

One suspects that the U.S. Office of Personnel Management “plays the odds” and finds that a certain percentage of the population will accept at face-value the stated basis of a denial of a Federal Disability Retirement application, regardless of the lack of substantive basis for such a denial.  And, indeed, there will be a segment of the population, within the entire universe of Federal and Postal employees who submit a Federal Disability Retirement application, who will simply feel discouraged, and simply give up.

This is precisely why, in many administrative processes, there is an automatic first-level denial.

FERS & CSRS Disability Retirement is somewhat different, and one would assume that there is no internal mechanism of automatically rejecting a submission at the initial stage of the application, because the merits of each case should be determined at each stage of the process.

Nevertheless, it would be “prudent” for the U.S. Office of Personnel Management to take such an approach, if only to test the determination and seriousness of each applicant.  This is not to allege that such an approach is deliberately engaged in by OPM; rather, whether on a valid basis or not, there is nevertheless the likelihood that a certain percentage of Federal Disability Retirement applicants who are denied at the first stage, will simply walk away, not fighting for a benefit which they may well be eligible for.

And, of course, “walking away without a fight” is certainly an option for everyone; not a very viable one, and one which should not be recommended.  The sad part, of course, is that the very basis for not having “the fight” to contest an OPM denial, is often the same basis for which the Federal or Postal worker filed for Federal Disability Retirement benefits in the first place:  the medical condition itself, and the debilitating manifestations which have weakened the human spirit to persevere.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Employee Attorney

 

Medical Retirement Benefits for US Government Employees: Insufficiency Test

The validity of allegation that there is an insufficiency of X is partly determined by an objective standard, and partly (if not mostly) derived from a judgment as to the nexus between X and the standard to be applied.

In Federal Disability Retirement cases the basis of most Federal Disability Retirement denials is that there is an insufficiency of proof, whether as to issues of light duty or accommodation, medical opinion, medical documentation; questions about deficiency of service; and multiple other specified areas — but all will ultimately be determined to have a “lack” of something such that it fails to meet a “sufficiency” test.  But sufficiency can only be determined by comparing what exists (i.e., what has been previously submitted to the Office of Personnel Management) to what the legal standard of proof requires.

Further, since the overriding legal standard is based upon a “preponderance of the evidence”, which requires that something be ‘more likely than not’, the narrow gap between human involvement in the judgement of sufficiency, and a truly objective basis for such insufficiency, is susceptible to human error.  Because of this, appearance of quantity in addition to quality is often what is required.

As decisions by OPM are rendered by a wide range of people whose judgment, competence and approach in evaluating a case differ greatly, it is unfortunately necessary to take into consideration the foibles of human error.  Until a precise algorithm is invented which applies fairly and accurately in all cases across the board, we must continue to deal with human beings, the their errors of judgment.

Sincerely,

Robert R. McGill
FERS Disability Lawyer

 

Medical Retirement Benefits for US Government Employees: Denials

Denials issued by the U.S. Office of Personnel Management in a Federal Disability Retirement application are informative in multiple ways; while based upon templates for the most part, they often make arguments which are neither based upon the legal precedents which currently prevail, nor on standards of proof which are applicable.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee is expected to submit a Federal Disability Retirement application based upon the standard of proof and legal requirements which are current, applicable, and relevant.

Yet, if a denial is issued by OPM — one that is based upon language which is clearly contravening the statutory standards of legal precedents — that requires things which are not truly required, then what does one do?

It is tantamount to proving a negative:  how does one prove that a murder did not occur?  Or that a man did not say something asserted to have been stated?  Or that one’s Federal Disability Retirement application does not contain “compelling” medical evidence, or here’s a better one:  “According to AMA Guidelines, you do not have more than a 5% permanent disability rating…”  What?  For OWCP purposes, that may hold some meaning or relevance, but for a Federal Disability Retirement application, it means absolutely nothing.

The answer to the question, What does one do?  What one must — go to the next level, with the proper legal tools in hand, to answer such nonsense.  Or, better yet, start at the first level with some preemptive legal arguments.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: A Word about Approvals

It is the general policy of the Office of Personnel Management to withhold releasing of information concerning a pending Federal Disability Retirement application, whether under FERS or CSRS, via telephone.  

This is a good policy, in that a potential conflict and mistake can occur between an action taken on a case (i.e., an approval or a denial) and what is inputted into the computer system; or, as has been the case in the past, where the secretary or receptionist divulges the decision over the telephone — and is mistaken.  

Generally, one must wait for the Office of Personnel Management to send the hard copy of the decision on a Federal Disability Retirement application.  Receipt of the actually letter of approval or denial of a Federal Disability Retirement application, whether under FERS or CSRS, from the Office of Personnel Management, constitutes the official notification of the decision on a pending Federal Disability Retirement application.  If the Federal or Postal employee’s representative or attorney receives the decision of approval or denial from the Office of Personnel Management, that also constitutes official notification.  

