Federal Disability Reconsiderations & Additional Medical Information

The denial comes in the mail; it is a further delay, a negation of prior efforts; for many, it undermines and constitutes a condemnation of sorts, and a refusal of an affirmation sought in places and from people where none is offered.  It is, after all, another piece of correspondence which negates the negative:  the medical condition itself and the loss of one’s ability to perform one or more of the essential elements of one’s job, represented the first foundation of negation; now, a denial from the U.S. Office of Personnel Management merely confirms, via a second negation, the loss of positive forces inherent in failure and Federal bureaucracies.

But all things in life must be kept in their proper perspective, and a reaction of disproportionate magnitude must be kept in check; life is often a series of mishaps; yes, it just seems that such unfortunate events happen to certain individuals, and as the old adage goes, when it rains, it pours.  Once the initial shock of the denial is withstood, then the trepidation and cautious perusal, followed by an obsessively careful scrutiny, of the reasons for the denial issued by the U.S. Office of Personnel Management, is engaged; but the futility of such efforts will become apparent.

The monotony and disinterested voice behind the volume of verbiage and almost bellicose verbosity becomes more than apparent: either the administrative specialist at the U.S. Office of Personnel Management did not read the medical file or, more likely, selectively chose to extrapolate statements and findings out of context in order to justify the denial of one’s Federal Disability Retirement application.

At this Second Stage of the process of trying to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether the Federal employee is under FERS or CSRS, it matters not what the words say with respect to the denial issued by OPM; the file is immediately transferred to a general, unassigned file, awaiting further instructions from the person to whom the denial has been issued:  if left unanswered, the file will disappear within the cauldrons of bureaucratic warehouses; if a Request for Reconsideration is timely filed, then it will ultimately be assigned to someone in the Reconsideration Division at OPM; but, in either case, it is no longer the responsibility of the OPM representative who issued the denial, and no amount of phone calls, venting or sending of additional information to that person will make a whit of difference, until (a) the Request for Reconsideration is timely filed, and (b) the Federal or Postal employee addresses some of the concerns brought up in the denial itself.

The Reconsideration process itself is fraught with dangers and potential pitfalls; it confirms that perhaps the Federal or Postal employee should have sought the advice, counsel and guidance of an attorney who specializes in Federal Disability Retirement law, but moreover, as most mistakes are correctable, it may be a wise avenue of choice to seek legal assistance, finally.

In any event, time factors must be considered, and the time lost today by extension of a denial, further confirms the oldest adage of all, that being penny wise is to be pound foolish,  a saying that is often attributed to Benjamin Franklin, but can be traced to those earlier.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: “It May Sound Good”

There is the statutory legal criteria which is mandated by law, by case-law, and by regulatory dictum as to the proper application of review in making a determination on a Federal Disability Retirement application, whether under FERS or CSRS.  Yet, the question is whether or not the Office of Personnel Management has applied the proper legal criteria in making its determination, and the answer to such a question can only be evaluated based upon the language which is utilized by OPM in its denial letter. 

An approval letter issued by the Office of Personnel Management is entirely unrevealing, precisely because it is simply a template letter advising the approved Federal Disability Retirement annuitant of the next steps to follow.  However, when a denial letter is issued by the Office of Personnel Management, often the Claims Representative will insert language which “sounds good” and proper, and even convincing — but ultimately, wrong as far as the proper application of the law is concerned.  For example, OPM may assert with unequivocal brevity that there lacks “compelling medical evidence” in the Federal Disability Retirement application.  “Compelling” is not a legal criteria required by statute, case-law, or regulatory dictum.  As such, it is a meaningless word-usage.

Moreover, it is harmful to a case because it means that OPM applied a standard of review which is nowhere found in any statute.  Further, it gives an appearance of authenticity and authoritative credibility where none exists.  What to do about it?  It needs to be addressed and pointed out — but diplomatically.  Diplomacy is nothing more than a forceful rebuttal clothed in the finery of courtesy, but it is a necessary ingredient in establishing the proper tone and tenor of a response to OPM.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Unequivocal Doesn’t Mean That One Is “Right”

In a denial letter from the Office of Personnel Management, the Claims Specialist/Representative will often make statements in confident, unequivocal terms.  “You have not…”   “The medical evidence fails to show…”    “Your doctor never…”   “The law requires that you…”  Such a voice of unequivocal confidence often leaves the impression that there is no room for argument; that the case is lost; that there really is no point in even attempting to argue with the Office of Personnel Management.  Nothing could be further from the truth. 

Merely because an individual makes statements in an unequivocal manner, is not a basis for determining the truth or falsity of his or her argument.  In a Federal Disability Retirement application under FERS or CSRS, there is almost always room for disagreement.  We are speaking about interpretation of medical documents, the significance of what is said, etc.  We are talking about the different and proper application of the OPM Disability law, and the multitude of case-law which would be applicable.  Don’t let the voice of a statement fool you as to the validity of the statement.  In a Federal Disability Retirement case, the Office of Personnel Management is rarely right; they just like to sound like they are.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: An Additional Problem with Answering an OPM Denial

Spring and summer are finally upon us; the warmth of the sun finally brings some hope that the multiple series of snowstorms may be finally behind us (now that I have said it, the chances are exponentially multiplied that we will accumulate an additional 20 inches of snow in March).  Thoughts of the beach will soon become visually real, as opposed to virtually experienced.  Sand.  The metaphor of the “shifting sand” is one which is applicable to the Office of Personnel Management in its denial of a Federal Disability Retirement application under FERS or CSRS.  Those of you who have followed my stream of consciousness on the issue of templates, denial letters and the arbitrary nature of OPM’s decision-making process, will not find it surprising to find that OPM merely shifts, changes positions, and dances around (albeit, not always gracefully) any attempt to “corner” the argument which purportedly is the basis for a denial of a Federal or Postal Disability Retirement application. 

