Federal and Postal Disability Retirement: To Enter the Gates Blindly

Being naive is a quality and character trait which is distinguishable from innocence; in this world where information and the opportunity to obtain wisdom is vast and limitless, retaining the former quality may be unpardonable, whereas maintaining a level of innocence may reveal a life of self-discipline, where one has deliberately placed lines of demarcation around one’s life, and insisted upon not being sullied by the world around us.

One can remain innocent, yet not be naive.  While the converse may also be possible, it is important not to deliberately avoid the harsh reality around us.

Thus, in preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important that one enters into the metaphorical gates of the U.S. Office of Personnel Management with eyes of wisdom and experience, and not be saddled with the blind naiveté of thinking that the administrative process will be one of fairness and just analysis.

Assume that OPM will attempt to selectively read medical reports and records with an eye to deny; presume that they will ignore crucial evidentiary documentation which upholds one’s case; expect that legal “triggers” such as the Bruner Presumption or the holding in Trevan will be unimpressive.

That is why that which may be implicit, needs to always be made explicit, and repetitively so.  While it may be advantageous for one to enter the proverbial pearly gates with innocence, to enter through the gates of OPM with naiveté is merely inviting a door slammed shut.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Efficiency and Effectiveness

What does it mean to be “efficient”?  Is it distinguishable from being “effective”, or are the two inseparable?  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important to be effective in submitting a paper presentation to the Office of Personnel Management.

Efficiency, while helpful, is not necessarily a precondition in order to be effective.  In an inverse manner, the U.S. Office of Personnel Management is very effective in its procedural approach — the laws support such effectiveness, in that their decisions, timeframes and arguments are effective in their very finality (leaving aside the issue of appeal rights, of course).  But is OPM efficient?  Most would argue that because of the recent inefficiencies reflected by their case-load backlog, that one could hardly describe OPM as being very “efficient”.

Thus, “effectiveness” and “efficiency” are two distinct concepts which are clearly separable.  If one were to choose which of the two characteristics one should embrace in preparing, formulating and filing for Federal Disability Retirement benefits with the U.S. Office of Personnel Management, it would clearly be the former (effectiveness), as opposed to the latter (efficiency).  For, while time will fade, the final decision of whether one gets an approval or a denial in a Federal Disability Retirement case will not.

Being effective in fighting a case is the more important of the two characteristics, and sometimes, when one needs to be effective, one is not terribly efficient in the process.

Sincerely,

Robert R. McGill, Esquire

FERS Medical Disability Retirement: A Fair Hearing

It is a common complaint against the Office of Personnel Management that the particular Claims Representative who reviewed the file and issued a denial in a Federal Disability Retirement application failed to look at, or review, the medical evidence; that the denial letter was merely a restatement or regurgitation of a template referring to a 7-part criteria, and makes statements which could easily have been “cut and paste” from a thousand other such disability denials.

Indeed, there have been times when references to a denial were clearly (and mistakenly) extracted from another file, where the names of doctors and medical documents are referred to which have no relation to the particular individual, and are clearly mixed in from another case.

To be fair, a counter-argument to such criticism is that there is no bureaucracy, with so many cases to review and properly evaluate, and with so few personnel and staff to undertake the massive workload, that could or should “reinvent the wheel” each time a case is set to be reviewed.

Obviously, certain language that is applicable in all (or most) cases will be re-stated, and templates used where such have been standard language used in the past.  Applicable language and statements which merely reiterate the legal and statutory criteria; introductory remarks; conclusory statements — they are all part of a paradigm and template which any administrative bureaucracy may apply.

But the criticism goes much deeper than that:  It is often the case that, clearly, the OPM Disability Claims Representative who wrote the denial did not even read his or her own denial.  Proofreading is an essential part of reviewing, writing, and issuing a decision.  OPM must ultimately realize that each decision is an important, crucial, and often critical point of importance in the life of the applicant.

