Federal Employee Medical Retirement: The Crucial Reconsideration Stage

In engaging the U.S. Office of Personnel Management for Federal or Postal Disability Retirement benefits, whether under FERS or CSRS, it is important to recognize the differences between the administrative and legal stages involved.

There is, of course, the initial application stage; one cannot overemphasize the importance of proper preparation and compelling formulation of one’s Federal Disability Retirement packet, for the First Stage of the process.  However, regardless of the adequacy of one’s Federal Disability Retirement submission at this initial stage, there are going to be a certain percentage which are denied, and which therefore must be propelled into the Second Stage of the Administrative process.

This next step is often identified as the “Reconsideration Stage” in the process of attempting to prove one’s eligibility for Federal Disability Retirement benefits.  It is known as such, because at this stage, one has the right to have one’s case “Reconsidered”; in order to do that, however, you must notify the U.S. Office of Personnel Management within thirty days of the date of their denial letter, or within receipt — but one should be cautious of the latter timeframe, as it can be rather tricky, and thereby one should proceed on the assumption that the 30-day timeframe begins from the date of denial as reflected on the Letter of Denial, just to be on the “safe side” of things.  To ensure compliance, the undersigned attorney always requests the reconsideration via a trackable delivery device, so that proof of delivery can be shown if necessary.

This Second Stage of the process in attempting to become eligible for Federal Disability Retirement benefits is a crucial stage in the process, because if it is denied again at this stage, then one must file an appeal to the U.S. Merit Systems Protection Board, and put on one’s case before an Administrative Judge — a complex process which takes it out of the hands of the U.S. Office of Personnel Management and places it in an entirely separate determining entity.

While each stage of any bureaucratic process can be deemed “crucial”, it is this point of differentiation which makes the Reconsideration Stage unique:  it is the last chance before entering into the complex arena of legalese.  Thus, for those already confounded by the complexities of the administrative process, the land mines to be confronted at the Merit Systems Protection Board will only be exponentially multiplied.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Someone Else’s Argument

Have you ever sat with company at a dinner table, and engaged in a conversation where it appears as if you are continuing someone else’s conversation?  Or your presence is merely a substitute for an extension of a previous debate or discussion?  Where a topic is brought up, and immediately a barrage of critical attacks — of arguments you have never made, and of statements you don’t recall disseminating (and where this is only 5 minutes into the salad and you’ve barely tasted the first glass of wine)?

The problem with unfinished business is that the transference of what one wanted to say is normally unloaded upon the wrong subject.  Conversations, debates, forums of intellectual exercises in linguistic battles — it is a rare person who has been able to convey the full force of one’s collective thoughts and beliefs on the matter, and it is more often the case that one leaves with the regretful remorse of, “I wish I had brought that point up…”  But rarely do second chances present themselves in a satisfactory follow-up forum; unless you are the unfortunate object for an unexpected dinner invitation.

In responding to a denial of a Federal Disability Retirement application with the U.S. Office of Personnel Management, whether under FERS or CSRS, the applicant — through his or her Federal Disability Retirement attorney — needs to understand that the person who issues the denial will not be the same person who will review any additional submissions or legal arguments at the Reconsideration Stage.

It will be reviewed, in legal parlance, de novo.  As such, while the basis of the denial as issued by the Caseworker at OPM at the First Level should be taken into consideration, one should approach the case in light of the following question: To what extent will the Reconsideration Branch care as to the original basis of the denial of the first caseworker?  If it is being reviewed de novo, the approach should be to go over all of the elements — and to reinforce and amend those weak points, some of which may overlap what the first caseworker pointed out, others which may not.

It may not be the best approach to argue to a dinner guest who wasn’t present at the first round of arguments; the points you are trying to make may not be heard because the bell has already rung, and the fighter in the second round has been replaced with someone upon whom you have never previously landed a punch.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Cornering OPM’s Malleable Stance

At the initial stage of the process identified as “Federal Disability Retirement” from the Office of Personnel Management, whether under FERS or CSRS, it is often difficult for the Federal or Postal worker to grasp the various components which must be gathered, formulated, prepared and consolidated, in order to meet the legal criteria for eligibility.

Once submitted, if an approval is received from the Office of Personnel Management, then one need not be further concerned with whether or not the legal criteria was “met” (although one should still be vigilant in doing those tasks and preparatory work in order to retain and maintain one’s right to Federal disability retirement benefits).

If a denial is received from the Office of Personnel Management, then it is necessary to file a Request for Reconsideration within the thirty (30) day time period, and begin to determine which of the multiple issues OPM has delineated as being the basis of a deficient Federal Disability Retirement application.

