CSRS & FERS Medical Disability Retirement: Cornering OPM’s Malleable Stance

At the initial stage of the process identified as “Federal Disability Retirement” from the Office of Personnel Management, whether under FERS or CSRS, it is often difficult for the Federal or Postal worker to grasp the various components which must be gathered, formulated, prepared and consolidated, in order to meet the legal criteria for eligibility.

Once submitted, if an approval is received from the Office of Personnel Management, then one need not be further concerned with whether or not the legal criteria was “met” (although one should still be vigilant in doing those tasks and preparatory work in order to retain and maintain one’s right to Federal disability retirement benefits).

If a denial is received from the Office of Personnel Management, then it is necessary to file a Request for Reconsideration within the thirty (30) day time period, and begin to determine which of the multiple issues OPM has delineated as being the basis of a deficient Federal Disability Retirement application.

Some attempt to do this via a “shotgun” approach — of spraying every answer available and hoping that some of the arguments, supplemental documents, statements, etc., hit the mark in some way.  A different approach is to selectively choose those issues which appear to be central to the case, and answer the essential ones, allowing for such answers to concurrently address the peripheral points brought out by OPM.  A third approach is to identify and consolidate OPM’s alleged basis for the disapproval, consolidate the issues into 2 or 3 main points, then “corner” the arguments by addressing them, concluding that the Federal or Postal employee has addressed the concerns of OPM and therefore OPM should not be able to change them at the Merit Systems Protection Board.

While an MSPB appeal is conducted “de novo” (“anew” or “afresh”, without regard to any previous determinations), it is nevertheless an effective methodology to point out the malleability of OPM’s varying stances, and thereby effectively streamline that which needs to be proven at the MSPB level.  A leopard which changes its spots too often loses its credibility, and making sure that OPM stays in one place is a useful tool in winning a Federal Disability Retirement application, whether under FERS or CSRS.

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

CSRS & FERS Disability Retirement: OPM May Say So, But…

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.” 

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,
Robert R. McGill, Esquire