OPM Disability Retirement: The Process of Decision-Making

As has been previously stated in repetitive fashion, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to understand and acknowledge the duality of the process — for it is a process, as opposed to a singular event, both as an administrative legal issue, as well as for the individual Federal or Postal employee in a personal sense.

To clarify:  As an administrative issue, it is a process which involves multiples stages of argumentation (potentially).  Yes, it would be nice if every case was decided with an approval at the First/Initial Stage of the administrative process; however, there is a purpose and a reason why there are multiple stages.  It is precisely because it was anticipated that there would be denials and appeals to such denials, that an administrative procedure for multiple stages of review and further submissions of evidence and arguments was constructed and implemented.  It is not an entitlement pursuant to a fixed date, a fixed age, or a triggering event.  Rather, it is an administrative process which must be proven, applied for, and affirmatively shown that one is eligible.

From the personal perspective of the Federal or Postal employee, the decision of “when” to apply for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is also a process, as opposed to a singular event.  There are, of course, cases where a traumatic injury or life-changing accident occurred, and such an event is the triggering moment for filing.  But for most Federal or Postal employees, the medical condition suffered is a progressively deteriorating process, and it is often difficult to determine a “date certain” where one can point to on a calendar and state, this is the day and hour when I cannot perform one or more of the essential elements of my job.

This is why there is an inherent complexity to a process, as opposed to a singular event of certitude — for, it is always the unknown and the uncertain which gives rise to the anxieties of life, and a process is indeed a period of the unknown, and a chasm of uncertainty.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Representation: Substance and Process

In any bureaucratic, lengthy administrative process, one can become embroiled in the procedural aspects of an endeavor, and overlook the substantive elements which form the foundation of any case.  Conversely, one can make the mistake of approaching a case and declare to one’s self, “This is so obviously a good case,” and take shortcuts in the process of putting together an effective and persuasive case.

Either approach is one fraught with grave errors, and for Federal employees and Postal workers who are beginning the process of preparing, formulating and filing for Federal Disability Medical benefits, first through one’s own agency (if still on the rolls of the Federal agency or the U.S. Postal Service or, if separated, for not more than 31 days), and ultimately submitted to the U.S. Office of Personnel Management in Boyers, Pennsylvania (directly, if the Federal employee or U.S. Postal worker has been separated from Federal service for more than 31 days), it is important to keep the balance between the substance of a case, and the process of the case.

Substantive issues involve everything from the factual, informational content required on all standard forms (SF 3107, along with Schedules A, B & C, and the required attachment of one’s DD 214 showing prior active military service; SF 2801 for CSRS employees; and the substantive content of the description of one’s medical conditions to be considered, as required in SF 3112A, etc.), as well as the medical documentation needed to provide the evidentiary support for one’s case.

“Process” issues involve the timeframe in filing a case, the administrative procedures of where the disability application must be submitted through, as well as the myriad of sequential steps required for satisfaction of accommodation issues with one’s agency.

Substance and process — they are the necessary sides of a single, inseparable currency of an administrative reality known as Federal OPM Disability Retirement, and both must be attended to in order to reach the heights of efficacy mandated for a successful outcome in the preparation, formulation and submission of an OPM Medical Retirement application.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Administrative Process

Ultimately, Federal Disability Retirement must be viewed as a “process“, as opposed to a singular procedure whereby a triggering mechanism automatically allows for receipt of benefits.  The former requires an affirmative approach which involves submission of proof, argumentation, an expectation of resistance (in many cases), and an analysis by the U.S. Office of Personnel Management as to whether or not all of the legal criteria have been met.  The latter is merely a formality of filing.

As a process, filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management has various steps, procedures, and Stages for appeals.  There is, first and foremost, the initial application Stage, where one has the opportunity and right to submit proof of eligibility, and make legal arguments for entitlement.  If one’s Federal Disability Retirement application is denied at the first Stage of the process, then one has a right to have it “reconsidered” by filing a “Request for Reconsideration” within 30 days of the date of denial, or receipt of the letter of denial from OPM, whichever is later.  If denied a second time, then the Federal or Postal employee who is filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management has a right to file an Appeal to the U.S. Merit Systems Protection Board.

There are, in addition to the 3 stages described, two (2) additional stages of appeal, but the three main stages of filing are what have been previously described.

With such a “process” in mind, it is wise to prepare for the long haul.  An expectation of a quick and easy approval, even if obtained, should not be embraced at the outset, precisely because one must take into consideration the potential length of time which the entire process may take, and prepare accordingly.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Process

The engagement of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is a “process” both on a macro as well as a micro level.

On a macro level, the ability to consolidate the variety and complexity of information; of understanding that there are multiple levels in the administrative labyrinth of a Federal Disability Retirement application, beginning with the initial stage of the process; then, if denied, the Second, or Reconsideration Stage of the process; then, if denied a second time, an appeal to the U.S. Merit Systems Protection Board; then a potential filing of a Petition for Full Review; and, finally, an appeal to the U.S. Court of Appeals for the Federal Circuit; all told, the aggregate of all of the procedural hurdles can be characterized as a “process”, precisely because of the complexity of each stage building upon the previous one.