The problem of telephone notification of an approval is that, if what is told over the telephone differs from the actual notification and decision rendered by the Claims Representative who is handling the case, then obviously that would be an upsetting matter to the Federal or Postal employee who is anxiously awaiting the decision.  

For the Federal or Postal employee who has waited many, many months for a decision on a pending Federal Disability Retirement application from the Office of Personnel Management, waiting a few more days in order to receive the actual approval letter (or a denial letter, whichever the case may be) is well worth the wait.  

It is better to wait a few more days to get the decision in person.  As the old adage goes, “A bird in hand is worth two in the bushes”…

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Expectations

One would expect that there would be a correlative input of effort on the part of the Office of Personnel Management, something like a 1-to-1 ratio of effort reflecting the amount of care put into formulating, preparing, and submitting a Federal Disability Retirement application under FERS or CSRS, with the ratio being met by a corresponding amount of effort on the part of OPM.

If only for the sake of appearance; to give some justification, some acknowledgement of the medical reports submitted; of the time expended in preparing the Applicant’s Statement of disability, etc.

One would expect — or at least, should expect, in a denial letter issued by the Office of Personnel Management, enough of an indicator that the OPM Representative reviewed all of the medical reports, and attempted to remain objective.  Yet, more often than not, a mere paragraph is issued, with a great percentage of that paragraph a regurgitation of a template from multiple other decisions.

Expectations are often nothing more than an imaginary line where one perceives a professional standard to be; but, more often than not, only to have the expectation set at a standard of performance too high to achieve.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Great Expectations

The title of this blog, borrowed (of course) from Dickens’ great novel, refers to the contrast between the reality of X and the mental projection of what should be, in the mind of an individual.

What does this have to do with filing for Federal Disability Retirement benefits under FERS or CSRS?  When an application for Federal Disability Retirement benefits under FERS or CSRS is carefully prepared, meticulously gathered, painfully delineated, and thoughtfully prepared, one has the (logical) expectation that, when it is reviewed and evaluated by the Office of Personnel Management, that a certain minimal level of intellectual discourse would be engaged in.

In other words, it should not be an unrealistic expectation that, if it is denied or disapproved, that the person who is writing the letter of denial would provide some fundamental delineation of reasons; some intellectual discussion addressing certain aspects of the Federal Disability Retirement packet; even (God forbid) a revelation of some logical discourse with a legally viable basis in making an argument.

Alas, such an expectation would be too much to bear.  The great chasm between the reality of the process and the expectation which one has, is one which will lead only to disappointment.  If a denial of a Federal Disability Retirement application comes, it is a rare event that the Office of Personnel Management engages in any justifiable discussion.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reconsideration Response — Refrain from Reflexive Response

When a denial is received for an Application for Federal or Postal Disability Retirement benefits under FERS or CSRS, sometimes they are replete with comical “errors” and omissions.  Thus, anywhere from mistaken identities, to wrong job identifications, to the wrong doctors named; from medical conditions which were never claimed, to diagnostic tests and surgeries which were never submitted; these are just some examples of errors and omissions which one might find in the body of the “Discussion” in an OPM denial letter.

The reflexive temptation is to put together a string of harangues and accuse the OPM Representative of incompetence, incoherence, ineptitude, and inability to perform the essential element of his or her job.  Such a reflexive response would be the wrong tact to take, however.  One should refrain from making such “ad hominem” attacks.

Instead, the better way to go about it would be to politely point out the major errors, the omissions of any medical or other substantiating documentation, in an understated way, then to argue the main points that need to be argued to rebut the denial letter.  While the former methodology may make you feel good, in the end, it is an approval which will prove to be of lasting elation.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Continuing Patience

It is difficult to be patient.  The Office of Personnel Management, in reviewing and evaluating each case, takes its time.  One can attempt to “read into” each day, as to whether the longer wait is more beneficial than a decision which is to be made in short order.  Calling to check on the “status” of the case can have a negative effect upon a decision, although it is not “supposed to” do so. 

Often, the response by OPM’s representative is that a decision will be made “this week” or “next week” or “by the end of the month”.  Time passes, and there is no decision.  These past couple of weeks, OPM has sent out many decisions that were long-in-waiting.  When the decision is a favorable one, then of course the burden of the wait is suddenly lifted.  When the decision is a denial, then the response is often one of anger, disbelief or discouragement.  Once the emotions are set aside, then one must accept the reality of further waiting.  Yes, patience is a virtue, and Federal and Postal employees must be the virtuous of all people.  But those are empty, vacuous and meaningless words when one must wait to see what the future holds. 

Sincerely,

Robert R. McGill, Esquire