CSRS & FERS Medical Disability Retirement: The Psychological Process

One of the reasons why the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, should view the entirety of the administrative process as just that — a “process” as opposed to an entitlement to benefits — is because (a) that is in fact what it is and (b) to fail to view it from that perspective would be to refuse to adequately prepare for the long and arduous procedural pitfalls which are inherent in each case.

This is not an entitlement where a specific trigger of an event results in the automatic calculation and issuance of compensation.  Reaching a certain age does not result in the granting of Federal Disability Retirement benefits (although it may end it and be recalculated at age 62); attaining a certain number of years of service will not qualify one for Federal disability Retirement benefits (but again, upon reaching age 62, it may result in a beneficial calculation of benefits for having a greater number of years of service).

Rather, Federal Disability Retirement is an administrative, legal process in which one must prove by a preponderance of the evidence that one is (1) eligible, in that one meets certain minimum requirements, such as 18 months of Federal Service under FERS, or 5 years under CSRS, and (2) entitled, by proving that one has met the legal requirements under the statutes, regulations and case-law.

By having the proper psychological perspective, one is better able to prepare for the long haul before starting the process of preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Obtaining, Maintaining and Preserving

Just as preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is an administrative process — as opposed to an “entitlement” where a simple act of filing or meeting an automatic requirement makes one eligible and entitled — where one must prove by a preponderance of the evidence that the Federal or Postal employee meets all of the legal criteria for eligibility; similarly, once the Federal or Postal employee obtains the Federal Disability Retirement benefits, it is a “process” which one must be prepared to embrace, in order to maintain the continuing viability of one’s Federal Disability Retirement benefits, and further, in order to preserve the right to retain and continue to receive the Federal Disability Retirement benefits.

That is why it is important to understand the entirety of the administrative process — not only in obtaining the benefit itself, but to ensure future compliance with the statutes, regulations and case-law.  While legal and on-line resources are certainly available and abound with information, ultimately those very resources must be applied; and in order to apply them, they must be interpreted by someone who understands the entirety of the administrative process.  “Trial and error” is often not the best approach in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, if only because the “error” may outweigh the benefit of the trial itself.

As such, it is advisable to consult with an OPM Disability Retirement attorney  who can guide one through the administrative process — not only at its inception, but in its continuing maintenance and retention of this benefit called, Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire
OPM Medical Disability Retirement Attorney

 

Federal Worker Disability Retirement: Responding to a Denial

Preparing, formulating and filing for a Federal Disability Retirement application under FERS or CSRS must necessarily involve the preparation for a response to a denial, issued by the Office of Personnel Management.  To resist and avoid contemplating such a potential event is to disregard an inevitable probability.  

As has been acknowledged before, most Federal and Postal employees believe that his or her Federal Disability Retirement application which has been submitted to the Office of Personnel Management, is a “slam dunk” case; that, because of the severity of the medical condition experienced, and its “obvious” impact upon one’s ability/inability to perform one or more of the essential elements of one’s job, there is simply no conceivable way in which OPM could deny the application.  But that life only presented a singular perspective on all issues; dictatorial control of all ideas would certainly simplify the world; conceptual certainty without opposing views would make irrelevant the necessity of the entire judicial system.  But that is not how life operates.  

To the question:  What can we do about conflicting ideas?  Is the answer:  That is why there is in place a procedural mechanism which often involves the need for a Judge to render a decision adjudicating the dispute.  Responding to a denial from the Office of Personnel Management is the first step to engaging in the procedural mechanism of the resolution of disputed perspectives.  OPM has their job; the Federal or Postal employee has his or her job to do.  

Whatever the substantive basis for the dispute, what is necessary is first and foremost to respond to the Office of Personnel Management, and before that, to prepare for a denial, and be ready to respond appropriately.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The Timeline

The timeline is an extensive one.  Beyond the period from start to finish of the initial process (6 – 8 months minimum for just the First Stage of the process, assuming everything goes “right” in receiving prompt responses from the medical providers, obtaining the records; having the agency process everything in a timely manner, etc.), there is then the possibility of a glitch in the process on the part of the Office of Personnel Management (OPM).

Filing for Federal or Postal Disability Retirement benefits from OPM must necessarily entail a recognition and acknowledgement of being prepared for a long and arduous wait.  Then, of course, if the case is denied at the First Stage of the process, one must expect a minimum of 90 – 120 days for the Reconsideration Stage of the process; if it is denied a second time by OPM, then a minimum of 120 – 150 days at the Merit Systems Protection Board.

