OPM FERS/CSRS Disability Retirement: Approaching a Reconsideration

The proverbial definition of insanity is to engage in the same repetitive activity with the expectation of receiving a different result.  While such a definition may not provide a clinically accurate or legally acceptable formulation, it does implicate the chaotic character and the futile act of responding in a particularly fruitless manner.

For Federal and Postal employees who have attempted to file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, and have received an initial denial, the process of having OPM reconsider one’s case must be approached in a 2-tier manner:  First, one must meet the “deadline” of filing for Reconsideration with OPM within thirty (30) days of the denial, or upon receipt of the denial (although, to be on the safe side, it is best to use the former date as opposed to the latter);  next, with the box checked to indicate submission of additional medical documentation, to then gather, prepare, compile and submit additional medical evidence within thirty (30) days thereafter, unless a further extension is needed and requested.

However, one should also understand that in an OPM Reconsideration case, it will not be the same Case Worker who will review the case, but it will be reviewed thoroughly by someone else as if it had never been previously reviewed. As such, there is the confounding conundrum of a dual anomaly: The First Case Worker who issued the denial based the denial upon certain specific points; yet, what the First Case Worker denied the case upon, may have no bearing upon what the Second, Reconsideration Case Worker will evaluate the case upon.

What does one do? Whatever one’s answer is to this complex conundrum, do not engage in the proverbial act of insanity; better to get some legal guidance than to spin one’s wheels in an insane world of futility.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for American Federal Government Workers: Timing and Impatience

In the United States, we have come to expect efficiency and effectiveness; that is the nature of our history, and precisely why the prevailing philosophical engine has been that of “pragmatism“.  But countries evolve over time; bureaucracies become burdensome; the character of a nation may slowly, almost imperceptibly, change and alter.  Further, some actions are within the purview of one’s ability to impact; other issues are entirely outside of one’s control.

For the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to distinguish between those aspects of the administrative and procedural issues which can have some exerted control, and those which are well beyond one’s sphere of influence.  For, the test of one’s patience and growing sense of impatience will often be determined by a recognition of that which can be influenced, and that which has little to no access for such.

Timing issues can often be controlled, as in when to file; but as for the timing of OPM’s determination, that is another matter altogether.

Patience is unfortunately a virtue which is being daily tested by Federal agencies; the practical reverberating impact is upon the individual Federal and Postal employees who are filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management (the Agency that approves and manages Disability Retirement for all Federal Employees in America)  That, too, is something which is historically inevitable — it is the individual who is impacted, while the faceless “agency” goes on about its business.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Prospective Affirmation versus Retrospective Correction

Moving forward with the right tools is generally more effective than looking back and trying to correct deficiencies; thus, the age-old adage of being penny wise, pound foolish applies; and 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 make a determination early on to clearly assess the strength of a case, the needs required to optimize such strengths, and to obtain assistance where necessary.

As to an objective assessment of a case:  one is normally not the best evaluator in analyzing the strength or weakness of one’s own Federal Disability retirement case.  This is because of a self-evident principle operating in each such Federal Disability Retirement case:  the subject who suffers from the medical condition cannot objectively evaluate from a third-party’s perspective the viability of a case in terms of proving by a preponderance of the evidence the coherence and compelling nature of the evidence to be presented.

Most believe that his or her case is a “slam-dunk”; few in actual reality ever are.  To get denied by OPM at the First Stage; then at the Reconsideration Stage; then to go pro se before the Merit Systems Protection Board; then to obtain a lawyer — while it is good to get a lawyer at any stage of the process — is it wise to attempt a retrospective correction of one’s mistakes?  At what stage does it become too late?  Where in the process does “correction” override “mistakes”?  Compare that to a prospective affirmation of one’s inadequacies — that it is difficult, if not impossible, to objectively evaluate one’s own case; that an effective compilation and presentation of a Federal Disability Retirement case is necessary in order to win in a Federal Disability Retirement case; and that providing a legal citationin support of one’s case is an essential element of a compelling case:  combining it all, it would seem that being wise for the pound is preferable than being foolish for the penny (to make an inverse adage applicable).

