What is the Reconsideration Process of Federal Disability Retirement?
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What is the Reconsideration Process of Federal Disability Retirement and What Are My Options?

Jul 10, 2023 | Articles, Disability Benefits Law, Federal Disability Retirement

By Molly Friedman. Esq.

Receiving a decision from the Office of Personnel Management (OPM) denying your application for FERS Disability Retirement Benefits can be a huge disappointment. However, the initial denial decision is not the final word on your application. You have the option to appeal the denial decision through the reconsideration process.

The first step of the Request for Reconsideration process is the most crucial one.

You must notify OPM of your intent to request reconsideration within 30 days from the date of the denial decision. Included with the initial denial decision is a form titled “Request for Reconsideration of Disability Retirement.” OPM must receive the completed form within 30 days of the denial decision. OPM only accepts late requests in extraordinary circumstances, and requires documentation to show why you were unable to file on time.

The “Request for Reconsideration of Disability Retirement” form should have your CSA Number and date of the denial decision. Please check to make sure the CSA Number listed matches the letter you received. The form includes the option to request that OPM make a new decision on the file as it exists, or for you to take the opportunity to file new evidence. There is almost always additional documentation that has been generated during the several months that the FDR decision was pending. If you are providing additional evidence, and already have it, you can submit with the Request for Reconsideration form. More likely than not, you will need beyond the 30-day time period allowed to file the Request for Reconsideration Form. OPM provides the option to request an additional 30 days to provide updated information.

Once you submit the Request for Reconsideration form, you should receive a letter from OPM acknowledging receipt of your request, and providing a deadline to submit further documentation if you chose to request additional time. Be sure to make note of any new deadlines.

The next portion of the Reconsideration Process is to gather and obtain documentation that can help you prove to OPM why the initial decision was incorrect, and that you are eligible for FERS Disability Retirement Benefit.

You have the right to request a copy of your claim file, which will include the documentation that OPM used in making the initial decision. This is helpful for the reconsideration process, because you can see additional documentation provided by your Agency that you may have not received. You should also carefully review the claim file to see if there is any documentation that you submitted to OPM that is not included. If it is not in the claim file, it is likely that it was not available for the Medical Specialist who made the initial decision to consider.

If you have since been removed from your position or received a decision from the Social Security Administration regarding your application for Social Security Disability (SSD) benefits since you submitted FDR application, it is essential to provide that information to OPM during the reconsideration process.

If you have been approved for Social Security Disability (SSD) benefits since submitting your initial application, you should provide OPM with a copy of the Notice of Award. Even if your application for SSD is denied, the Social Security Administration could still make a finding that you are unable to perform your past relevant work. This is similar to the definition of disability for FDR benefits, which requires only that you are unable to perform the essential duties of your own position. Another important piece of documentation to provide to OPM is documentation of a medical removal. If you have been removed for medical inability to perform the duties of your position, be sure to provide OPM with a copy of the Notice of Proposed Removal and Final Removal.

Your matter will be assigned to a new medical specialist at OPM to review your file and make an updated decision. As during the initial application process, OPM may reach out to you to request additional or outstanding documentation. Be sure to timely respond to all request from OPM to the best of your ability.

As with the initial application, OPM will send you a letter via mail notifying you of the decision regarding your request for reconsideration.

If, after reviewing your file, OPM decides the initial decision was correct, it will deny your request for reconsideration. Fortunately, your options do not end with the denial of your request for reconsideration. You will then have the opportunity to appeal to the Merit Systems Protection Board (MSPB), which provides two additional opportunities for your claim to be reviewed.

After your Request for Reconsideration is denied, you have 30 days to appeal to the MSPB to request a hearing before an Administrative Law Judge. Unlike with the Request for Reconsideration, the documentation necessary to appeal will not be provided with the denial decision. If you have not already retained counsel, we highly recommend that you hire an attorney prior to appealing to MSPB.

At the MSPB, your matter will be assigned an administrative law judge (ALJ). You will have the opportunity to review any evidence that OPM has, and will need to respond to any requests for documentation from OPM. Ultimately, the ALJ will make a decision whether OPM made an error in denying your FDR application. If the ALJ finds no error on the part of OPM, you then have the opportunity to appeal the decision to appeal the decision to the presidentially appointed MSPB Board. Currently, the MSPB Board is experiencing a backlog of cases, and it could take a significant amount of time before you receive a decision. If the MSPB find that OPM did not err in denying your FDR application, that is still not the end of the road. If your FDR application denial is upheld by the MSPB Board, you may be able to appeal to the United States Court of Appeals for the Federal Circuit.

Currently employed or recently separated individuals also have the option at any point to withdraw their current application and submit a new application.

You cannot have more than one application pending with OPM at a time. You can only do this if you are currently still employed by your agency or within the first year of separation.  One of the biggest drawbacks to refiling is the time delay, as you will be restarting the entire process. You should only consider this option if your first application is fundamentally flawed due and you will be able to produce significant evidence that will avoid replicating the same result. If you are considering this option, we strongly recommend that you speak with an attorney prior to taking any action.

While receiving a denial decision is disappointing, the reconsideration process allows Federal Employees multiple opportunities to appeal. The most important thing is to always meet the appeal deadlines. We recommend working with an attorney from the start of the FDR application process to help ensure your initial application is the strongest it could be. The good news is that it is not too late if you have received a denial decision to contact an attorney! At Andalman & Flynn, we have decades of experience with the FDR application and appeals process, and will be glad to conduct a free consultation to discuss your options.

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.