On a micro level, it is similarly a process, but in a different sense.  The “pieces of the puzzle” must be gathered, and the best way to do so is in a methodologically sequential manner, one which reflects a logical structure, as opposed to a haphazard compilation of facts, tidbits, arguments and rants strung together into a barely coherent whole.

Remember that putting together a Federal Disability Retirement application must reflect an argument with a purpose — of proving one’s case by a preponderance of the evidence.  As such, understanding the “process” of such an endeavor is important in the very preparation of one’s case.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Realizing Process

By definition, a process entails multiple procedural steps.  Filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management encapsulates procedural administrative steps, and these include denials and appeals.

Yes, it is true that a certain percentage are approved at the first stage of the process.  Yes, it is also true that not everyone must go to the Second, or Reconsideration Stage of the process, or the Third Stage, the U.S. Merit Systems Protection Board.  But the fact that “not everyone” must be subjected to X, does not undermine, erase, or otherwise nullify the truism that it still remains a “process”, as opposed to an application for an entitlement benefit.

As a process, one’s Federal Disability Retirement application with OPM must be proven.  In order to prove a case, one must submit certain qualifying documentation.  As the U.S. Office of Personnel Management is the initial and secondary reviewer and determining agency for the first two stages of the process, so they have personnel of differing qualitative abilities — from pure incompetence, to indifference, to superior case workers who understand the full and complete application of the law, the regulatory criteria, and the statutory applicability of case-law interpretation.

Since it is the only process around, it is something we have to live with, and ultimately, follow.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Sounds Good

There are various stages of the administrative process designated and defined as “Federal Disability Retirement” — the initial application stage of the process, where one must attempt to prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits; if disapproved and denied, then the Reconsideration Stage of the process (where one may submit additional medical and other documentary evidence to persuade the Office of Personnel Management to reverse themselves); an appeal to the U.S. Merit Systems Protection Board, where the Federal or Postal applicant’s Disability Retirement application is taken out of the hands of OPM and transferred to an Administrative Judge, who will hear the case anew, without regard to what OPM has decided in the past; a further appeal to the Full Board of the MSPB in the event that the Administrative Judge issues an Initial Decision which affirms and upholds OPM’s denial of the case; and a further appeal to the Federal Court of Appeals for the Federal Circuit.

Throughout this process, and especially in the administrative stages before the Office of Personnel Management, one should make a distinction between “sounding good” and “being right”.  Hopefully, the Federal or Postal employee who has filed for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is both right and sounding good. But there is a distinction to be made.  For example, OPM will often — in their denial letter — “sound good” but be completely wrong on the law.  They will cite medical textbooks which skew the legal standard of review; creep into the discussion of a denial letter such terms as “no significant disability rating to speak of,” or that you don’t suffer from a disability which “incapacitates” you.  It all “sounds good”, but it is not true precisely because it is not the applicable standard of law to be applied.

At the initial stages of the process, OPM can get away with such nonsense, because most people don’t recognize the untrue and inapplicable standard of law being applied.  In the later stages of the process, however, when an Administrative Judge hears a case, it becomes important not only to “sound good”, but to also apply the right legal criteria.

Appearance versus reality — it is the argument of Western Civilization from the pre-Socratics onward.  As Alfred North Whitehead once observed, all of philosophy was already written by Plato and footnoted by Aristotle.  That statement both sounds good, and is indeed right on point.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: As a Process

It is often a necessity to be reminded that the preparation, formulation, and ultimately the filing of a Federal Disability Retirement application under FERS or CSRS, with the U.S. Office of Personnel Management, is an administrative process.

By “process” is meant that it involves multiple levels of time frames and stages, and is not merely constituted by a single “filing” of paperwork.  It is not a defined “right” to a benefit which is triggered by a certain event — such as age, filing of a form, etc.  Rather, it is a benefit which is determined by an administrative process of eligibility.

One must prove, by a preponderance of the evidence, that one is “eligible” for the benefits.  In order to do that, one must, of course, meet each of the legal and regulatory criteria as set out by statutory authority, regulations propounded by the Office of Personnel Management, and case-law authorities handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.

As such, time frames for issuing determinations are made by the agency granted such authority — the U.S. Office of Personnel Management.  And, further, the process will often necessarily involve multiple stages — the Initial Stage, the Reconsideration Stage, an appeal to the U.S. Office of Personnel Management, then a Petition for Full Review, and if necessary, an appeal to the Federal Circuit Court of Appeals.

Time frames, stages, applicability of the law, meeting each of the statutory requirements — they all constitute a long and complex “process”, and one which must be dealt with whether one agrees with it, wants to, or is somehow unprepared to do so.

Sincerely,

Robert R. McGill, Esquire

FERS OPM Disability Retirement: Facts, Laws & Persuasive Argumentation

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to distinguish between facts, laws, and persuasive argumentation, as well as the targeted audience to whom such distinguishing elements are being conveyed.

For the first two “stages” of the administrative retirement process, the Federal or Postal employee will be addressing personnel at the U.S. Office of Personnel Management.  This is merely at the “administrative”, or “agency” level of the process.

