Medical specialists at the OPM often deny a cases when they need more direct documentation or evidence for approval. Image: Tricky_Shark/Shutterstock.com
By: By Leah Bachmeyer-Kille, Esq. for Harris Federal Law FirmBeing denied Federal Disability Retirement can be heartbreaking. As a disabled federal employee who is struggling to work, receiving a denial may feel like the world is working against you. But don’t worry, receiving an initial Federal Disability Retirement denial isn’t the end.
You have appeal rights after an initial denial and many resources available to help ensure a future approval. It is recommended to seek legal assistance when appealing an OPM decision, but it is not required. This article will provide some insight into what to do after receiving a Federal Disability Retirement denial so that you have the best chance at approval in the future.
Understanding Your Denial
The first step to appealing your Federal Disability Retirement denial is to understand the reasons for denial. When you submit your Federal Disability Retirement application to the OPM you are assigned a Medical Specialist who reviews your application and any supporting documentation. This medical specialist will be the one approving or denying your application. You will receive a letter in the mail stating that you have been denied along with the reasoning.
Medical specialists at the OPM are not doctors and can often deny a case based on the fact that they need more direct documentation or evidence to see how a condition could affect a person’s ability to perform their job. Additionally, medical specialists often overlook valid legal arguments since they are focused on the medical evidence.
These medical specialists are not perfect, and you can be denied for many different reasons, some valid and some seemingly unjustified. But regardless of how you feel about your denial, it’s important to understand the reasoning behind it so you can know how to fight it.
How to Appeal Your Case
If you receive a denial on your initial application, you will be able to appeal the OPM’s decision.
You have thirty days from the date of the denial letter to submit an appeal for reconsideration to the OPM. This is the date written on your denial letter, not the date you received the denial letter. This is very important to remember, if you miss this 30-day deadline there is no way to get an extension and permitting an untimely appeal has only 2 narrow exceptions for if you were incapacitated/incapable of sending the appeal in time or had never received the denial letter within the timeframe.
When appealing your Federal Disability Retirement case, you have three options.
1. Request a new decision- this option requests the OPM make a new decision on your case with the evidence already included in your file.
2. Submit additional evidence- this option allows you to submit additional evidence into your application based on the OPM’s reasoning for denial before a new decision is made.
3. Request a 30-day extension- this option provides you with an additional 30-days to gather new evidence to submit to help support your case, but you must request this extension within the first 30-day deadline.
You will be assigned to a new medical specialist no matter which option you choose. This will help ensure that you have an equal opportunity to be approved for this benefit.
Typically, this process can take around 4-6 months but depending on the number of reconsideration claims the OPM has, it can sometimes take longer or shorter. While it can be tempting, it is not recommended to reach out to the OPM repeatedly throughout this process to check the status of your application, this can negatively affect their decision. You need to give the OPM time to do their job. The OPM can make an escalated decision in cases of terminal illness, where the applicant may not have much remaining time.
What if You Are Denied Again?
If your reconsideration appeal is denied, don’t panic, you still have options. Keep in mind it is more important now than ever to have legal assistance. At this stage you will appeal to the Merit Systems Protection Board (MSPB) and have a telephonic or videoconference hearing to support your case.
Once you submit your appeal, the MSPB will set a docket number, appoint a judge and the OPM will assign a representative from their headquarters in Washington D.C. This appointee is not the medical specialist that made the decision on your case but often a paralegal or a legal administrative specialist, sometimes also holding a law degree.
At this point it is important to have ALL your supportive documentation ready to be presented in front of the judge as well as a list of witnesses that can support your claim. This will be the time for you to present your evidence and make your case against the OPM’s denials before a decision-maker that can review the case as a whole with fresh eyes.
The MSPB will consider all pertinent evidence in determining your entitlement to disability retirement: objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence relating to the effect of your condition on your ability to perform the duties of your position. Additionally, nothing in the law mandates that a single provider tie all of this evidence together. See Henderson v. Office of Personnel Management, 112 LRP 5649 , 117 MSPR 313 (MSPB 2012).
If you are denied yet again, you will have two options:
1. You can elect to appeal the decision and request to have your case reviewed by the full MSPB panel in Washington, D.C. in what is called a Petition for Review.
2. You can request to have your case taken to the U.S. Court of Appeals for the Federal Circuit to decide on your case.
Keep in mind that appeals that occur at this stage are usually going to be limited in scope—the decision makers are usually bound to only looking at certain things in the file. It is usually difficult to add additional documentation during these appeals and the scope of your argument will be limited.
Receiving denials and going through appeals processes can be stressful and overwhelming, but the benefits of Federal Disability Retirement vastly outweigh the stress. It is highly recommended to seek legal counsel if your case has been denied.
Generally speaking, if you choose not to appeal your denial, then you can reapply for Federal Disability Retirement at a later date so long as you either remain employed or apply within one year of separation and show some material change in your conditions or circumstances to justify the new application.
A denial is far from the end of the fight for your Federal Disability Retirement.
Leah Bachmeyer-Kille is the Associate Attorney at Harris Federal Law Firm. She obtained her Bachelor of Arts, cum laude in Philosophy from Rhodes College in Memphis, Tennessee and graduated from the University of Kentucky College of Law in 2013. She has been working full time at Harris Federal since 2013 and is passionate about improving the lives of federal employees through Federal Disability Retirement. Harris Federal assists federal workers all over the country on Federal Disability Retirement, to learn more, contact Leah at (877) 226-2723.
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