Federal and Postal Disability Retirement: Decisions by OPM

In making a decision on a Federal Disability Retirement application, whether under FERS or CSRS, the Office of Personnel Management has a policy which essentially refuses to convey the decision over the telephone, and asks that the applicant wait until the letter of approval or denial is received by the applicant.  This is probably a sound policy, despite resulting in a few more days of additional waiting, testing the patience of the Federal or Postal employee who is anxious in anticipation of a favorable decision.  

The problems which could potentially be compounded and exponentially multiplied by an erroneous or contradictory communication between what the OPM worker states over the telephone, and what the decision made by the Claims Representative who is handling the particular case of the inquiring individual, would (and potentially could) unnecessarily complicate matters.  

One assumes that what the Office of Personnel Management is attempting to avoid, aside from privacy concerns of not being able to adequately identify the person on the other end of the telephone, is the potential scenario where the Federal or Postal applicant has been denied in his or her Federal Disability Retirement application under either FERS or CSRS, but is told over the telephone that he or she has been approved, or vice versa.  

Beyond that, however, it is a reasonable policy to have by any Federal agency — for protection of confidential information which only the Federal or Postal employee/applicant and his or her representative attorney should have access to.  While a few more days may indeed increase the anxiety level of the applicant, it is well to try and understand that such a policy of not revealing information to someone who has not been properly identified, is one which the Federal or Postal employee should not get upset with OPM about.  

There are enough issues to be upset with OPM about; protecting the privacy of confidential information is not one of them.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Waiting upon the Office of Personnel Management

A Federal or Postal worker who is filing for Federal Disability Retirement benefits under FERS or CSRS must understand that the waiting portion of the entire process is probably the most difficult time, precisely because it is a time of inactivity, where one’s future plans are placed on hold because of the uncertainty of the decision.  

Everyone, of course, believes that his or her Federal Disability Retirement application has merit. Otherwise, a Federal Disability Retirement application, whether under FERS or CSRS, should never have been prepared, formulated, finalized and filed — but for the strong belief that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job.  

Every Federal or Postal employee whom I represent believes that his or her case is a “slam dunk” case, and it is the job of an OPM Disability Attorney to present it as such, but within the limitations of what the doctor & other supporting documentation will provide.  Once a Federal Disability Retirement application has been filed with the Office of Personnel Management, then the destiny of one’s future plans is somewhat placed in the hands of the OPM benefits clerk.  

Activity often gives the appearance of progress, and inactivity presents a frustrating sense of powerlessness.  But waiting is part of the process.  As such, it is best to make plans, prepare for one’s future in other ways, and allow the Office of Personnel Management to review one’s case properly and thoroughly.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Office of Personnel Management

The Office of Personnel Management is taking a long time to process Federal Disability Retirement applications and benefits, at all levels of the process.  It is not something which can be corrected in the short term, except with patience and polite persistence.  From their point of view, the people working at the Office of Personnel Management are doing their best in reviewing and evaluating each Federal Disability Retirement case, and attempting to process all approved cases as expeditiously as possible.  But from the perspective of the individual applicant, whether awaiting for a decision by OPM or for payment because an application has already been approved, any delay beyond the normal, expected time-frame (and there is no timetable which is “set in stone” with OPM) is one which is unacceptable.  If an individual’s Federal Disability Retirement application has already been approved and that person is receiving interim payments, then he or she is awaiting for finalization of the case; that person, at least, is receiving some payment, and should be thankful for that, because there are many others who have gotten an application approved but has been waiting for months without any pay at all.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Denials II

It is, indeed, frustrating when a governmental agency makes life-impacting decisions which seem to be spurious and capricious. A review of a disability retirement application by the Office of Personnel Management is supposed to be thorough, with sound reasoning and a fair application of the law. And, in all fairness, the majority of cases appear to meet that standard. It may well be, of course, that since all approval letters of disability retirement applications are standard templates, with boilerplate language and instructions, and since most of my cases are approved at the first level, the impression left is that OPM does a good job in reviewing the cases.

When a case is disapproved, however, it is often the case that the denial is based upon factors which defy logic, which appear to have little or no rational basis, and which selectively focuses upon a narrow reading of the medical reports and records. Thus, often the OPM Representative will take a statement out of context, and declare that the doctor stated X when a full reading of the medical report shows that the doctor actually stated Y. This is unfortunate, and does not reflect the careful review, analysis, and fair rendering of a decision made by most OPM representatives, but occurs often enough to be of concern. On the bright side, however, is that there is always the ability to take it completely out of the hands of OPM, after a second denial — and allow an administrative judge to review it objectively, at the Merit Systems Protection Board. That is why the MSPB was created and exists — to have a third party, objective body review the decision-making process of the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire