Federal Disability Retirement: The Case Does Not End Until a Final Order is Issued and the Time for Appeals Has Expired

— The myth of the groundhog has long been lost, of how it was once the most beautiful creature in the kingdom, and all the animals knelt in awe and envy, until one day the groundhog, whose fidelity to a single mate for life was known far and wide, was subjected to the cruelest of crimes: his wife was kidnapped, and the ransom note read that she had been buried alive, and it was up to the husband to dig throughout the ends of the earth before the last suffocating breath of the fair lady would expire; and so the groundhog determined to dig, and dig, and dig, and to this day it continues in its perseverance and persistence, revealing the eternal love, fidelity, and search throughout the kingdom, for the love forever lost, but never forgotten.

— From Stories Long Forgotten

In Law, not only is persistence necessary (as well as being a virtue), it is necessary in order to prevail. It is always disheartening to go up against a governmental Agency; it is even harder when a person suffers from a medical condition which impacts one’s physical abilities, or perhaps one’s emotional or cognitive capabilities — or both. The process of obtaining Federal Disability Retirement under FERS or CSRS from the Office of Personnel Management is a long road — at the Initial Application Stage, it will often take from 8 – 10 months. A thumbnail sketch of why it takes this long is as follows: first, obtaining the proper medical narratives and records; formulating the Applicant’s Statement of Disability; preparing a coordinating legal memorandum; filing through the Agency and obtaining the Supervisor’s Statement and other necessary forms completed; routing it through other channels until arrival at Boyers, PA; assignment of a CSA number – and finally to the Office of Personnel Management in Washington, D.C. Then, if it is denied at the Initial Stage, the right to Request Reconsideration; then, if it is denied at the Reconsideration Stage, the right to an appeal to the Merit Systems Protection Board (MSPB); then, even if the Applicant prevails at the MSPB Stage of the process, there is always the possibility that the Office of Personnel Management may file a Petition for Review with the full Board of the Merit Systems Protection Board.

It is important when undertaking the process of filing for Federal Disability Retirement, to be mentally prepared to go the distance. Part of the “distance” that a person must be prepared to undergo, is to be denied. Mentally, that is sometimes difficult to be prepared for. This is particularly true of a OPM Disability Retirement Applicant, precisely because of the impending and onerous financial considerations – for a disability annuity can often mean the difference between financial security and financial ruination. And, indeed, an attorney who represents an Applicant for Federal Disability Retirement can cushion the impact of a denial by mentally and emotionally preparing the applicant, by objectively assessing the chances of approval, and providing a wider perspective as to the legal and medical requirements necessary to get an approval at the next stage.

What is disheartening to see, is when an individual almost went the full distance – but fell just short; as a result, a lifetime annuity was lost forever.

This is precisely what appeared to happen in the recent Merit Systems Protection Board Case of Sylvia M. Reilly v. Office of Personnel Management, Docket No. DE-831E-07-0359-I-1, decided on March 14, 2008. In Reilly v. OPM, the Office of Personnel Management denied the Federal Disability Retirement application of Ms. Reilly; it then denied her application again at the Reconsideration Stage – but she won the case before the Administrative Judge at the Merit Systems Protection Board. The problem, however, is that after winning at the MSPB level, the Office of Personnel Management then filed a Petition for Review (PFR) — and the “appellant did not respond to the PFR” (at page 2 of the decision, emphasis added). Now, there are many issues which are discussed in the decision issued by the Board, including medical evidence showing disability after the Appellant’s date of resignation and medical notations that minimized the severity of her medical condition. However, it is clear why the Board’s decision is so one-sided – since nobody responded to the Petition for Review, and since nobody countered and refuted the statements of the representative from the Office of Personnel Management, there was nothing else that the Board could have done, except to accept the one-sided statements of OPM. Think about this logically: if you have 2 people debating an issue, and only one of them shows up, who wins the debate? The Full Board had no choice – and, indeed, they did what one would expect: the victory won at the Hearing level was reversed, and the Federal Disability Retirement benefits that had been granted – after such a long and hard-fought battle – was lost.

Persistence and Perseverance means one must stay in the battle throughout the entire process. To give up just when victory is in hand, is the same as not having tried at all. In this respect, it is important to have a FERS Disability Attorney represent an individual in obtaining Federal Disability Retirement benefits from the Office of Personnel Management. In pursuing one’s entitlement to OPM Disability Retirement benefits, one must always take the long-term perspective, and pursue that right with aggressiveness and persistence. Like the groundhog who eternally pursues, and applicant must be ready to “go the distance”. It is an investment for one’s future, and it is important to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

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Robert R. McGill, Esquire


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