Federal Disability Retirement: Surprise in the Universe of Reconsiderations

Until the science of Physics can implement the ability of molecular and particle transference technology (i.e., “Beam me up, Scotty”), there is little potential of resolving the Cartesian mind/body dualism (i.e., that French Philosopher Rene Descartes, who bifurcated the world between the material and the spiritual). But such dualism in philosophical terms does not mean that we can be at two places at one time; or even attempt to be “objective” when the subjective “I” is the very same person who is attempting to appear objective.

In Federal Disability Retirement law, when the U.S. Office of Personnel Management issues a denial letter, the customary response by the denied OPM applicant, whether a Postal Worker or a non-Postal Federal Worker, is that he or she is “surprised” by the initial denial because of the strength, completeness, and thoroughness of one’s Disability Retirement packet.  But that should be a given.

No one who files with OPM should do so without meeting the requisite foundations of thoroughness or completeness.  But this is where the problem is:  the very person who determines that a Federal Disability Retirement application is sufficient, is the same person who suffers from the very medical conditions of which the application speaks about.

The subjective/objective coalescence makes for a difficult mind/body dualism, in that the one who suffers from the medical condition can hardly assess and evaluate, in an objective manner, the strength of the Federal Disability Retirement application.

Thus, the Cartesian mind/body dualism lives on, and until Captain Kirk can guide us otherwise, such bifurcated dualism will continue to pervade all Federal Disability Retirement applications, whether under FERS or CSRS, and the denials which follow will still have the familiar response of, “Surprise!”

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Denials

Denials come with an unexpected force and impact; for, in every Federal Disability Retirement case, there is the expectation that the application itself merits close scrutiny and a belief that a proper review will persuade the OPM trier of facts that the Federal Disability Retirement application should be approved.

Indeed, from the perspective of the applicant, who is suffering from the medical condition itself on a daily basis, it is often a reaction of disbelief and anger when a denial is issued by the U.S. Office of Personnel Management.  But one must understand that this administrative process identified as “Federal Disability Retirement” is one which is not an “entitlement”, but rather, an adversarial process where proof, argumentation and persistent appellate procedures must be invoked at every step of the way.

That is why, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one needs to always prepare a case as if it will ultimately go to the U.S. Merit Systems Protection Board.

Further, it is understandably disappointing to read an OPM denial and find that the OPM case worker does not even mention or refer to much of the substantive medical documentation submitted, but instead blindly (and generically) issues a template of tired old phrases, such as, “You did not meet the legal criteria“; “The evidence did not show that…”

With hundreds of cases assigned to each OPM Case Worker, one must understand that denials are rarely personal; but in responding to a denial from OPM, one must be diligent, forceful, and approach it with the use of all legal tools available.

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

Federal and Postal Disability Retirement: The Strategy of Disheartening the Opposition

When Federal and Postal employees who have filed for FERS Medical Retirement benefits and have been denied at the initial stage of the process, many are sincerely disheartened.

In my initial contact with the denied applicant, there are multiple levels of reactions, including:  the denial letter points to legal criteria which they were unaware of; it refers to doctors notations which are taken completely out of context; they have completely ignored major portions of what the doctor has stated; OPM points to legal criteria which has been met, but which OPM simply denies that it has been met.

What can be done?  This is the strategy of disheartening the opposition.

In other denials, it is simply a matter of referring to a doctor’s report here, and to a medical notation there; then to simply declare:  You have not submitted sufficient medical documentation and fail to meet the legal criteria to be eligible for Federal Disability Retirement benefits.

What can be done?  No explanation; just scant references, then a unilateral declaration.  Again, this is the strategy of disheartening the opposition.  What to do?  Don’t get disheartened.  Respond.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Template Approach

The Office of Personnel Management essentially renders both approvals and denials of a Federal Disability Retirement application with a “template” approach.  This is not surprising, but it is little noticed, and this is why:  For disabled Federal and Postal workers who file for Federal Disability Retirements benefits under FERS or CSRS, and who are not represented by a federal disability attorney, it is their “one-and-only” exposure to the Office of Personnel Management.

Thus, if an approval is received, that approval is the first and only time of having any correspondence from the Office of Personnel Management.  Similarly, if a denial is received, then that is the first exposure and contact from the Office of Personnel Management.  There would be no way of knowing whether or not the approval letter, or the denial letter, was or was not a “standard template”.  Certainly, in a denial letter from the Office of Personnel Management, there are references to submitted medical documents, or supervisor’s statement, or some other document which was part of the Federal Disability Retirement application; but the remainder of the denial letter is in “template form”. 

However, when an attorney represents a Federal or Postal worker and receives an initial denial letter, or a denial at the Reconsideration Stage, it is an obvious issue, because any attorney who specializes in Federal Disability Retirement law has viewed hundreds, if not thousands, of such letters.  Why is it important to recognize that the format is in “template” form?  For many reasons.  The type of template; from whom the template is received; the extent of the template; the issues presented in the format; these are all helpful for any experienced Federal Attorney who specializes in Federal Disability Retirement law, to successfully answer such formatted denials.

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