Disability Retirement for Federal Government Employees: OPM and the 7-Part Criteria

In any denial of a Federal Disability Retirement application under FERS or CSRS, the Office of Personnel Management incessantly refers to their 7-part criteria of eligibility, in making their determination as to the legal viability of a case.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons.  To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria.  To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire.  The 7-part criteria is a Catch-22 in sheep’s clothing.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Initial, Reactive Response

When a denial is received at the first stage of a Federal Disability Retirement application process, the initial, reactive response is often one of two avenues, both of which are the wrong paths to venture down:  either a Federal or Postal employee immediately writes an angry, emotional response or he/she gives up and decides that the statements made, the reasons given, etc., in the denial letter from the Office of Personnel Management are too powerful and overwhelming to overcome.  

Both responsive avenues constitute the wrong approach; neither responsive approach reflects the true state of the case.  

While there may be cases where the applicant has failed to make even a minimal attempt at meeting the burden of proof in a Federal Disability Retirement application, such a case is one in which the undersigned attorney has never encountered.  For, there is a presumption (a truthful one, I believe) that filing for Federal Disability Retirement benefits is never out of choice, but always out of necessity.  

Federal and Postal workers don’t file for Federal Disability Retirement benefits without good cause.  In a denial letter from the Office of Personnel Management, the statements made and the claims of rational discourse as to the reasons for the denial, do not mean that they are true.  Just because OPM says so, doesn’t make it true. Careful thought, reflection, and thoughtfulness of strategy in responding to an OPM denial is what is needed.  Do not react — at least, not initially.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Proper Responses

A receipt of a denial from the Office of Personnel Management to a Federal Disability Retirement application under either FERS or CSRS is always an event which is upsetting to a Federal or Postal employee, but it is “part of the process” which occurs often enough.  

If it is a second denial (where a Request for Reconsideration has already been accomplished, and the Office of Personnel Management has denied it again), then the only appropriate response is to file an appeal to the Merit Systems Protection Board (no response is required, or even appropriate, to OPM, as it is out of their jurisdictional purview upon denying it a second time).  

If it is a “first denial“, then a “Request for Reconsideration” must be filed within thirty (30) days of the date of the denial letter (one can argue that the 30 days should be counted from the date of receipt, but it is always better to be on the safe side), and if requested, an additional thirty (30) days is automatically granted in order to have sufficient time to gather and submit further documentation to rebut and answer the denial from the Office of Personnel Management.

Submission of the Request for Reconsideration, and participation in the process of having the Office of Personnel Management reconsider the initial denial, is mandatory, not elective.  By this is meant the following:  You cannot bypass or skip the Reconsideration Stage and jump directly to the MSPB; you must first get a decision on the Request for Reconsideration before the Merit Systems Protection Board will consider your case.  

You cannot get angry or reactive and declare, “I will just file an appeal to the MSPB and have an Administrative Judge look at my case”.  You must patiently go through the proper channels of justice, and respond accordingly.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Initial Application, Reconsideration & MSPB Appeals

Each Stage of the process in attempting to obtain a Federal Disability Retirement application under FERS or CSRS offers a distinct, yet similar, challenge.  Do not be fooled by responding to a “template” approach; while the Office of Personnel Management may respond in an indifferent, antiseptic manner, a Federal or Postal employee who must respond to OPM’s denial at each stage of the process must pinpoint what OPM is looking for, and respond appropriately.  Indeed, it is the distinction which one observes, which makes all of the difference in the case.  

Often, it is clear that OPM’s denial at the Initial Stage of the process, as well as a denial at the Reconsideration Stage of the process (which then compels an appeal to the Merit Systems Protection Board), is merely a regurgitation of thousands of previous denial letters, with some minor insertions which are meant to appear “as if” the denial letter has been tailored to a particular case.  

Thus, references to a particular physician’s letter, and even extrapolating a quotation from a doctor’s note or narrative (often something like, “Your doctor stated that you were recovering well from your surgery,” or “Your psychiatrist stated that the medications were working”) have the effect of personalizing a denial letter.  Yet, the remainder of the denial letter is in an antiseptic, template form, and it is clear that you are merely one of hundreds & thousands of responses written by OPM’s representative.  However, while OPM has the power to generate such template-driven denials, the individual Federal or Postal Worker must respond in an independent, individualistic manner.  It must be based upon one’s particular case, and thus the response must not be a “generic” one, but one based upon the uniqueness of the case.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Reconsiderations

When a Federal Disability Retirement application under FERS or CSRS is denied at the first stage of the process, a Federal or Postal worker who filed for the benefit has the administrative right to request that it be “reconsidered” by the Office of Personnel Management.  Once requested, the case file is turned over to the “Disability Reconsideration Branch” of the office, and will be reviewed and evaluated by a Disability Specialist — not the same person who reviewed it at the Initial Stage of the process. 

