5 Primary Reasons for a FERS Disability Retirement Denial

As a general rule, denials will normally be sent by the U.S. Office of Personnel Management by Certified Mail with a signature requirement. If the correspondence is otherwise received by regular mail with no such signature requirement, it is likely either a request for additional information or an approval.

Preliminarily, it is crucial to point out that a Federal employee or U.S. Postal worker who receives a denial in response to an application for Federal Disability Retirement benefits must file a Request for Reconsideration within 30 days of the date of the Denial Letter — NOT 30 days from the receipt of the denial. And, No — you do not get to “tack on” an additional 3 days to account for the delay of mail. It is inadvisable to play with the “number of days” that a person has to respond to an OPM Denial. It is best to always be on the safe side. Furthermore, always send in the ” Request for Reconsideration ” via a trackable method — if by fax, to obtain a fax confirmation sheet showing the number to which the request was faxed, or if by mail, any one of the venues which allows for tracking of the submission. Better yet, contact and consult with an attorney before anything is done — unless, of course, you have waited until the 30th day to file your Request for Reconsideration, in which case you should immediately file it by fax to OPM (the number to fax it to should be on the Denial Letter) — and then call for a consultation.

As for the “reasons for the denial” which OPM advances — there are many, and some are “mixed and jumbled” within the “discussion” section of the denial letter, but generally may fall into the following categories:

Reason #1: Lack of Deficiency: Do you have a deficiency in performance, conduct or attendance? The primary source for this information will normally come from the Supervisor’s Statement, which will often be completed without the input of the Federal Disability Retirement applicant. Supervisors are busy, just like the rest of us; to complete SF 3112B is merely another headache that is on a bucket-list of tasks, and it is often a good idea to “remind” him or her prior to completion of any performance issues that have previously come up, or of excessive use of SL or LWOP, and how it has impacted the mission of the agency or the Postal Facility. Performance ratings have become a bureaucratic process where avoidance of a grievance results in everyone receiving a successful rating. Yet, such ratings are used by OPM to argue that a Federal Disability Retirement applicant is fully capable of performing all of the essential elements of the job. How to counter that? Attendance issues; severity of the medical condition; deterioration over the past year — after the last performance evaluation was approved; these, and many other issues may be the key for rebuttal of OPM’s myopic perspective.

Reason #2: Conduct Issues: This area of concern is a sub-part of the deficiency issue (“Is there a deficiency in the applicant’s performance, conduct or attendance?”), but may present a unique and distinctive concern. Was an adverse action proposed? Did the Federal Disability Retirement applicant resign in lieu of being removed for a conduct issue? OPM will often use conduct issues as a hammer to bludgeon a Federal Disability Retirement applicant to look like a nefarious individual intent upon retrospectively justifying a medical condition to cover up for the conduct issue.  The general approach of OPM is: “You only filed for Federal Disability Retirement as an afterthought. You were able to do your job until you were charged with misconduct.” The key to rebutting such a denial basis is to go back as far as possible to show the severity and treatment modalities of the medical condition and establish that the impact of one’s medical condition manifested itself long before any initiation of an investigation or adverse action.

Reason #3: Lasting more than 12 months: This should be a “no-brainer”, but in almost every OPM denial of a Federal Disability Retirement application,  this “throw-away” basis is inserted. For some reason, no matter what the doctor states in a report or a medical note, including — “permanent condition” or “will not resolve for the foreseeable future” or even “will last for the next 10 years” — OPM still wants to see the words “will last for at least 12 months”. Yes, the law requires it, but somehow one would have thought that intelligence would dictate an allowance for an implicit understanding of the English language.

Reason #4: Insufficient medical documentation: This basis is most often the dominant theme in an OPM denial of a Federal Disability Retirement application. What is “sufficient”, of course, is the million-dollar question. “Sufficiency” is a funny animal; it is often like a ghost — you know there exists one if you see it, but trying to persuade everyone else who has never seen one is an impossibility. It is the balance between the medical condition and the extent of proof one must show. Thus, for “early-onset dementia”, for example, a brain MRI revealing cortical changes along with a 1-page declaration of the diagnosis may be enough. For Major Depression and Anxiety, there may have to be a year’s worth of therapeutic treatment notes, and even that may be insufficient. Each case must be driven by the unique circumstances of taking all issues into consideration: The medical condition delineated; the type of job one has; the capacity for accommodations; how supportive are the treatment notes, etc.

Reason #5: Accommodation and Reassignment Issues: This is almost always a problem — from Federal agencies wrongfully asserting that they have “accommodated” an individual’s medical conditions (whether by misunderstanding what the term “accommodation” means, or because Agency Human Resources’ personnel want to appear as if they have done their jobs, etc.) or that a proper “reassignment” was offered and rejected, to instances where failed accommodation attempts lead to declarative conclusions that the individual “has been accommodated” — this area of the law is often where the heart of a denial rests. Are the issues arguable and contestable? Are there ways in which to refute and rebut what an Agency or the Postal Service asserts as “facts” and “truths”? The fertile ground of accommodations and reassignment issues, in fact, is often a medical one — where the tension is between what one’s treating doctor considers as an acceptable accommodation and what the Human Resource Office sees as sufficiently meeting the legal criteria for satisfying SF 3112D.

In the end, the 5 reasons delineated above are not exhaustive. There may be multiple other bases upon which an OPM Denial of a Federal Disability Retirement application is decided, and some of them may leave the applicant wondering whether or not there is even a scintilla of a chance to overcome the denial. Denials are meant to discourage. Denials are meant to make the applicant believe that there was never any basis for even trying to obtain FERS Disability Retirement benefits.  Always understand, however, that no matter how assertive or knowledgeable the personnel at the U.S. Office of Personnel Management seem and appear to be, there are laws which govern the eligibility requirements of every Federal Disability Retirement application, and in order to successfully rebut an OPM Denial, it is best to consult with a FERS Employee attorney who specializes in OPM Disability Retirement Law.

I am a Federal Disability Retirement Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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