OPM Disability Retirement: Reconsideration Decisions

Types of reconsideration decisions denying an applicant his or her Federal Disability Retirement benefits under FERS or CSRS can and do span the entire spectrum, depending upon the OPM representative who writes up the decision:  from half a page (barely giving a passing, respectful review to a packet which took multiple hours to put together) to over 3 pages long (in the “Discussion Section”); from merely listing general principles of law and generalized, template-like denials to apparent detailed (but very selective) references to various medical reports submitted by the applicant as part of the disability retirement packet — they all boil down to the same thing:  a denial at the initial application stage.

Often, an initial reaction to the denial encompasses a myriad of responses, ranging from incredulity, to resignation, to anger, to indignation.  Set aside the emotionalism.  Further, there is often the reaction to that “one piece” of medical information which the applicant believes should have turned that “denial” into an “approval” — that “one piece” of medical note, statement, sentence, or paragraph which the OPM representative conveniently disregarded or chose not to reference.  Don’t ruminate over it.  It may well be that it was deliberately disregarded; it may even have been overlooked.  More than likely, the OPM representative was fully aware of it, but decided to selectively choose his or her basis as the more “important” and “substantive” evidence, forming the core rationale of the denial.  Don’t waste time.  More work is needed — both medical as well as legal.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Standard Forms Do Not Mean “Standard Responses”

The problem with “Standard Forms” is that they often appear to solicit “standard responses”, and in a Federal Disability Retirement case under the Federal Employees Retirement Systems (FERS) or the Civil Service Retirement System (CSRS), nothing could be further from the truth.  Indeed, it is often because a Federal or Postal employee/applicant who confronts and begins to fill out SF 3112A, Applicant’s Statement of Disability, the very “blocked” appearance of the form, and the constricting questions themselves, makes it appear as if a “standard response” is required.  Don’t be fooled.

By way of example, take a “special animal” — that of a Federal Aviation Administration Air Traffic Controller who must take a disqualifying medication, loses his or her medical certification from the Flight Surgeon, and thinks that filing for Federal Disability Retirement benefits is a “slam dunk”.  Nothing could be further from the truth.  Or, a Customs & Border Patrol Agent who goes out on stress leave, or suffers from chronic back pain.  Are there “standard responses” in filling out an Applicant’s Statement of Disability?  There are certain standard “elements” which should be considered in responding to the questions, but don’t be constricted by an appearance of “standard responses” to a “standard form”.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: As Strong As the Weakest Link

Have you ever heard the phrase, that “X is only as strong as the weakest link”?  What does that mean?  When applied to Federal Disability Retirement applications, it has significance and application on multiple levels.  Filing for Federal Disability Retirement benefits under FERS and CSRS has multiple, and almost an infinite amount of, potholes, dangers, traps and landmines, both hidden and apparent — and that is from the viewpoint of the attorney.  I can only imagine what it is like for the Federal or Postal employee who thinks as follows:  I have a serious medical condition; there is a benefit called “disability retirement”; let me make copies of my medical records, fill out the forms, and submit it.  I should get it with no problems.  I get telephone calls almost on a daily basis from people who say, “I can’t believe that the Office of Personnel Management disapproved my claim.  What did I do wrong?”  Often, it is the Office of Personnel Management that “did something wrong”, and it is up to the Attorney to point that fact out. 

Now, back to the original thought of this blog:  A case is only as strong as the weakest link.  As Federal Disability Retirement applications have many complex issues surrounding and central to the application and the application process, it is important to make sure that even the weakest link of the packet — whether it is the doctor’s report, the Applicant’s Statement of Disability, the legal arguments to be made, etc. — make sure that the weakest of the links is strong enough to withstand the selective (and often unfair) reasoning and attacks of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When to File

I still get calls by people who state that (A) they are waiting for a year before they are going to file for FERS or CSRS disability retirement, (B)  It hasn’t been a year since they have been on LWOP, but it almost will be, or (C) They are waiting to be terminated so that their year will begin.  Quiz:  Which of the above (A, B or C) is the correct basis upon which to decide to file for Federal Disability Retirement benefits?  Answer:  None of the Above. 

Since OPM disability retirement can take anywhere from 6 – 8, sometimes 10 months to get (beginning the time-sequence from the time a doctor is contacted to provide a medical report, to putting the entire packet together, to getting it to the Agency Human Resources Personnel, to getting it to Boyers, PA, to getting it to Washington, D.C., to getting an initial approval, etc.), it is:  A.  Not a good idea to “wait a year” because there is no reason to wait; B. You don’t need to wait a year on LWOP to file for Federal Disability Retirement benefits, and:  C.  You don’t need to get terminated, or separated from Federal Service, in order to file for Federal Disability Retirement benefits. 

Let me re-emphasize:  The “1-year rule” has to do with the following:  A.  You have one (1) year from the date you are separated from Federal Service to file for disability retirement — but you can file at any time, whether separated or not, as long as it is not after 1 year after being separated from service.  B. Your medical condition must be expected to last for a minimum of 12 months — but your treating doctor should be able to tell quite easily whether or not the medical condition for which you are being treated will last that long — normally within a couple of months of treatment. 

Sincerely,

Robert R. McGill, Esquire

Common Mistakes in Filing for CSRS & FERS Disability Retirement II

Always emphasize quality over quantity of medical records & reports. A common mistake often made by unrepresented individuals is that he or she will ship off to the Office of Personnel Management a large packet of medical records, bills, appointment sheets, raw blood test results, etc. A potential applicant is always wise to try and look at it from OPM’s viewpoint: if you were a reviewer at OPM, which disability retirement application that is assigned to you would you look at on a Monday morning — the one that is 6-inches thick, or the one that is 1/2 inch thick? Further, untranslated raw test results rarely effectuate a positive response. Raw data that merely conveys numbers, unless interpreted by a physician as to the medical significance of such raw data, will not impress anyone at the Office of Personnel Management. It is the job of an attorney to use the tools of an attorney: effective and descriptive words, and to help the applicant to find the proper descriptive words to convey the serious medical conditions that he or she suffers from.

Sincerely, Robert R. McGill, Esquire