Postal and Federal Disability Retirement: Time for Comparison and Double-checking

Upon an initial denial of a Federal Disability Retirement application, the Federal or Postal employee has a right to Request Reconsideration of the denied Federal Disability Retirement application within thirty (30) days of the date of denial (the rules allow for a later date — 30 days from the date of receipt — but it is always advisable to utilize the date of the letter, as that date can obviously be verified).

If the Federal or Postal employee is denied a second time, then there is a right to an appeal to the U.S. Merit Systems Protection Board.  Again, the timeframe within which one must file an appeal to the MSPB is identical to that which one has at the Reconsideration Stage of the process — 30 days, or the later one of receipt of date of the letter.

Often, when one reads through a denial from the U.S. Office of Personnel Management, there is a growing suspicion that OPM has either ignored, overlooked, or otherwise has never received for review, important and significant documentation, whether medical or otherwise, which should have been part of the file.

Once an appeal is filed with the U.S. Merit Systems Protection Board, the U.S. Office of Personnel Management is mandated to forward a complete copy of the file to the “Appellant” (the one who is filing the appeal) and to the attorney for the Appellant.  Once this file is received, it is important to “compare notes”, and to determine whether the “missing piece of information” is indeed missing, and may need to be re-submitted.

That is the time for comparing notes (“files”, in this case), and double-checking whether OPM has all of the information it should have.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Medical v. Legal

Issues concerning Federal Disability Retirement applications under FERS or CSRS, both for Federal and Postal employees, rarely “conflict” with the goal of obtaining the proper medical care for a medical condition which one suffers from.  First and foremost, one should seek to obtain the proper medical care, and undergo all of the appropriate treatment modalities necessary to take care of the medical condition. 

If that medical condition — despite treatment, intervention, medication regimens, etc. — fails to allow for recovery sufficient to return to a level of functionality such that the Federal or Postal Worker can continue to perform all of the essential elements of one’s job, then one should certainly consider preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS. 

Throughout the process, however, the primary focus should always be upon obtaining the proper medical care.  Logically, the Merit Systems Protection Board has held in various Federal Disability Retirement cases that where such treatment modalities as a medication regimen has been refused, then such refusal may be a basis for denial of a Federal Disability Retirement application.  Why would this be?  The reasoning is that there is an intervening cause for the continuation of the medical condition which prevents one from performing one or more of the essential elements of one’s job — not the medical condition, but rather the refusal to follow a prescribed course of medical treatment. 

Sometimes, however, failing to follow a prescribed medication regimen may not be an outright “refusal”, but rather a recognition on the part of the Federal or Postal employee that taking such medications while working will further impede one’s ability to perform the essential elements of one’s job.  This is where an intersection between the Medical and the Legal can “conflict”.  The best thing to do in such a circumstance, of course, is to consult with the treating doctor and explain the potential conflict.  There may be no resolution, but it is always best to have such attempts annotated so that it can be “proven” later on, if needed.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Initial Application, Reconsideration & MSPB Appeals

Each Stage of the process in attempting to obtain a Federal Disability Retirement application under FERS or CSRS offers a distinct, yet similar, challenge.  Do not be fooled by responding to a “template” approach; while the Office of Personnel Management may respond in an indifferent, antiseptic manner, a Federal or Postal employee who must respond to OPM’s denial at each stage of the process must pinpoint what OPM is looking for, and respond appropriately.  Indeed, it is the distinction which one observes, which makes all of the difference in the case.  

Often, it is clear that OPM’s denial at the Initial Stage of the process, as well as a denial at the Reconsideration Stage of the process (which then compels an appeal to the Merit Systems Protection Board), is merely a regurgitation of thousands of previous denial letters, with some minor insertions which are meant to appear “as if” the denial letter has been tailored to a particular case.  

Thus, references to a particular physician’s letter, and even extrapolating a quotation from a doctor’s note or narrative (often something like, “Your doctor stated that you were recovering well from your surgery,” or “Your psychiatrist stated that the medications were working”) have the effect of personalizing a denial letter.  Yet, the remainder of the denial letter is in an antiseptic, template form, and it is clear that you are merely one of hundreds & thousands of responses written by OPM’s representative.  However, while OPM has the power to generate such template-driven denials, the individual Federal or Postal Worker must respond in an independent, individualistic manner.  It must be based upon one’s particular case, and thus the response must not be a “generic” one, but one based upon the uniqueness of the case.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the third stage of the administrative process in attempting to obtain Federal Disability Retirement benefits under FERS or CSRS.  By this Stage, while the Office of Personnel Management has been both the “judge and jury” for determining one’s eligibility for Federal Disability Retirement benefits, the case is then handed over to an Administrative Judge to be the arbiter of such determination.

While it is advisable for a Federal or Postal Worker to obtain a FERS/CSRS Disability Attorney from the start of the administrative process, it is of even greater importance to consider obtaining proper legal representation before proceeding down the path of the MSPB.  This statement of advising any Federal or Postal employee to obtain proper representation at the MSPB is made for several reasons, not the least of which includes the following:  The MSPB is the last “stage” of the process in which a Federal or Postal employee who is seeking to obtain Federal Disability Retirement benefits may submit evidence in order to prove one’s case (with some special exceptions); any basis for an appeal, upon the chance that the Administrative Judge rules against you, must be established during the Hearing of the case at this stage; and since this stage is the arena of “the law”, it is important to be familiar with the most recent case-laws which govern Federal Disability Retirement.  The MSPB is not a place to feel one’s way through; it is the playground where the “grown-ups” play.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: When to file for an MSPB Hearing

Filing for Federal Disability Retirement benefits under FERS or CSRS is what is generically known as falling under “Administrative Law“.  That is, Federal and Postal employees must undergo the administrative process of filing with a Federal Agency, the Office of Personnel Management, in an attempt to prove by a preponderance of the evidence that one is eligible for, and therefore entitled to under the law, Federal Disability Retirement benefits under either the Federal Employee’s Retirement System (FERS), the Civil Service Retirement System (the “older” system, or CSRS), or its hybrid, the CSRS-Offset.

If the Agency which makes the decision on eligibility, and it denies a Federal or Postal Service employee’s application twice (both at the Initial application Stage of the process, then again at what is termed the “Reconsideration Stage” of the process), then the disability retirement case can be appealed to an Administrative legal forum specifically set up to hear such cases (as well as many other types of cases involving Federal and Postal employees).

In order to file with the Merit Systems Protection Board (the “MSPB”), one must have received a “final denial” letter from the Office of Personnel Management — and, by “final”, is merely meant the “second denial” letter.  Thus, in order for the Merit System Protection Board (MSPB) to consider an appeal for one’s Federal Disability Retirement benefits, the Federal or Postal employee must have been denied by the Office of Personnel Management on the first two tries — first, with the Initial Application, then for an appeal or the ”Reconsideration” of that application.  Only then may a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS, CSRS or CSRS-Offset file an appeal with the MSPB.

Sincerely,

Robert R. McGill, Esquire