A person who has filed for Federal Disability Retirement benefits has thirty (30) days to Request Reconsideration.  While the 30-day period may arguably have some flexibility based upon when the applicant actually received the denial letter, it is nevertheless a good policy to adhere to the 30-day time-frame by counting the date of the denial letter as the “beginning” date.  Obviously, it is better NOT to be placed in a position of having to argue whether or not the applicant met the 30-day deadline.  Further, it is best to send it in via a means where confirmation of receipt can be shown.  OPM is a large bureaucracy, and things get lost in the morass of the volume of submissions.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Three Pockets

In discussing Federal Disability Retirement benefits under FERS or CSRS, it is important to keep in mind the conceptual distinction between the three “pockets” of compensatory programs or resources (and, not to confuse the issue further, but these three pockets are separate and apart from the 3-legs of the retirement stool envisioned under FERS — the FERS Retirement annuity, Social Security, and TSP).

The three primary pockets of compensatory programs include:  CSRS & FERS Disability Retirement (and its companion hybrid, the CSRS-Offset)  — all of which get recalculated at age 62 to regular retirement; SSDI (Social Security Disability which, under FERS, one must file for automatically as part of the process of submitting for FERS Disability Retirement benefits, but under CSRS, one does not need to); and finally, Department of Labor, Office of Worker’s Compensation Program.

The former two have direct interaction, inasmuch as one who falls under FERS Disability Retirement must also file for SSDI, and if both are accepted, there is an offset of benefits between the two (100% offset the first year of benefits, 60% offset every year thereafter until age 62).  The last of the three pockets, OWCP benefits, as I have stated on many occasions, is not a retirement system, but one may file for such benefits concurrently with filing for FERS or CSRS Disability Retirement benefits (but one must elect between OWCP benefits on the one hand, and FERS or CSRS retirement benefits on the other hand), have both approved, but cannot collect both concurrently.  There is an exception — and that has to do with a “scheduled award”.

While keeping these various benefits conceptually distinct can be rather confusing, it is important to understand the distinctions when contemplating filing for Federal Disability Retirement benefits under 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

Federal Employee Medical Retirement: Exaggerated Focus

Often, in preparing and filing a Federal Disability Retirement application, the distractions of collateral issues can be heightened to a level of exaggerated focus, such that it formulates and creates a perception which is beyond the proper perspective which it should be accorded.

Thus, for instance, the issue of whether or not a Supervisor’s support in a Federal Disability Retirement application is important, and to what extent. The issue of whether the Agency can undermine or subvert the Federal Disability Retirement application, etc. — these can be mere distractions which, if allowed to expand in an exaggerated vacuum, can derail a Federal Disability Retirement application unnecessarily.

On the other hand, certain issues and obstacles can indeed be exaggerated, and still maintain a perspective of “reality” — such as the support and importance of one’s treating doctor.

It is important to make the conceptual distinction between the core essentials which make up a Federal Disability Retirement application, and those which are secondary, and further, those which are peripheral to the process.

The ultimate goal is to formulate an approach, prepare an effective presentation to the Office of Personnel Management, and not get distracted from the multiple obstacles and seeming-obstacles which can divert one’s attention, and maintain a reasoned perspective throughout.

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

Federal and Postal Disability Retirement: Coherence

A Federal Disability Retirement packet must be coherent.  This may appear to be “self-evident”, but there have been many disability retirement packets which, upon a denial and a review at the Second, Reconsideration Phase of the process, lack the coherent coordination which results in a credible disability retirement packet.  Coherence results from the simple review of the entirety of the information submitted to the Office of Personnel Management:  The applicant’s personal statement; the medical records and reports; the position description; any additional statements or attachments.

Now, there are certain elements of a Federal Disability Retirement application which cannot be controlled — such as the Supervisor’s Statement (SF 3112B) and the Agency Certification of Reassignment and Accommodation Efforts (SF 3112D).  However, while one may not be able to “control” the coherence of those elements which are the purview of the Agency, there are certain steps which can be taken to preempt such uncontrollable injections from the Agency.

Regardless, it is normally not the SF 3112B or 3112D which makes for the incoherence of a Federal Disability Retirement submission; more often than not, the culprit is the Applicant him/herself.

Sincerely,

Robert R. McGill, Esquire