Further, if a Petition for Full Review is filed, it can often taken 10 months  5 years.  And an appeal to the Federal Circuit Court of Appeals?  You don’t even want to consider that…

As such, when one is preparing, formulating and filing for Federal Disability Retirement benefits, the operative focus should be upon the first conceptual link in the sequence — “preparing”.  The first order of business in a disability claim is in mentally preparing for the long haul.  I will reiterate an oft-used quip:  Patience is a virtue; ergo, Federal and Postal employees filing for Federal Disability Retirement benefits under FERS must be by definition be the most virtuous of people.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Each Step is a New Review

There are only one of several ways in which a Federal disability retirement application under FERS or CSRS can be lost: Either a Judge at the Federal Circuit Court of Appeals renders a final opinion denying a Federal or Postal Employee his or her disability retirement, or the Federal or Postal employee simply gives up.  As to the former:  Even then, if the Federal or Postal employee has not been separated from service for more than one (1) year, he or she may file a new application for disability retirement. 

Thus, we are left with the latter:  a disability retirement applicant simply gives up.  By “giving up” is meant:  the next step is not taken; the time-frame within which to file a Request for Reconsideration or an appeal is allowed to “lapse”; or, if an appeal is taken, it is done with resignation and surrender.  Nothing good can come out of such an approach.  Each step of the process in a Federal disability retirement case must be attacked aggressively.  Each step must be looked at as a potential place for a new review. Think about it in reverse:  If you don’t take the next step, then nothing good will certainly happen, so what is there to lose?  Indeed, there are times when a client hires me to file a Request for Reconsideration or an appeal to the Merit Systems Protection Board, and the mere filing of my appearance into the case persuades and convinces the OPM representative to reverse course and grant the disability retirement application.  The point of making such a statement is not to “brag”, but to make the larger point:  good things can happen only if you affirmatively act.  Otherwise, you are left with what King Lear said to his daughter Cordelia, that “nothing can come from nothing”. 

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Long, Longer & Longest View

I have often spoken of the need to take the “long-term” view in filing for Federal Disability Retirement benefits under FERS & CSRS — both in terms of having patience for the inherently long process in terms of time, as well as in terms of preparing a case for not just the First Stage of the process, but further, for the second Reconsideration Stage, as well as for an Appeal to the Merit Systems Protection Board.  This “long-term” view is meant to prepare a potential applicant for what it means to file for Federal Disability Retirement benefits; to not be overly concerned if you are denied at the first, or even the second stage of the process; and to be prepared financially to weather the “long haul”.  In short, it is meant to prepare the potential applicant for the long, and longer, view of filing for Federal Disability Retirement benefits. 

It is also necessary, however, to prepare one’s self for the “longest” view — that of maintaining and keeping safe the disability retirement benefits once it is approved — by preparing to be randomly selected every two years or so with a periodic “review” with a Medical Questionnaire.  The Medical Questionnaire is an innocuous looking form, asking for an “update”, and giving you 90 days to respond.  Be cautious.  Be aware.  Take it seriously.  Don’t wait for the 89th day to begin responding to it.  None of my clients who have gotten his or her Federal Disability Retirement benefits has ever lost it; people who have gotten Federal Disability Retirement benefits on their own and have later lost the benefit, have come to me to regain it; I have been successful in recovering the benefit, in every case.  However, it is not always easy — if only because the disability annuitant initially thought that it was an “easy-looking” form.  Preparation for the “longest view” begins not upon receipt of the Medical Questionnaire; it begins at the very, very beginning — when one first decides to file for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Disability Retirement: The "Process"

In my last writing, I briefly discussed why filing for Federal Disability Retirement benefits is, and must be looked upon as, a “process” as opposed to a mere “filing” with an expectation of an “automatic” approval.  This is because there is a legal standard of proof to be met, based upon a statutory scheme which was passed by Congress, and based upon a voluminous body of “case-law” handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  With this in mind, it is wise to consider that, because it is a “process” with two administrative “stages” to the process, as well as an Appeal to an Administrative Judge at the Merit Systems Protection Board, then potentially to the Full Board via a Petition for Review, and finally to the Federal Circuit Court of Appeals — as such, each “step” in the process would naturally have a different and “higher” level of the laws governing Federal Disability Retirement. 

Because of this, it is often a frustrating experience for applicants, because a rejection or denial at the First Stage of the process often reveals the utter lack of knowledge by the OPM representative of the larger compendium of case-laws that govern and dictate how disability retirement applications are to be evaluated and decided upon.  Often, the so-called “discussion” of a denial letter is poorly written, meandering in thoughtlessness, and self-contradictory and with unjustifiable selectivity of statements from a medical report or record.  Such poor writing reflects a first-level decision-making process, and can be a frustrating experience upon reading the denial letter.  It is good to keep in mind, however, that the entire application procedure is a “process”, and each level is designed to have a greater level of competency and knowledge in the law.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire