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 denies a Federal or Postal 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 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 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 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

OPM Disability Retirement: Great Expectations

The title of this blog, borrowed (of course) from Dickens’ great novel, refers to the contrast between the reality of X and the mental projection of what should be, in the mind of an individual.

What does this have to do with filing for Federal Disability Retirement benefits under FERS or CSRS?  When an application for Federal Disability Retirement benefits under FERS or CSRS is carefully prepared, meticulously gathered, painfully delineated, and thoughtfully prepared, one has the (logical) expectation that, when it is reviewed and evaluated by the Office of Personnel Management, that a certain minimal level of intellectual discourse would be engaged in.

In other words, it should not be an unrealistic expectation that, if it is denied or disapproved, that the person who is writing the letter of denial would provide some fundamental delineation of reasons; some intellectual discussion addressing certain aspects of the Federal Disability Retirement packet; even (God forbid) a revelation of some logical discourse with a legally viable basis in making an argument.

Alas, such an expectation would be too much to bear.  The great chasm between the reality of the process and the expectation which one has, is one which will lead only to disappointment.  If a denial of a Federal Disability Retirement application comes, it is a rare event that the Office of Personnel Management engages in any justifiable discussion.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Chasm between Denials

From the perspective of an individual Applicant for Federal Disability Retirement benefits under FERS & CSRS, the individual applicant does not normally observe some other person’s Federal Disability Retirement application, and therefore never has the opportunity to see the “greater process” at work, or patterns of behavior on the part of the Office of Personnel Management.  Yet, there are indeed patterns, and that is why an experienced attorney who has seen literally thousands of Federal Disability Retirement cases over numerous years, has an advantage in responding to OPM’s denials.  Experience lends itself to greater observation.  Experience over time reveals certain patterns.  And patterns of behavior can reveal important principles. 

Certain OPM Representatives provide detailed and (often) irrelevant factual references which can be ignored; others like to “cite the law” and believe that such citations appear irrefutable and authoritative; and still others give scant discussion to laws or to facts.  Thus, there often appears to be a great chasm between the types of denials.  Whether or not there are such differences, an applicant who has received a denial for his or her Federal Disability Retirement case needs to respond to any such denial with a three-pronged attack:  Medical refutation; Factual correction; Legal assertion.  Such an attack will cover any chasm which might exist between the different individuals who send out a denial letter.  More importantly, it will cover the necessary elements for winning a Federal Disability Retirement case.

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

OPM Disability Retirement: An Additional Problem with Answering an OPM Denial

Spring and summer are finally upon us; the warmth of the sun finally brings some hope that the multiple series of snowstorms may be finally behind us (now that I have said it, the chances are exponentially multiplied that we will accumulate an additional 20 inches of snow in March).  Thoughts of the beach will soon become visually real, as opposed to virtually experienced.  Sand.  The metaphor of the “shifting sand” is one which is applicable to the Office of Personnel Management in its denial of a Federal Disability Retirement application under FERS or CSRS.  Those of you who have followed my stream of consciousness on the issue of templates, denial letters and the arbitrary nature of OPM’s decision-making process, will not find it surprising to find that OPM merely shifts, changes positions, and dances around (albeit, not always gracefully) any attempt to “corner” the argument which purportedly is the basis for a denial of a Federal or Postal Disability Retirement application

Do not, however, underestimate the importance of properly, directly, and clearly answering the concerns of an OPM denial.  It is not enough to gather more medical documentation and sending them in.  It is not enough to address, point by point, the basis of a denial letter.  One must corner, clarify, and clearly define the basis of an OPM denial, then refute them.  This way, if it is denied a second time, and the case goes before an Administrative Judge at the Merit Systems Protection Board, the AJ will see that the issues previously brought forth by OPM have already been addressed, and that any necessity for a Hearing may be avoided by clarifying any remaining concerns which the OPM representative may need to search for and articulate. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Rationale

Too much time is often spent on the “rationale” or “reasons” for a denial from the Office of Personnel Management, under the “Discussion” Section of a denial letter.  By “time spent”, however, is not meant that one should not selectively rebut, refute and address some of the reasons delineated in an OPM denial letter; rather, what too many people do is to complicate matters by “reading into” the reasons given for the denial. 

One of the jobs of an attorney who specializes in Federal Disability Retirement law under FERS & CSRS is to prepare an application for Federal Disability Retirement benefits, rebut a denial, or file an appeal to the Merit Systems Protection Board, based upon one’s experience, wisdom and sense of that which OPM is looking for.  This is accomplished by having learned from a myriad of sources:  from seeing the types of prepared disability retirement packets which have been successful in the past; from learning from past legal arguments and rebuttal arguments as to which have been most persuasive for OPM; and from having conducted multiple Hearings before the Merit Systems Protection Board and learning exactly what the Administrative Law Judge has been most persuaded and convinced by.  Further, having read countless denial letters by people who have attempted to file for Federal Disability Retirement benefits at the first stage without an attorney, it is important to focus upon the relevant issues which OPM is seeking, and to disregard those issues which are peripheral or irrelevant.

Sincerely,

Robert R. McGill, Esquire