OPM Disability Retirement: The Response to the Denial & Properly Reading the Signs

Responding to an OPM Disability Retirement application denial is fraught with dangers of addressing the right issue; whether such a response does so adequately; and the determination of the extent of what constitutes “adequacy” in such a response.  Properly reading the “road signs” is the key to a successful response.  For, to begin with, cogency and brevity are not characteristics which are common in an OPM Disability Retirement denial.

The U.S. Office of Personnel Management utilizes multiple templates in referring to the sufficiency of legal and documentary proof, and will often shift arbitrarily in declaring why, and to what extent, a Federal or Postal disability retirement application did not meet the standard of proof required, which is governed by a “preponderance of the evidence”.  They will, of course, often cite various legal “criteria”, and number them accordingly, as in:  “You did not meet Criteria Number 4 in that…”

In responding, it is important to address the critical issues which OPM regards as central to its decision, and as all roads lead back to Rome, so it is with a response to a denial from the U.S. Office of Personnel Management in a Federal Disability Retirement case: All roads lead back to the original nexus of whether a Federal or Postal employee can perform all of the essential elements of one’s job within the context of the severity and extent of one’s medical conditions, and to the issue of whether or not a “reasonable” accommodation could have been provided by the individual’s agency.

Broken down into its foundational components, the pathways can be ultimately discerned, and the proverbial fork-in-the-road leading one to the right way back to Rome will often depend upon how the traveler interprets the signs.

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 Federal Disability Retirement benefits under FERS or CSRS, 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

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire