FERS Disability Retirement Denied? Take These Steps
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FERS Disability Retirement Denied? Take These Steps

Aug 17, 2022 | Articles, Federal Disability Retirement

By Peter Casciano, Esq.

It can be frustrating when the Office of Personnel Management (OPM) denies your application for disability retirement benefits. Fortunately, a denial is not the end of the road for your claim.

Here are several steps that you should take in the event you are denied:

1. Identify why you were denied.

There are many reasons OPM will deny an application for federal disability retirement benefits. One reason could be that there wasn’t enough evidence explaining how your medical conditions prevent you from performing the material duties of your federal job for at least a full year. Another reason could be because your employing federal agency certified that your ability to work has been fully successful and that you did not demonstrate a performance deficiency while working on the job. Maybe your employing federal agency also reported that you were able to be reasonably accommodated or that you were able to be reassigned to another federal position. Or maybe your employing federal agency identified conduct issues that swayed OPM’s decision to deny benefits. Whatever the case, you must identify the reasons why OPM denied your case so that you know what issues need to be addressed on appeal.

2. Timely file your appeal.

OPM provides disability retirement applicants 30 days from the date of the denial letter to appeal their decision. Enclosed with the denial letter will be a Request for Reconsideration form that you will need to complete and return to OPM. You may also request an extension of time from OPM to submit additional evidence to support your claim and to rebut the findings in OPM’s denial decision. Regardless of whether you request an extension of time to submit evidence, it is imperative that you timely meet the 30-day deadline.

3. Request your OPM claim file.

On Reconsideration, you have the right to request a complete copy of your OPM claim file. The claim file contains all of the evidence that OPM considered and relied on when making its decision on your initial application. It is important to know what documents OPM referenced in its decision and whether OPM properly characterized the evidence that was in your file. Further, reviewing the claim file is imperative to know what aspects of your case need to be strengthened to prevail on appeal.

4. File for Social Security Disability Benefits

Assuming you are no longer working, you should file an application for Social Security Disability (SSD) benefits while your federal disability retirement application is pending. Not only will you have to eventually send proof of filing of SSD benefits to OPM to be placed into pay status, but prevailing on an SSD claim often causes OPM to expedite the processing of your federal disability retirement claim for approval. Even if you are denied on SSD, sometimes the Social Security Administration will make a finding that you are precluded from performing your past relevant work, which can lead to a favorable result on the federal disability retirement claim.

5. Submit additional evidence in support of your claim.

If you do not submit additional evidence in support of your claim, your case will be denied on Reconsideration. Simply submitting the appeal does not guarantee that OPM will give you a full and fair review of the evidence in your file. It is your responsibility to submit updated medical records from your treating physicians and to gather the evidence necessary to address the issues that caused the initial denial. We encourage you to talk to a federal disability retirement lawyer to better identify the issues that need to be addressed and remedied on appeal.

6. Appealing to the Merit Systems Protection Board.

In the event your Request for Reconsideration is denied by OPM, you will have thirty (30) days to appeal to the Merit Systems Protection Board (MSPB) to have your case heard before an MSPB administrative judge. If you have not hired a lawyer by this point, it is highly recommended that you do so. The MSPB review process features a contested telephone hearing before the administrative judge and a representative from OPM. You will have the opportunity to put on witness testimony and to present additional evidence in support of your claim. At the same time, OPM’s representative will have the opportunity to cross-examine you and demonstrate that OPM’s decision was well-reasoned and supported by substantial evidence.

7. What if you are denied by the MSPB?

If you are denied again, you will have the opportunity to file a Petition for Review to have your case reviewed by the full MSPB panel in Washington, D.C. Alternatively, you have the option to file an appeal to the United States Court of Appeals for the Federal Circuit. In either situation, it is important to consult with a lawyer to determine whether you have a realistic chance of prevailing on your disability retirement application. In some instances, it may be better to file a new application for disability retirement, assuming you have not already been separated from your federal agency and that you can show that your medical condition has worsened since filing your first application.

In sum, if you receive a denial letter from OPM, it does not mean you have reached the end of the road. You have appeal rights, and you should maximize your time and resources to ensure that OPM makes the right decision on appeal, especially for such a valuable benefit. If you have been denied on your federal disability retirement application, please contact me today for a free consultation.

About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone and are there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.