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 
FERS Disability Retirement Lawyer

   

Federal Employee Medical Retirement: Keeping it Simple

Simplicity merely covers the complexity behind the beauty of the uncomplicated.  Indeed, one only has to look upon an Apple product, or a modern automobile, to recognize the underlying complexities which went into the production of such simplicity.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is often a desire to respond to an OPM denial by attempting to understanding the apparent ‘complexity’ of the denial.  By ‘apparent’ is meant the following:  Most, if not all, of OPM’s denials are regurgitated templates from thousands of previous denials, and quotations of alleged legalese notwithstanding, the basic components of a Federal Disability Retirement case do not change just because the language used attempts to complicate matters.

In the end, driving a technologically advanced automobile still requires hands on the steering wheel, and a foot on the gas pedal and the brake (hopefully, not both at the same time).  All the rest are simply “whistles and horns” to make it appear worth the price tag.

Sincerely,

Robert R. McGill, Esquire

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

CSRS & FERS Medical Disability Retirement: Against Reason

One can put in all of the necessary and requisite effort into preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, obtain a comprehensive medical narrative report with supportive office and treatment notes, verifying MRIs and other diagnostic evidence, follow the informational guidelines from various research sources — and provide a compelling case based upon rational and reasoned argumentation — and still get a denial from the Office of Personnel Management.  

This happens often enough, and one must conclude that, even when a Federal Disability Retirement application is prepared with the utmost of care and effort, a decision of denial can be issued against reason, or the reasons provided are selectively chosen and manufactured.  It is therefore well to understand the entirety of a Federal Disability Retirement process as necessarily involving multiple stages, with internal checks and balances to ensure the “fairness” of the administrative procedure.

Thus, the first two stages of the process (the Initial Stage; then the Reconsideration Stage) are internally reviewed by the Office of Personnel Management.  The Third and Fourth Stage of the process (an appeal to the Merit Systems Protection Board; a Petition for Full Review) may be considered as “administrative judicial review” stages.  Then, an appeal to the U.S. Federal Circuit Court of Appeals.  

Each stage allows for a “check” upon the other stages of the process, and by imposing the right of the disability retirement applicant to access such “checks”, it allows for the “balance” of the process — thereby (hopefully) negating and nullifying what may have initially been an irrationally-based decision.  

As Western Culture has a history of recognizing the power of rationality, it is well that an institutionalized process of “checks and balances” attempts to supersede legal decisions which go against reason.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Different Denials

After having formulated, prepared and filed a Federal Disability Retirement application under FERS or CSRS, the period of long waiting ensues with the review process of the Office of Personnel Management (having survived the waiting process through the Agency).  

At this initial stage of the application, the Federal or Postal applicant will be forced to wait (anxiously) for a decision by OPM.  Thus, when the Office of Personnel Management makes a decision at the First Stage, and that decision is a “denial” of the Federal Disability Retirement application, there is a spectrum of possible responses — immediate, emotional, angry, frustrated, etc.  

Instead, however, the proper response is to recognize that this initial denial is merely part of a greater process which involves many steps, procedures, responses and replies.  Indeed, part of the reason why a Federal or Postal employee feels the pressure and anxieties is because one tends to view the application process as a “one-time” deal — where submission of an application should be reviewed by OPM and an approval is granted.  This can be true — but should be viewed as merely an anomaly, and not the standard.  

While having a Federal Disability Attorney prepare the application for Disability Retirement should increase the chances of an approval at any level of the process, it is nevertheless first and foremost a process involving multiple steps and stages, with potential pitfalls and denials throughout.  Thus, a Federal Disability Retirement application may be initially denied, then responded to, then denied a second time at the Reconsideration Stage of the process, and require a further response.  

Different denials require different responses, not because they are not all part of the same process (I know, the double negative gives one pause), but because each denial is given by different departments and personnel at the Office of Personnel Management. Remember, one must prove one’s eligibility for Federal Disability Retirement benefits from the Office of Personnel Management, and proof means that there is the potential for an adversarial component of the process.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Reconsiderations

When a Federal Disability Retirement application under FERS or CSRS is denied at the first stage of the process, a Federal or Postal worker who filed for the benefit has the administrative right to request that it be “reconsidered” by the Office of Personnel Management.  Once requested, the case file is turned over to the “Disability Reconsideration Branch” of the office, and will be reviewed and evaluated by a Disability Specialist — not the same person who reviewed it at the Initial Stage of the process. 

A person who has filed for Federal Disability Retirement benefits has thirty (30) days to Request Reconsideration.  While the 30-day period may arguably have some flexibility based upon when the applicant actually received the denial letter, it is nevertheless a good policy to adhere to the 30-day time-frame by counting the date of the denial letter as the “beginning” date.  Obviously, it is better NOT to be placed in a position of having to argue whether or not the applicant met the 30-day deadline.  Further, it is best to send it in via a means where confirmation of receipt can be shown.  OPM is a large bureaucracy, and things get lost in the morass of the volume of submissions.

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

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Cost of Doing Nothing

The Office of Personnel Management has been sending out a number of decisions, and many have been denials.  They seem to come in batches; whether by coincidence, or in systematic fashion, OPM has tended in recent months to send out denials which fail to explain, leaving aside any concept of “discussion“, the basis of their denials.  

The irony of having a section entitled, “Discussion”, then merely delineating a regurgitation of the “applicable criteria to be eligible for Disability Retirement benefits“, then making a conclusory & declarative statement somewhat in the form of:  “You do not meet criteria X and Y” is hardly a “discussion” of the issues.  

Moreover, even in the denials which appear to be lengthy is the number of sentences, paragraphs or pages, the content is devoid of any substantive discussion of the issues.  It is more often simply a reference to a doctor, without any rational basis given as to what is lacking, but merely ending with a statement of conclusion, saying, “No objective medical evidence was provided,” or “The medical evidence does not show that…”  

One would expect that a logical structure of reasons would be provided, but such an expectation would fall short of what actually occurs.  The real problem is that, in reading such a denial letter, one doesn’t know where to start, what to answer, or what additional information needs to be submitted.  Thus, you must “read between the lines”.  

The cost of doing nothing is to get a further denial; that is simply not an option.  The best option is to reinforce what is already there.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Approvals & Disapprovals

Approvals of Federal Disability Retirement applications under FERS & CSRS, for an attorney who specializes exclusively in that area of law, are self-evidently a professionally satisfying bit of news.  If the OPM Disability approval occurs at the initial stage of the Federal Disability Retirement process, all the better; it means that everything was properly prepared and executed. 

Disapprovals, of course, constitute a temporary setback.  It is a disappointment.  Professionally, it means that the Office of Personnel Management found something wanting; it may not be substantive; it may be as simple as the OPM Representative being in a bad mood on a given day. At the same time, it is a challenge for the Attorney — a time to redouble one’s efforts, discern what is needed to win at the Reconsideration Stage, and win the full confidence of the client.  Winning a case only lasts for the day of the win.  Every attorney worth his or her salt wants to win every case. 

Watching the Olympics during these couple of weeks, it is interesting to see how “winning” is an inherently human desire.  But as with everything in life, it is not just winning; it is how one wins.  Watching each athlete conduct him or herself, it is interesting to observe how there are “winners for the moment”, and “winners in a greater-context-of-life”.  This is not to even discuss the “losers” — or those who believed they should have gotten a gold medal, but instead had to “settle” for silver or bronze.  How one loses at anything in life —  a sporting event, a contest, competition, or a legal case — and how one responds to the “loss”, is what is important.

Sincerely,

Robert R. McGill, Esquire