Thus, the initial review, analysis, and application of the legal criteria will be performed by a non-lawyer, and any application of a legal criteria to determine the eligibility of the Federal Disability Retirement application will be done in a rather mechanical manner.  By “mechanical manner” is merely meant that the criteria to be applied is merely an extrapolated generic form of interpretation, and will be applied by comparing the “list” of legal criteria against the submission of the Federal or Postal employee.

Whether there is sufficient justification in the medical report and records; whether the description of the Federal or Postal employee’s job comports with the official position description; whether the agency has offered an “accommodation“, and if so, in what form; whether a reassignment to another position at the same pay or grade was offered and declined — and other applicable criteria will be applied, analyzed and annotated by the OPM Representative.

If the Federal Disability Retirement application is denied at this initial stage of the process, then it will again be reviewed at the Reconsideration Stage of the process — assuming that the Federal or Postal employee files a timely Request for Reconsideration with the Office of Personnel Management.

It is at the next stage of the administrative process — an appeal to the Merit Systems Protection Board — that any legal argument will ultimately begin to carry significant and relevant weight.  For, at the MSPB, an Administrative Judge will review the entire file, and proceed to conduct a new hearing “de novo”, that is, “fresh” or “anew”, and weigh the evidence, the legal arguments, and determine the persuasive impact of either or both.

Sincerely,

Robert R. McGill, Esquire

 

Federal and Postal Disability Retirement: Systematic Preparation for the Process

As has been stated many time previously, in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management, it is important to view the engagement with the entirety of the application procedure as a “process“, as opposed to a singular event.  

The multiple stages of this administrative process — from the Initial Stage of the preparation and filing; to the Reconsideration Stage (in the event of an initial denial); to the appeal to an Administrative Judge with the U.S. Merit Systems Protection Board; to an appeal with a Petition for Full Review (PFR) with the MSPB; and finally to the Federal Circuit Court of Appeals — it is a “process” because each of the forums or legal venues cannot be viewed in a vacuum.  

While it is true that a Hearing before an Administrative Judge at the Merit Systems Protection Board will receive the information, testimony, and conduct the Hearing as “de novo” — meaning, “anew” or “freshly all over again” — nevertheless, it is quite apparent that the reason why such a stage as having a Hearing before an Administrative Judge at the Merit Systems Protection Board is precisely because of the evidence filed in the prior portion of the process, and the one before that.

Thus, retrospectively, one must understand that the Federal or Postal Worker who finds himself or herself in any part of the administrative process, is there precisely because of its interdependence upon a prior, other part of the process.  Therefore, prospectively — looking forward at the start of the process — it is important to recognize this point, and to prepare and formulate one’s Federal Disability Retirement application with this in mind:  that each Stage of the administrative process identified as a Federal Disability Retirement application under FERS or CSRS cannot be viewed in a vacuum, but instead, must always be analyzed with a view from “on high” — meaning, preparing for the potentiality that it will be reviewed and heard before a judge.  

This often changes the perspective, and should give pause to the lay person who believes that his or her case is a mere “slam dunk” which will entail a singular event.  Systematic preparation for the entirety of the process is a perspective worth noting, and such notation may be the needed grammatical mark for a successful and persuasive presentation to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement Application: Complex Interdependence of the Stages

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, it is important to recite, note, identify and apply “the law” at each stage of the process, if not for the present, then always in preparation for the future.  

No one likes to think of his or her Federal Disability Retirement application as potentially being capable of being denied at any of the multiple levels of the administrative process; everyone believes that his or her Federal Disability Retirement application is a “sure thing”, a “slam dunk”, a certainty beyond question.  The latter is a natural belief, born from a subjective experience of one who personally and immediately suffers from the very medical condition which one is complaining about.  The former acknowledgement — of understanding the potential for a denial either from the Office of Personnel Management or from the Merit Systems Protection Board, or the U.S. Circuit Court of Appeals for the Federal Circuit — is an unavoidable reality to be confronted.  

To acknowledge reality is a mechanism of survival; to deny a potential future event is to avoid a reasonable occurrence which, if not recognized, can have unintended consequences which can result in greater devastating residual effects if not properly prepared for.  Indeed, one should reasonably expect that, with a lower-level “preponderance of the evidence” standard of proof, that if properly and carefully prepared and formulated, that one’s Federal Disability Retirement application will be approved at some point in the process.  

One has many opportunities — the Initial Application Stage at OPM; the Reconsideration Stage at the Office of Personnel Management; an appeal and a Hearing before an Administrative Judge at the Merit Systems Protection Board; a Petition for Full Review at the Merit Systems Protection Board; and an appeal to the U.S. Court of Appeals for the Federal Circuit.  

Each stage is independent, yet co-dependent and interdependent.  Each stage must be meticulously prepared for its own merits, yet the groundwork set for the next stage.  Each stage is the crucial stage to win; yet, to cite legal precedents for an appeal to the next.  Never underestimate the potential for a denial; for to underestimate is merely to ask for that which one is unprepared for.  

Sincerely,

Robert R. McGill, Esquire