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: Waiting until the Very End

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is never a good idea to wait until the very end to obtain an attorney who specializes in Federal Disability Retirement issues.  By “the very end”, of course, is a relative term — it can mean the U.S. Court of Appeals for the Federal Circuit, or a Petition for Full Review (PFR) before a 3-Judge panel of the Merit Systems Protection Board (upon an appeal to the Merit Systems Protection Board, after a denial at the initial application stage before the Office of Personnel Management, then a denial at the Reconsideration Stage before OPM), or the hearing stage itself at the Merit Systems Protection Board.  The “very end” equates to “it is almost too late”.  Another relative concept is the term involving “almost”, as in “almost too late”.  

A recent reversal of a case was by a former Federal employee who attempted all of the initial stages on his own — the initial application stage with the Office of Personnel Management, then the Reconsideration Stage — then went to a Hearing at the Merit Systems Protection Board without an attorney.  This particular Federal employee then came to the undersigned attorney and asked if it could be reversed by an appeal to the 3-Judge panel at the Full Review Stage of the Merit Systems Protection Board.  As pointed out in an earlier blog, there were enough judicial/legal errors committed by the Administrative Judge to justify a Petition for Full Review, and indeed, the outcome was a positive one — fortunately, for the Petitioner/Appellant/Applicant.  However, it is always best not to wait until it is too late.  That is another relative concept — “too late”.  

Hope springs eternal, but such hope has an end in every administrative appeal process, and unless one begins to build the bridge properly from the very beginning, block by block, legal precedent by legal precedent, there is the danger that a collapse will ensue.  It is best to prepare well at the beginning of a process, lest the lack of preparation result in an irreversible tide of mistakes, mishaps, and misfortunes at the end of a long and arduous attempt.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Best Indicator

When is the right time to file for Federal Disability Retirement benefits under FERS or CSRS?  Because the process can be a rather lengthy one (6- 8 months minimum from the beginning of the process of gathering the necessary medical documentation, etc., to receipt of an approval letter from the Office of Personnel Management in Washington, D.C.), the question of when to begin the preparation, formulation, and filing of a Federal Disability Retirement application may depend upon several factors.  Obviously, a frank discussion with one’s treating doctor is a good starting point.  

As for indicators, only the Federal or Postal employee who is suffering from the particular medical condition can know — either explicitly because of something that happened in the workplace or because of a medical emergency, or implicitly/intuitively.  As for the latter, if a Federal or Postal employee is exhausting his or her Sick Leave and Annual Leave, and is taking LWOP; has filed for FMLA; has been placed on a PIP; or, as is more often the case, is using the evenings and weekends as mere “recovery times” in order to drag one’s self to work, only to continue and perpetuate the vicious cycle of work, deteriorating condition, exhaustion, sleep, work, deteriorating condition … ad nauseum and ad infinitum (or so it would appear), then such an unacceptable condition of existence may be an indicator that it is time to consider formulating, preparing, and filing a Federal Disability Retirement application under either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement Applicant: Waiting too long

My approach to Federal Disability Retirement law is that there are very few, if any, mistakes made by the applicant which cannot be corrected, amended, or explained, especially where the essential ingredients of a “good” case are in existence: a supportive doctor; a position/duties which are incompatible with the type of medical conditions one suffers from, etc.

However, I receive telephone calls periodically where the individual simply has waited “too long”.  Thus, to clarify: If you’ve been denied twice by the Office of Personnel Management, and you have a Hearing before an Administrative Judge 3 days from today, then you have probably “waited too long” (although, if you can get a postponement, or suspension of the case, there may still be time). If you’ve been denied by OPM and the Merit Systems Protection Board has already denied your case, then you have probably “waited too long”.  Or, if you have been denied by OPM and by the MSPB and by the Full Board, then you have probably “waited too long”.

I hope that I am getting the point across by overstating the case — while each individual must decided when it is the “right time” to get a FERS lawyer to help in filing for disability retirement cases, and yes, while I take on cases at all stages of the process, the point is quite simple: It is better to have the expertise of an experienced attorney earlier, than later. In most case, that means at the very beginning of the process.

Sincerely,

Robert R. McGill, Esquire