OPM Disability Retirements: As a Practical Matter

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By on April 4, 2017 in Retirement with 0 Comments

Frustrated Couple With Woman In Wheelchair Reading Letter

What can it possibly mean when we say, “As a practical matter, I think you should do X”? Was its opposite ever contemplated, as in, “We should do it in an impractical manner…”?

If not, then why explicitly declare X in contradistinction to a never-stated Y, unless there is another, more subtle rationale: That, instead of engaging in tangents dissociated from ordinary and pragmatic steps that affirm the necessary tools for daily living, it is a reminder that certain precautionary applications should be administered such that avoidance of mistakes with lasting consequences may allow for an easier time of it.

Often, in the ordinary course of living and the busy-ness of daily life, we overlook the precautions, reasonable steps and protective phases that should rationally be thought of during engagement in any process. That reality is no different when involving one’s self in the administrative and bureaucratic process of filing a Federal Disability Retirement application by a Federal employee or a U.S. Postal Worker.

Under FERS (an acronym standing for “Federal Employees Retirement System”) as well as under the older system now essentially replaced, outmoded and nonexistent (CSRS, or the “Civil Service Retirement System”), there is a provision which allows for an “early retirement”, generally known as the benefit of Federal Disability Retirement, or sometimes referred to as a “Medical Retirement”.

This author has written of the legal provisions and ramifications in multiple other contexts, and need not be repeated herein. Generally, however, the basic qualifications needed under a FERS Federal Disability Retirement application, comprise the following:

  • Eligibility is set at a minimum of Federal Service requiring 18 months under FERS, and 5 years under CSRS
  • During the tenure of Federal or Postal employment, it must be shown that a person is unable to perform one or more of the essential elements of one’s positional duties because of a medical condition
  • Proof of the nexus between the job description and one’s medical condition must be met by a preponderance of the evidence
  • The medical condition must last a minimum of 12 months
  • The Federal agency or the Postal Service must verify that the medical condition cannot be accommodated (a short caveat – many “informal” adjustments to a workplace or elements of a position, while laudable to the extent that it allows for the Federal employee or U.S. Postal worker to continue working at his or her position, actually never rise to the level of a legally viable accommodation in the narrow sense of that technical term of art, and thus does not prevent one from still being eligible and entitled to Federal Disability Retirement benefits despite such workplace allowances by the Federal Agency or the U.S. Postal Service)
  • And finally, the Statute of Limitations for filing a Federal Disability Retirement application is one year from the date a Federal employee or U.S. Postal worker has been separated from Federal Service.

These comprise the “basic components” of a Federal Disability Retirement application, and should be taken into account as a “practical matter”.

Further, the Federal employee or U.S. Postal worker should be cognizant of the following – and, here, this particular aspect of the administrative process is easily overlooked – that this bureaucratic procedure involves a long and arduous wait while at the U.S. Office of Personnel Management, and additionally, will often involve multiple stages of appeals and bureaucratic phases. As a “practical” matter, both can – and do – have a direct impact upon making those initial decisions in preparing, formulating and filing a Federal Disability Retirement application.

As to the former, finances, preparation in laying the groundwork for the “long haul”, and mentally conditioning to endure the patience required for an arduous bureaucratic process, intersect and intricately comingle with the inverse – lack of preparation for a denial; expectations of an Initial Approval that become dashed and devastate the capacity needed to “fight on”; failure to properly prepare and expect it, which can have adverse consequences beyond mere diminution of one’s positive attitude.

As a “practical” matter, pragmatic steps should be taken upon a receipt of an Initial Denial from the U.S. Office of Personnel Management.

