Disability Retirement for Federal Government Employees: Someone Else’s Argument

Have you ever sat with company at a dinner table, and engaged in a conversation where it appears as if you are continuing someone else’s conversation?  Or your presence is merely a substitute for an extension of a previous debate or discussion?  Where a topic is brought up, and immediately a barrage of critical attacks — of arguments you have never made, and of statements you don’t recall disseminating (and where this is only 5 minutes into the salad and you’ve barely tasted the first glass of wine)?

The problem with unfinished business is that the transference of what one wanted to say is normally unloaded upon the wrong subject.  Conversations, debates, forums of intellectual exercises in linguistic battles — it is a rare person who has been able to convey the full force of one’s collective thoughts and beliefs on the matter, and it is more often the case that one leaves with the regretful remorse of, “I wish I had brought that point up…”  But rarely do second chances present themselves in a satisfactory follow-up forum; unless you are the unfortunate object for an unexpected dinner invitation.

In responding to a denial of a Federal Disability Retirement application with the U.S. Office of Personnel Management, whether under FERS or CSRS, the applicant — through his or her Federal Disability Retirement attorney — needs to understand that the person who issues the denial will not be the same person who will review any additional submissions or legal arguments at the Reconsideration Stage.

It will be reviewed, in legal parlance, de novo.  As such, while the basis of the denial as issued by the Caseworker at OPM at the First Level should be taken into consideration, one should approach the case in light of the following question: To what extent will the Reconsideration Branch care as to the original basis of the denial of the first caseworker?  If it is being reviewed de novo, the approach should be to go over all of the elements — and to reinforce and amend those weak points, some of which may overlap what the first caseworker pointed out, others which may not.

It may not be the best approach to argue to a dinner guest who wasn’t present at the first round of arguments; the points you are trying to make may not be heard because the bell has already rung, and the fighter in the second round has been replaced with someone upon whom you have never previously landed a punch.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Different Denials

After having formulated, prepared and filed a Federal Disability Retirement application under FERS or CSRS, the period of long waiting ensues with the review process of the Office of Personnel Management (having survived the waiting process through the Agency).  

At this initial stage of the application, the Federal or Postal applicant will be forced to wait (anxiously) for a decision by OPM.  Thus, when the Office of Personnel Management makes a decision at the First Stage, and that decision is a “denial” of the Federal Disability Retirement application, there is a spectrum of possible responses — immediate, emotional, angry, frustrated, etc.  

Instead, however, the proper response is to recognize that this initial denial is merely part of a greater process which involves many steps, procedures, responses and replies.  Indeed, part of the reason why a Federal or Postal employee feels the pressure and anxieties is because one tends to view the application process as a “one-time” deal — where submission of an application should be reviewed by OPM and an approval is granted.  This can be true — but should be viewed as merely an anomaly, and not the standard.  

While having a Federal Disability Attorney prepare the application for Disability Retirement should increase the chances of an approval at any level of the process, it is nevertheless first and foremost a process involving multiple steps and stages, with potential pitfalls and denials throughout.  Thus, a Federal Disability Retirement application may be initially denied, then responded to, then denied a second time at the Reconsideration Stage of the process, and require a further response.  

Different denials require different responses, not because they are not all part of the same process (I know, the double negative gives one pause), but because each denial is given by different departments and personnel at the Office of Personnel Management. Remember, one must prove one’s eligibility for Federal Disability Retirement benefits from the Office of Personnel Management, and proof means that there is the potential for an adversarial component of the process.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Second Denial

The Second Denial — a denial from the Office of Personnel Management of a Federal Disability Retirement application under FERS or CSRS — often fails to annotate or delineate an extensive basis for the denial, but simply reiterates that they believe the original decision was correct based upon a re-review of the application.  

It means nothing more than that another Claims Representative in a separate “branch” of the same Agency decided to support the original Claims Representative in denying the application.  No greater validity is obtained merely because two different people looked at the application, as well as any additional medical or other supporting documentation, and came to the same conclusion.  Two people can be wrong about the same issue, and indeed, OPM is normally wrong about issues concerning Federal Disability Retirement applications, precisely because many OPM Representatives (if not most) do not keep up with the Court opinions and evolving case laws rendered by the Merit Systems Protection Board and the Federal Circuit Court of Appeals cases.  Moreover, most Claims Representatives at OPM support their fellow Claims Representative.  

A disabled Federal employee or an injured Postal worker should not become discouraged merely because a Second Denial has been issued.  Being wrong twice does not translate into a right decision.  This is not mathematics, where two negatives result in a positive conclusion.  It is merely the next “step” in the process of obtaining a Federal Disability Retirement approval under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: When to file for an MSPB Hearing

Filing for Federal Disability Retirement benefits under FERS or CSRS is what is generically known as falling under “Administrative Law“.  That is, Federal and Postal employees must undergo the administrative process of filing with a Federal Agency, the Office of Personnel Management, in an attempt to prove by a preponderance of the evidence that one is eligible for, and therefore entitled to under the law, Federal Disability Retirement benefits under either the Federal Employee’s Retirement System (FERS), the Civil Service Retirement System (the “older” system, or CSRS), or its hybrid, the CSRS-Offset.  

If the Agency which makes the decision on eligibility denies a Federal or Postal employee’s application twice (both at the Initial application Stage of the process, then again at what is termed the “Reconsideration Stage” of the process), then the case can be appealed to an Administrative legal forum specifically set up to hear such cases (as well as many other types of cases involving Federal and Postal employees).  In order to file with the Merit Systems Protection Board (the “MSPB”), one must have received a “final denial” letter from the Office of Personnel Management — and, by “final”, is merely meant the “second denial” letter.  Thus, in order for the Merit System Protection Board to consider an appeal for one’s Federal Disability Retirement benefits, the Federal or Postal employee must have been denied by the Office of Personnel Management on the first two tries — first, with the Initial Application, then for the Reconsideration of that application.  Only then may a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS, CSRS or CSRS-Offset file an appeal with the MSPB.

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

CSRS & FERS Disability Retirement: Denials II

It is, indeed, frustrating when a governmental agency makes life-impacting decisions which seem to be spurious and capricious. A review of a disability retirement application by the Office of Personnel Management is supposed to be thorough, with sound reasoning and a fair application of the law. And, in all fairness, the majority of cases appear to meet that standard. It may well be, of course, that since all approval letters of disability retirement applications are standard templates, with boilerplate language and instructions, and since most of my cases are approved at the first level, the impression left is that OPM does a good job in reviewing the cases.

When a case is disapproved, however, it is often the case that the denial is based upon factors which defy logic, which appear to have little or no rational basis, and which selectively focuses upon a narrow reading of the medical reports and records. Thus, often the OPM Representative will take a statement out of context, and declare that the doctor stated X when a full reading of the medical report shows that the doctor actually stated Y. This is unfortunate, and does not reflect the careful review, analysis, and fair rendering of a decision made by most OPM representatives, but occurs often enough to be of concern. On the bright side, however, is that there is always the ability to take it completely out of the hands of OPM, after a second denial — and allow an administrative judge to review it objectively, at the Merit Systems Protection Board. That is why the MSPB was created and exists — to have a third party, objective body review the decision-making process of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire