— The General was informed that the trek through the desert would take five days. The soldiers were well-rested; their swords were sharpened; the spears were repaired; the horses were re-shoed; enough food was gathered. The Army marched forth through the scorching desert sands, under the heat of an unforgiving sun. Many years later, the skeletal remains of a once mighty army were discovered. The army had perished, because they had failed to provide for a basic necessity — water.
— From “Stories Long Forgotten”
In the opening sentence of Davis v. the Office of Personnel Management, PH-844E-06-0242-I-1, the Merit Systems Protection Board reminds us all that the “burden of proving entitlement to a retirement benefit is on the applicant…” In past articles, I have discussed a variety of issues, from important legal principles based upon Bruner v. OPM, to showing how to build the “proper bridge” in preparing a Federal Disability Retirement application. In preparing a Federal Disability Retirement application, however, remember to always satisfy the “basics”, because if you fail at the basic level, you will never get to the “substantive” level to argue your case.
Davis is a case about a Federal Disability Retirement applicant whose application was denied at the first Stage (the “initial application stage”) because she “did not present any medical evidence to support her claim.” Strike One — how can you file a medical disability retirement application without any medical evidence?
Next, Ms. Davis failed to file her “Request for Reconsideration” within the 30-day period. She filed it 5 days late. Strike Two — you won’t even be able to argue the substance of your OPM Disability Retirement case if you don’t take care of the “basics” — like filing your Request for Reconsideration in a timely manner. In OPM’s denial letter, it clearly stated: “Your Request for Reconsideration must be received by OPM within 30 calendar days from the date of your initial denial letter.” Ms. Davis had no excuse.
Now, every now and then — but very, very rarely — an exception will come along. Such was the case in Goodman v. Office of Personnel Management, 100 M.S.P.R. 43 (2005), which was cited as a distinguishing case by the Board. In Goodman, multiple factors allowed the appellant to be excused for her tardiness — including, being misled by OPM verbally over the telephone; receiving the denial letter some three weeks after being postmarked (thereby leaving her with only a week to respond); and being a quadriplegic who had to rely upon others to assist her in responding. Be aware: only under the most exceptional of circumstances will being late in responding be excused. You must take care of the basics, before going on to the substance of a case.
Ms. Davis filed an appeal to the Full Board. Her appeal was, as you might guess, denied. The Board stated that in cases such as this, where Ms. Davis “fails to show that she was not notified of the deadline and was not otherwise aware of it, or that she was prevented by circumstances beyond her control from making the request within the time limit, we will not reach the issue of whether OPM was unreasonable or abused its discretion in denying her untimely request for reconsideration.” (italics added).
Strike three. Ms. Davis is out. As I have reiterated throughout this article, unless you take care of the basics, you cannot even get to the substance of your Federal Disability Retirement claim. Like the parable of the mighty army which could defeat its enemy, that army could not survive to fight the battle unless it took care of a basic need — water for its troops to cross the scorching desert to meet its enemy. It failed to take care of the basics.
In life, we are all busy doing multiple things, and when a Federal or Postal Employee comes to a point in his or her life where filing for OPM Disability Retirement becomes a necessity, it is often a good idea to hire an attorney — not only to ensure that the “basics” are taken care of, bur further, to make sure that you get the opportunity to argue the substance of your particular case.
As an aside, let me point out some other “basics”:
1. Remember that you have one (1) year from the date you are separated from service to file for Federal Disability Retirement. The one (1) year date does not begin when you stop working; it doesn’t begin when you get placed on LWOP; it doesn’t begin from the time you get disabled. It begins from the date you are separated from Federal Service.
2. For my clients (and those who are not my clients) whom I got OPM Disability Retirement for — remember that you are allowed to get another job and make up to 80% of what your position currently pays, in addition to the disability annuity you are receiving. It is earned income that counts — not rental income, not investment income, and certainly not your disability income.
3. A teaser — I will probably address this issue in my next article — the Office of Personnel Management seems to, more recently, be scrutinizing those who are already receiving medical disability retirement benefits. For those of my clients (and those who are not my clients) who receive Federal Employee Disability Retirement, remember to take OPM’s Medical Questionnaire seriously. I have had more cases than usual where disability annuitants have had their disability income discontinued.
My name is Robert R. McGill, Esquire. I am a duly licensed Federal Disability Attorney who specializes in representing Federal and Postal Employees, to obtain Federal OPM Disability Retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at email@example.com, or visit my blog at FederalDisabilityAttorney.com.