Do not, however, underestimate the importance of properly, directly, and clearly answering the concerns of an OPM denial.  It is not enough to gather more medical documentation and sending them in.  It is not enough to address, point by point, the basis of a denial letter.  One must corner, clarify, and clearly define the basis of an OPM denial, then refute them.  This way, if it is denied a second time, and the case goes before an Administrative Judge at the Merit Systems Protection Board, the AJ will see that the issues previously brought forth by OPM have already been addressed, and that any necessity for a Hearing may be avoided by clarifying any remaining concerns which the OPM representative may need to search for and articulate. 

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Responding to the Template Approach

While the Office of Personnel Management issues template approvals and denials, what must the individual applicant who receives such a template denial, do?  Obviously, it cannot be a “template” response, because any response by an individual applicant is going to be an individualized response.  Often, however, OPM’s response takes a shot-gun approach in denying a Federal Disability Retirement application — it uses every device in its template, touching upon every issue and sub-issue, without any apparent (or obvious) rhyme or reason.  Whether purposeful or not, the extent and quantity of reasons for denial become almost insurmountable, and unable to “sort out”. 

One thing that a Federal Disability Retirement applicant should not do, is to take the denial letter to his or her doctor to respond to.  It will only confuse the doctor.  Instead, the denial letter must be reduced to a comprehensible set of criteria which can be answered.  Sub-sets of issues need to be identified and consolidated; the minor (but often irritating) references to peripheral issues, often touched upon but of no real consequence, must be ignored; and the focus must be placed upon the central 2 or 3 issues which seem to be the overriding concerns in the denial letter.  In other words, the denial letter must be deciphered and extracted to be “made sense of”.  Only then can OPM’s template denial letter be answered — with reason, aggressive attack, and a rational grounding in the law.  In other words, irrationality must be met with clarity of mind.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM & the Problem of Templates

The problem with the use of templates is that they are, over time and overusage, predictable; being predictable, they become ineffective.  Now, from the perspective of the Office of Personnel Management, applying a template to a Federal Disability Retirement application under FERS or CSRS, whether predictable or not, is somewhat irrelevant, to the extent that a denial is still a denial, and an approval is simply an approval. 

It is only if and when a case is appealed (after an initial denial and a denial at the Second Stage, at the Request for Reconsideration Stage) to the Merit Systems Protection Board, that the template has to be “defended” if the Administrative Judge asks for clarification of the issues by referring to the template-based denial.  Moreover, what is predictable is the combination of medical condition/denial rationale.  For instance:  for Fibromyalgia:  “The condition waxes and wanes”; for Major Depression:  “Not enough time has been allowed for the efficacy of a medication regimen“; for anxiety & panic attacks:  “There is insufficient objective medical evidence”; for Chronic pain:  “Physical therapy has not been sufficiently given a chance to…”   These are some examples of templates used by the Office of Personnel Management, each of which can easily be refutted in any particular case.  The methodology of refutation, obviously, is where a federal disability attorney can be of greatest counsel and representation.

Sincerely, Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Rationale

Too much time is often spent on the “rationale” or “reasons” for a denial from the Office of Personnel Management, under the “Discussion” Section of a denial letter.  By “time spent”, however, is not meant that one should not selectively rebut, refute and address some of the reasons delineated in an OPM denial letter; rather, what too many people do is to complicate matters by “reading into” the reasons given for the denial. 

One of the jobs of an attorney who specializes in Federal Disability Retirement law under FERS & CSRS is to prepare an application for Federal Disability Retirement benefits, rebut a denial, or file an appeal to the Merit Systems Protection Board, based upon one’s experience, wisdom and sense of that which OPM is looking for.  This is accomplished by having learned from a myriad of sources:  from seeing the types of prepared disability retirement packets which have been successful in the past; from learning from past legal arguments and rebuttal arguments as to which have been most persuasive for OPM; and from having conducted multiple Hearings before the Merit Systems Protection Board and learning exactly what the Administrative Law Judge has been most persuaded and convinced by.  Further, having read countless denial letters by people who have attempted to file for Federal Disability Retirement benefits at the first stage without an attorney, it is important to focus upon the relevant issues which OPM is seeking, and to disregard those issues which are peripheral or irrelevant.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Disability Retirement: Discretion in a Response II

In responding to an initial denial of a Federal Disability Retirement application before the Office of Personnel Management, it is important to remain professional, and not to “overload” the response with unnecessary or otherwise irrelevant responses.  Initial anger and disbelief over the selective criticisms contained in an OPM denial letter should not be reflected in a response to the denial.  Why not?  Because there is a good possibility that the case may be denied a second time, and it may appear before the Administrative Judge at the Merit Systems Protection Board.  Don’t write things to OPM that you will regret having an Administrative Judge — one who may be deciding your case — look at and read.  Thus, the “first rule”:  never write an immediate response back, because your anger and emotional disbelief will show itself.  If you need to “get rid” of your anger and expiate the emotionalism, then write your emotional response on a separate piece of paper, then set it aside.  Your “real” response will come later — when you can with a rational perspective, review the unfair and selectively biased denial letter, and begin to compose the serious response that your case deserves.  Or, better yet, get your attorney to do it.

Sincerely,

Robert R. McGill, Esquire