Federal Employee Medical Retirement: The Crucial Reconsideration Stage

In engaging the U.S. Office of Personnel Management for Federal or Postal Disability Retirement benefits, whether under FERS or CSRS, it is important to recognize the differences between the administrative and legal stages involved.

There is, of course, the initial application stage; one cannot overemphasize the importance of proper preparation and compelling formulation of one’s Federal Disability Retirement packet, for the First Stage of the process.  However, regardless of the adequacy of one’s Federal Disability Retirement submission at this initial stage, there are going to be a certain percentage which are denied, and which therefore must be propelled into the Second Stage of the Administrative process.

This next step is often identified as the “Reconsideration Stage” in the process of attempting to prove one’s eligibility for Federal Disability Retirement benefits.  It is known as such, because at this stage, one has the right to have one’s case “Reconsidered”; in order to do that, however, you must notify the U.S. Office of Personnel Management within thirty days of the date of their denial letter, or within receipt — but one should be cautious of the latter timeframe, as it can be rather tricky, and thereby one should proceed on the assumption that the 30-day timeframe begins from the date of denial as reflected on the Letter of Denial, just to be on the “safe side” of things.  To ensure compliance, the undersigned attorney always requests the reconsideration via a trackable delivery device, so that proof of delivery can be shown if necessary.

This Second Stage of the process in attempting to become eligible for Federal Disability Retirement benefits is a crucial stage in the process, because if it is denied again at this stage, then one must file an appeal to the U.S. Merit Systems Protection Board, and put on one’s case before an Administrative Judge — a complex process which takes it out of the hands of the U.S. Office of Personnel Management and places it in an entirely separate determining entity.

While each stage of any bureaucratic process can be deemed “crucial”, it is this point of differentiation which makes the Reconsideration Stage unique:  it is the last chance before entering into the complex arena of legalese.  Thus, for those already confounded by the complexities of the administrative process, the land mines to be confronted at the Merit Systems Protection Board will only be exponentially multiplied.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Danger of the Sure Thing

The danger of any “sure thing” is that, aside from the potential reversal of fortune if the assumed certainty fails to come to fruition, the acceptance of the claim of certainty in and of itself undermines the motivational factor in the very process of attempting to reach a goal.

A recent article in the New York Times told of another high school basketball prodigy who was “destined” for greatness in the NBA, only to descend into the ranks of the “has-beens” and those who had “great potential” but somehow never realized and actualized such potential greatness.  Rare is the Lebron James in any walk of life; rarer still is the one who recognizes the distinction that a “sure thing” becomes a certainty only on the precondition that one must vigilantly ascertain and safeguard such certainty of outcome.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is often a misguided view that one’s own particular medical condition is so serious, and so debilitating, that it is a “sure thing” in the approval process with the U.S. Office of Personnel Management.

Yes, there are rare cases where the identity of the medical condition is such that it warrants an automatic approval from OPM; but such cases are few, and that is why we refer to them as cases of certainty.  The problem often rests in the fact that the sufferer of the medical condition is the same person who attempts to be a proponent of the Federal Disability Retirement application.

Certainty is clouded by judgment; when it’s your own horse in the race, one wants to judge a certainty.  When that horse is not only one’s own, but moreover, the person himself/herself is in the race itself, then a clouded judgment becomes a misguided view of how the world operates.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Slam-Dunk Case

I have represented more people at the Reconsideration Stage of the Federal Disability Retirement process for CSRS & FERS employees, of Federal and Postal employees who filed the initial application on his or her own because it was thought that it was a “slam dunk” case.

That is the problem with the slam dunk case — either the individual thinks that the medical evidence is so overwhelming that little or no effort needs to be expended in order to obtain an approval from the Office of Personnel Management, or if some minimal effort is engaged in, then the problem must be that the people over at the Office of Personnel Management either did not understand the seriousness of the medical conditions, or they misread X or Y, or some other such reason.

The real problem is that there are few, if any, slam dunk cases.

Inasmuch as the applicant who is filing for Federal Disability Retirement benefits personally feels the pain, discomfort, and debilitating nature of the medical conditions from which he or she suffers, therefore it is often (wrongly) assumed that the same feelings can be imparted upon the person reviewing the Federal Disability Retirement application.