Some attempt to do this via a “shotgun” approach — of spraying every answer available and hoping that some of the arguments, supplemental documents, statements, etc., hit the mark in some way.  A different approach is to selectively choose those issues which appear to be central to the case, and answer the essential ones, allowing for such answers to concurrently address the peripheral points brought out by OPM.  A third approach is to identify and consolidate OPM’s alleged basis for the disapproval, consolidate the issues into 2 or 3 main points, then “corner” the arguments by addressing them, concluding that the Federal or Postal employee has addressed the concerns of OPM and therefore OPM should not be able to change them at the Merit Systems Protection Board.

While an MSPB appeal is conducted “de novo” (“anew” or “afresh”, without regard to any previous determinations), it is nevertheless an effective methodology to point out the malleability of OPM’s varying stances, and thereby effectively streamline that which needs to be proven at the MSPB level.  A leopard which changes its spots too often loses its credibility, and making sure that OPM stays in one place is a useful tool in winning a Federal Disability Retirement application, whether under FERS or CSRS.

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

Medical Retirement Benefits for Federal & Postal Employees: Listing the Medical Conditions (Continued…)

If an individual who has filed for Federal Disability Retirement benefits under FERS or CSRS later finds, during the process of waiting for a decision or, between the time of an initial denial and during the Reconsideration Stage or an appeal to the Merit Systems Protection Board — that a previously unlisted medical condition has worsened, can he “add” that medical condition to his Federal Disability Retirement Application?  Can he file an “amended” SF 3112A, Applicant’s Statement of Disability?  The general answer is, “No”. 

However, one can certainly submit a medical report concerning such “previously-unlisted” medical condition if one can reasonably argue that the previously-unlisted medical condition was in fact listed, right there for everyone (i.e., the Office of Personnel Management) to see.  This issue comes up often enough to be of concern, especially because of the valuable time lost in being forced to “withdraw” an application for OPM Disability Retirement and to start all over again in order to add a “new” medical condition.  To safeguard against such a potential event, it is wise to read through the multiple medical conditions when putting together an OPM Disability Retirement packet, and decide which primary diagnoses to include, and at the same time, to “weave” into the narrative of the description of medical conditions, symptoms and areas of pain which can be reasonably interpreted to encapsulate potentially underlying medical diagnoses which may later become prominent and require greater focal emphasis.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Patience is a Necessity

I have said this many, many times:  If patience is a virtue, then Federal employees must be the virtuous of all people, especially those who are filing for Federal Disability Retirement benefits and waiting upon the Office of Personnel Management to make a decision.  Then, even after it is approved, it is often months and months until one’s case is finalized and taken out of the “interim” pay status to final pay status; or, if the case is denied at the First Stage and you have to file a Request for Reconsideration, submit additional medical and other evidence, file a Memorandum of Law to try and convince the Second Stage Representative that, indeed, contrary to what the First Stage Representative had argued, you have been in full compliance and meet with all of the criteria for eligibility for FERS or CSRS disability retirement benefits — which can take an additional 120 – 150 days.  Then, of course, if it is denied at the Reconsideration Stage of the process, you must file an appeal within thirty (30) days to the Merit Systems Protection Board, where the Administrative Judge is mandated by statute to conclude a case from the time of appeal within 120 days.  The entire “process”  — and this is precisely why I refer to the administrative procedure of filing for Federal Disability Retirement benefits under FERS or CSRS as a “process” — requires and demands patience.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Disability Retirement: Discretion in a Response II

In responding to an initial denial of a Federal Disability Retirement application before the Office of Personnel Management, it is important to remain professional, and not to “overload” the response with unnecessary or otherwise irrelevant responses.  Initial anger and disbelief over the selective criticisms contained in an OPM denial letter should not be reflected in a response to the denial.  Why not?  Because there is a good possibility that the case may be denied a second time, and it may appear before the Administrative Judge at the Merit Systems Protection Board.  Don’t write things to OPM that you will regret having an Administrative Judge — one who may be deciding your case — look at and read.  Thus, the “first rule”:  never write an immediate response back, because your anger and emotional disbelief will show itself.  If you need to “get rid” of your anger and expiate the emotionalism, then write your emotional response on a separate piece of paper, then set it aside.  Your “real” response will come later — when you can with a rational perspective, review the unfair and selectively biased denial letter, and begin to compose the serious response that your case deserves.  Or, better yet, get your attorney to do it.

Sincerely,

Robert R. McGill, Esquire