It is a Federal or Postal worker who has previously dedicated many years of his or her life to a career with the Federal Sector, and the applicant for FERS Disability Retirement benefits deserves a fair hearing.  A fair hearing is defined by a careful evaluation of the particular case.  That is not too much to ask for.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Government Employees: OPM, Authority & Rights

The decision-making process in filing a Federal Disability Retirement application under FERS or CSRS is placed into the hands of an administrative agency known as “The Office of Personnel Management“.  

OPM, as the acronym which the agency is known by, is the administrative bureaucracy which makes a determination on each individual Federal Disability Retirement application, after reviewing the submitted medical records, Statement of Disability as formulated and presented by the Applicant and his or her Attorney; the Supervisor’s Statement; The Agency’s Efforts for Reassignment and Accommodation — in other words, the full compendium of the evidence, based upon a legal standard which is low on the totem pole of legal standards — that of “Preponderance of the Evidence“.  

It is helpful to understand that the Office of Personnel Management is merely following the statutory procedures as created and mandated by law:  OPM, as the first-line administrative agency, must make an initial determination on a Federal Disability Retirement application under FERS or CSRS, not because they want to, desire to, like to, etc. — but because they are the designated entity set up to do so.  They have the “authority” under statutory mandate to make a determination of eligibility at the “First Stage” of the process, as well as at the “Second Stage” (the stage often known as the “Reconsideration Stage”) of the process.  

As an inverse matter, however, the individual Federal or Postal applicant has the “right” to dispute any negative determination made by the Office of Personnel Management at either of the first two stages of the process.  

It is important to distinguish between the conceptual differences and distinctions between “Authority”, “Rights”, and the use of the term “right” as in “right or wrong”.  OPM has the authority to make an eligibility determination on a Federal Disability Retirement application because they are statutorily mandated to do so; the individual Federal or Postal employee has the right to appeal such a decision; the fact that OPM may have the right to deny a Federal Disability Retirement application under FERS or CSRS does not mean that they are “right” in doing so; they merely have a statutory authority, and nothing more.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Reasons & Conclusions

In a denial letter from the Office of Personnel Management for a Federal Disability Retirement application filed under FERS or CSRS (which, if received, a Federal or Postal employee must file a Request for Reconsideration within 30 days of the date of the denial letter), the connection between the reasonings given, and the conclusions arrived at, will often be missing.  

Often, OPM will tangentially or in a cursory manner refer to various medical documents which were submitted with the original Federal Disability Retirement packet, or actually extrapolate a selective quote from a medical report or office note, and even make it appear as if a full and complete evaluation of the submission has been performed.  Thereafter, a conclusory statement will be proposed, often with a logical pretext of:  “Therefore, your application is denied.”

However, there is a vast difference between referring to various medical reports or statements, and evaluating such reports and statements in order to arrive at a proper legal conclusion based upon the evidence submitted.  It is rare that the Office of Personnel Management engages in the proper evaluative process in determining whether or not a Federal or Postal worker’s Federal Disability Retirement application meets the applicable legal criteria.  That said, such lack of evaluative and analytical process is legally required, and there must be a logical connection between the reasons given, and the conclusions reached.  Such lack of engaging in the process must be pointed out, but it must be done in a “diplomatic” manner.  Diplomacy is best engaged in by diplomats; similarly, legal issues are best tackled by lawyers.

Sincerely, Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Denial Letter

During this Holiday Season when Federal and Postal employees who have filed for Federal Disability Retirement benefits under FERS or CSRS, who are anxiously awaiting the decision from the Office of Personnel Management, a denial letter from OPM can appear disproportionately devastating.  Christmas and the New Year tend to bring difficulties precisely because it is seen as a season of celebration, when families get together, where work continues, but an expectation of being “joyous” pervades.  At such a time, a denial of a Federal Disability Retirement application from the Office of Personnel Management can be a seeming conclusion to a long wait.  It is not.  

Do not become discouraged just because someone at OPM has “decided” that your Federal Disability Retirement application did not “meet” the legal criteria.  Set the denial letter aside for a day or two (so long as it is not nearing the 30-day period to either file for Reconsideration or an appeal).  Then, proceed to fight it.  