One must always keep in mind, however, that an OPM Disability Retirement application under CSRS or FERS is a paper presentation.  As such, the effort of compiling, arguing, persuading and explaining must always be engaged in.  There are no such cases as slam dunk cases.  If there are, I haven’t recently come across one.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Approaches & Decisions

With each case, a story must be told.  If the case gets denied, normally my approach is not so much that a “narrative” must be retold, but rather, I tend to view the Reconsideration Stage of the Federal Disability Retirement application process more as the “battle” to set the proper stage — to either win at the Reconsideration Stage, or to win at the Merit Systems Protection Board stage.  What is interesting is that, within the three stages of the process (excluding the appellate stages of the Full Board Review and the appeal to the Federal Circuit Court of Appeals), the need to tell a coherent, empathetic, sympathetic and compelling story of a dedicated and loyal Federal employee who suffers from a medical condition such that it impacts him or her from performing one or more of the essential elements of one’s job, comes “full circle”. 

I approach the “Reconsideration Stage” of the Federal Disability Retirement process under FERS & CSRS as the “center point” of battle, in many ways, precisely because it is the step just before taking it before an Administrative Judge at the Merit Systems Protection Board.  It is the place to give the Office of Personnel Management a subtle warning:  This is your last chance before the destiny of the Disability Retirement Application is taken completely out of your hands and control, and placed into the hands of an Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Reconsideration Stage

Alas, a batch of decisions has obviously been sent out to many disability retirement applicants in the last couple of weeks, because I have gotten many calls from those who attempted to try and obtain disability retirement benefits without legal representation.  In reviewing the denial decision from the Office of Personnel Management, many who have called have observed some rather amusing things, such as:  “It seems like most of the decision is just boilerplate language”; “There were so many typos and grammatical errors in the decision”; “The OPM specialist referred to a doctor whom I never treated with”; “The decision said that I suffered from medical condition X, which I never claimed!”   “To err is human…” is a true enough adage; but to point out the mistakes of an OPM decision for the sake of pointing out the mistakes, is a pointless exercise.

Do not fret; yes, much of the language of a decision is indeed boilerplate; OPM representatives are human, and do indeed make mistakes, and insert names of doctors and medical conditions which are not part of an applicant’s narrative; and other mistakes as well.  But don’t overlook the obvious by fuming about such mistakes:  if your disability application was denied, you need to take the decision seriously, identify the substantive issues which were the primary basis for the denial; ignore the tangential errors made; then proceed to address the concerns brought to light by the Office of Personnel Management.  Time is of the essence, and those 30 days to file for reconsideration, and the additional 30 days given to obtain further medical documentation, come and go quickly.  Don’t fume about irrelevant details; focus upon strategizing a substantive approach to getting your disability retirement application reconsidered, and approved.

Sincerely,

Robert R. McGill, Esquire

OPM FERS & CSRS Disability Retirement: Answering OPM’s Concerns at the Reconsideration Stage

Beyond making sure that you have enough time for your treating doctors to provide you with updated medical documentation at the Reconsideration Stage of the process, an applicant must take care in addressing the the underlying concerns expressed by the Office of Personnel Management.

Unfortunately, this is a stage in the process which will probably require an attorney who is knowledgeable in the area of Federal Disability Retirement law. Why? Because the Specialist who denies an application for disability retirement will often provide a “laundry-list” of purported evidence which the Specialist claims would be “helpful” in proving your case. The laundry list provided is often a mis-statement of the law. It is up the the attorney to point out to the Office of Personnel Management what the correct statement of the law is; at the same time, however, it is important to “read between the lines” of a denial letter, and address some of the underlying “missing links” which provided the basis for the denial.

This is where the assistance of an attorney can be crucial. For it is the job of a disability retirement attorney at the Reconsideration Stage to do three things: (1) point out the correct law, (2) provide updated medical documentation to address the concerns of OPM in the denial letter, and (3) correct any errors that the applicant made in the initial stage prior to having contacted a disability retirement attorney.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Reconsideration Stage

Sometimes, restraint is the better part of a response, as opposed to immediately responding. If an applicant’s disability retirement is denied at the initial stage of the process, an individual has thirty (30) days within which to file a Request for Reconsideration.

Upon filing such a request, however, the requestor then only has thirty (30) days to submit additional medical documentation to support the reconsideration request. Thus, take the following scenario: A person receives a denial on day 1; he files a Request for Reconsideration on day 2; he has until day 32 to file supporting medical documentation. If, on the other hand, the requestor had waited until day 25 to request reconsideration (while, in the meantime, on Day 2, he had written to the doctor for additional input/response/records, etc.), then the individual essentially has 45 days to make his case, as opposed to 32 days.

When dealing with doctors, it is often a pragmatic methodology to do it this way, because doctors rarely respond within 30 days. Thus, it is wiser to refrain from responding immediately; it is sometimes difficult to show restraint, because one’s natural impulse is to quickly file a request for reconsideration. For pragmatic reasons, it is almost always better to wait.

Sincerely,

Robert R. McGill, Esquire