Federal and Postal Disability Retirement: Responding to Stupidity

Sometimes, one’s initial reaction in a situation — professional setting, social discourse, event gathering, etc. — requires a momentary pause; and it is precisely that couple of seconds of gathering one’s thoughts which saves one from further putting fuel upon a potential fire.

Perhaps you have every right to have responded with a drip of sarcasm; or others would have approved of the lashing back; and still others would say that the response was appropriate and deservedly given.  But the greater question should always be:  how effective was the response; did it evoke the necessary end; and for whose benefit was the aggressive retort given — for the benefit of truth, or for one’s own satisfaction?

In a professional context, of course, it is probably never appropriate to respond in an unprofessional way, if merely by definition alone.  Similarly, in a FERS or CSRS Federal Disability Retirement context, when one receives a denial from the U.S. Office of Personnel Management, there are statements made — whether one pertaining to mis-application or mis-statement of the law; or perhaps a wrong reference to a medical report; or even more egregious, a selective use of a statement from a medical report or record taken out of context — which can deservedly provoke a response involving sarcasm, a deluge of epithets, or worse, a barrage of ad hominem attacks — and in each case, it would be neither appropriately given, nor proper in a professional sense.

Fortunately, paper presentations and paper responses have the advantage of time over social discourse and person-to-person contact.

Holding one’s breath and counting 3 seconds, or 10, or perhaps an eternity, is an effective way of avoiding catastrophe.  Writing a diatribe of what one wants to say, then trashing it, is also acceptable.  On the other hand, beware of that “send” button; and, moreover, never push that “send to all” button.

That would indeed be unprofessional.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Responses

Whether fair or not; whether consistent or a lack thereof; the one who holds the power of determination ultimately has the authority of interpretation — until and unless a higher authority supersedes such power.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal or Postal employee can seemingly comply with all of the requirements of the laws and case-laws governing Federal Disability Retirement eligibility and entitlement, and still be denied.

The standard response on the telephone is often, “I thought I had a slam-dunk case…”  But the problem with approaching a governmental bureaucracy is that one assumes (wrongly) that application of the law will be implemented in an interpretively consistent manner.  But where individuals are involved, a multiplicity of interpretive approaches will surface.

Some OPM personnel will focus upon certain legal aspects over others; others will apply a “higher” bar of passage as to what meets the “preponderance of the evidence” test; and still others will be so obtuse as to refuse, or merely fail to, accept that when a doctor (for example) states that a condition is “permanent”, that such a statement logically entails and encapsulates the satisfaction of the requirement that a medical condition will last a “minimum of 12 months“.

How to respond to such inconsistencies? By reasserting the law; citing applicable case-law; by preemptively guiding OPM into approving one’s Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

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

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

OPM Disability Retirement: Substantive Responses

Once a Federal Disability Retirement application has been denied at any given stage of the process (at the First Stage or at the Reconsideration Stage) by the Office of Personnel Management, a Federal or Postal employee must determine the proper response.  

As stated in the immediately preceding blog, there is first the administrative response which must be satisfied, before one even gets to the issues of a substantive response.  The administrative response takes care of the timeliness issue of satisfying the administrative requirements set forth by the law — upon a first denial, one must submit a “Request for Reconsideration” within thirty (30) days of the denial; upon a second denial, one must file an appeal to the Merit Systems Protection Board within thirty (30) days of the denial, etc.  

As for the substantive response, the worst mistake that a Federal or Postal employee can make is to immediately write an angry diatribe and submit the response.  There is time enough for a thoughtful and proper response.  The issue is whether to rebut each point which the Office of Personnel Management makes, or to selectively choose one or two main points, and to focus upon those.  Normally, the latter is preferable, if only because such an approach normally addresses all of the subset, minor points of a denial in the very process of presenting one’s case.  Remember that, throughout the process, the mere fact that OPM asserts an argument, does not mean that the argument is true, or even valid.

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

CSRS & FERS Disability Retirement: OPM Decisions

One would like to think that the Office of Personnel Management takes each case independently, reviews each case according to the merit of that particular case, and that, based upon a fair, independent and careful evaluation process, a decision is made for an approval or disapproval.  When a decision from OPM reaches a Federal Disability Retirement applicant under FERS or CSRS, that applicant will see such a decision, and that decision alone.  When an attorney who specializes in OPM Disability Retirement sees such a decision, it is clearly based upon a template, and after viewing thousands of such template-based decisions, a pattern begins to develop. 

Templates are not in and of themselves a negative thing; one need not “reinvent the wheel” each and every time.  It is only when a template does not “fit” a particular case, or where it is clear that a decision contradicts the substantive content of the disability retirement application or the documentary attachments, that there is any negative issue with a template.  Fortunately, most OPM decisions are fair and properly evaluative; every now and then, however, it is evident that a template-driven decision has been issued without thought or fair analysis.  That is when a true problem has arisen.

Sincerely,

Robert R. McGill, Esquire