Some assumptions to make, as a “practical” matter:

  • An Initial Denial from OPM will likely be received in an envelope that requires a signature – what is often known as “Certified, Return Receipt”. If that is the case, ask the Postal Facility to either make a copy of the Signature and Date (that green card that must be detached from the envelope), or, if they will not do that, take that green card and sign, make a copy at Staples or some other similar venue, and bring it back.
  • Keep the envelope. The envelope should have a “date stamp”, and it may later prove to be an important piece of evidence.
  • OPM’s administrative procedure has consistently been taking longer and longer at every phase, stage and steps of the process. This is not a criticism of OPM; there is no evidence of any intentional malfeasance on the part of the U.S. Office of Personnel Management; rather, it is simply a reality that one must accept in this age of bureaucratic slow-down, where agencies must work more with less manpower. As such, the date of the Denial Letter will likely be days, and often weeks, before the date of receipt. Do not let fear or trepidation dominate. Do not become suddenly superstitious and set the unopened envelope on an altar of delay. Time is of the essence in all of these matters, and no more so in entering the administrative universe of Federal Disability Retirement Law.
  • You have, as a “practical” matter, 30 days from the date of the Denial Letter from OPM, to file a “Request for Reconsideration” of the denial. Yes, you can likely argue the issue of late receipt, delayed signature, unreasonable shortness of time resulting from OPM’s lack of diligence, etc. – but do you really want to become stuck and embroiled in those issues? Keep the focus upon requesting Reconsideration in a timely manner, even if you only have a week, a couple of days, or even yesterday to do so.
  • Forget about the minutiae of tacking on an additional 3 days for the traditional postal delay in delivery.
  • Forget about trying first to get an “extension” to file; your experience with OPM should already have informed you that you will likely never get a response, and even if you did, it may be just someone telling you something in error just to get you off of the phone. In the end, such futile attempts only further waste and lose valuable time.
  • Forget about reading the decision; first things first – as a practical matter, you need to meet he 30-day deadline by filing the Request for Reconsideration. If the date of receipt has placed you past the 30-day deadline, then you are armed with a copy of that “Return Receipt” card, and you should immediately go to a facility which has a fax machine, and fax the Request for Reconsideration to OPM (the number is normally supplied at the end of the decision), along with a copy of the envelope showing the date OPM sent out the Denial Letter, a copy of the Return Receipt, and a short statement that you just received the Denial Letter.
  • Keep a copy of the Fax Confirmation sheet, establishing the day/date you faxed the Request for Reconsideration over to OPM.

As a practical matter, these steps are important because – while arguments can be made and “the law” allows for certain exceptions when an individual has responded beyond the 30-day period – you really want to spend your time on the substantive arguments to try and persuade OPM that you are eligible and entitled to Federal Disability Retirement benefits, as opposed to becoming embroiled in the procedural ineptitude of late receipt, delayed receipt, etc. of an OPM Denial.

Look, for example, at the case of Kent v. OPM, Docket No. AT-844E-15-0640-I-1 (December 31, 2015), where the issue was timeliness and the establishment of whether the Appellant fell into any of the “exceptions” for untimely filing.

While the MSPB acknowledged that OPM has the “discretion to extend the time limit in limited circumstances prescribed by regulation – specifically, when an individual shows that she was not notified of the time limit and was not otherwise aware of it, or that circumstances beyond her control prevented her from making a timely request for reconsideration” – such issues do not go to the “substance and heart” of the case itself, and instead entrenches a Federal Disability Retirement applicant in issues of purgatory-like paralysis.

Additionally, the Merit Systems Protection Board would apply further analysis and protective measures where OPM dismisses a reconsideration request based on timeliness grounds, but only “if it finds that the dismissal was unreasonable or an abuse of discretion.” Cerezo v. Office of Personnel Management, 94 M.S.P.R. 81 (2003).

Again, however, as a practical matter, the best thing to do is to take some methodological steps in self-preservation modality, and follow the procedures outlined above just as a “practical matter”. Of course, as a further practical matter, it might behoove the denied Federal Disability Retirement applicant to seek the guidance, advice and legal acumen of a lawyer who specializes in Federal Disability Retirement Law. For, as a “practical matter”, what you did at the Initial Stage of the Federal Disability Retirement process didn’t get you very far, and since most mistakes are correctible, the next step in the process – beyond the practical matter of requesting reconsideration in a timely manner – is to win on the substantive basis of the application, which is – as a practical matter—what filing for Federal Disability Retirement benefits is all about.

© 2019 Robert McGill. All rights reserved. This article may not be reproduced without express written consent from Robert McGill.

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About the Author

Attorney Robert R. McGill specializes in federal disability retirement cases helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Attorney blog. 

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