Don’t let the Holiday Season become confused with the right to file for, be eligible for, and be entitled to Federal Disability Retirement benefits under FERS or CSRS.  The filing of an application for Federal Disability Retirement benefits is a process which may take 6 – 8 months, or longer if it is needed to go to the Reconsideration Stage, or to the Merit Systems Protection Board.  

Do not get discouraged; instead, fight for your benefits.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Office of Personnel Management

The Office of Personnel Management is taking a long time to process Federal Disability Retirement applications and benefits, at all levels of the process.  It is not something which can be corrected in the short term, except with patience and polite persistence.  From their point of view, the people working at the Office of Personnel Management are doing their best in reviewing and evaluating each Federal Disability Retirement case, and attempting to process all approved cases as expeditiously as possible.  But from the perspective of the individual applicant, whether awaiting for a decision by OPM or for payment because an application has already been approved, any delay beyond the normal, expected time-frame (and there is no timetable which is “set in stone” with OPM) is one which is unacceptable.  If an individual’s Federal Disability Retirement application has already been approved and that person is receiving interim payments, then he or she is awaiting for finalization of the case; that person, at least, is receiving some payment, and should be thankful for that, because there are many others who have gotten an application approved but has been waiting for months without any pay at all.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: Listing the Medical Conditions

The rule on an application for Federal Disability Retirement benefits under FERS or CSRS is that, once the application is filed with the Office of Personnel Management, the application cannot be amended or modified with respect to the “list” of medical conditions.  Thus, on the Applicant’s Statement of Disability (SF 3112A), one must list the medical conditions upon which the entire application for eligibility is based.  Once it is filed with OPM and a CSA Number is assigned to the case, you are restricted from being able to “add” to the list of medical conditions which are delineated on your statement.  This is fair enough, if one stops and reflects upon it, for a number of reasons.  For one thing, it would be unfair to have the right to change the basis upon which one has filed for Federal Employee Disability Retirement benefits under FERS or CSRS.  For another, OPM must be able to begin the process of evaluating the eligibility of a case without the potential for modification of the medical conditions, or the adding or subtracting of the underlying basis of the claim.  However, the mere fact that one cannot “add” to the list of medical conditions, does not prevent one from submitting additional supporting medical documentation (even from a previously-unnamed medical provider) which would support the already-listed medical conditions. 

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Logical Argumentation

Reading a denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management is often a fascinating exercise in attempting to imply, infer, “read between the lines”, assume and presume what the basis of the denial is/are.  Just as gathering a 6-inch thick set of medical records and attaching them to a Federal Disability Retirement application does not constitute a logical, persuasive argument that you are entitled to Federal Disability Retirement benefits, conversely, referring to submitted medical documentation and acknowledging their existence, then concluding:  “You have not submitted sufficient medical documentation to be eligible for Federal Disability Retirement benefits” — does not constitute a sufficiently informative denial.  As the applicant must meet the legal criteria, the Office of Personnel Management has a duty and obligation to review it fairly, evaluate it objectively, and apply the laws and legal criteria.  If OPM decides that the application does not meet the legal criteria, then OPM has an obligation to provide a sufficient explanation that is clear, cogent, and logically persuasive.  Anything less would not meet the statutory obligation that OPM is under.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Decisions

One would like to think that the Office of Personnel Management takes each case independently, reviews each case according to the merit of that particular case, and that, based upon a fair, independent and careful evaluation process, a decision is made for an approval or disapproval.  When a decision from OPM reaches a Federal Disability Retirement applicant under FERS or CSRS, that applicant will see such a decision, and that decision alone.  When an attorney who specializes in OPM Disability Retirement sees such a decision, it is clearly based upon a template, and after viewing thousands of such template-based decisions, a pattern begins to develop. 

Templates are not in and of themselves a negative thing; one need not “reinvent the wheel” each and every time.  It is only when a template does not “fit” a particular case, or where it is clear that a decision contradicts the substantive content of the disability retirement application or the documentary attachments, that there is any negative issue with a template.  Fortunately, most OPM decisions are fair and properly evaluative; every now and then, however, it is evident that a template-driven decision has been issued without thought or fair analysis.  That is when a true problem has arisen.

Sincerely,

Robert R. McGill, Esquire