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’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

OPM Disability Retirement: Reconsideration Decisions

Types of reconsideration decisions denying an applicant his or her Federal Disability Retirement benefits under FERS or CSRS can and do span the entire spectrum, depending upon the OPM representative who writes up the decision:  from half a page (barely giving a passing, respectful review to a packet which took multiple hours to put together) to over 3 pages long (in the “Discussion Section”); from merely listing general principles of law and generalized, template-like denials to apparent detailed (but very selective) references to various medical reports submitted by the applicant as part of the disability retirement packet — they all boil down to the same thing:  a denial at the initial application stage.

Often, an initial reaction to the denial encompasses a myriad of responses, ranging from incredulity, to resignation, to anger, to indignation.  Set aside the emotionalism.  Further, there is often the reaction to that “one piece” of medical information which the applicant believes should have turned that “denial” into an “approval” — that “one piece” of medical note, statement, sentence, or paragraph which the OPM representative conveniently disregarded or chose not to reference.  Don’t ruminate over it.  It may well be that it was deliberately disregarded; it may even have been overlooked.  More than likely, the OPM representative was fully aware of it, but decided to selectively choose his or her basis as the more “important” and “substantive” evidence, forming the core rationale of the denial.  Don’t waste time.  More work is needed — both medical as well as legal.

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