After working hard to build a strong Federal Disability Retirement claim, it can be disheartening when you don’t receive the approval you were hoping for. But there is still hope because a denial does not mean the end of your Federal Disability Retirement case, you still have appeal rights! Currently, we are seeing a higher volume of denials at the initial stage which is why it is very important to know what your appeal options are. With the MSPB council back in session and working through the appeals backlog, right now is an ideal time to discuss what it means to receive a denial and go over key steps you need to take in order to build a strong appeal.
Why was your Federal Disability Retirement denied?
Before we get into building an appeal, let’s go over why your claim could have been denied and what your options are.
When you submit an initial application for Federal Disability Retirement, it is sent to a medical specialist at the Office of Personnel Management (OPM) who then reviews the application as well as any supporting documents such as medical records and narratives from your supervisors and doctors. After they have reviewed this information, they will choose to either approve or deny your application.
It is important to note that there are a variety of reasons an initial application may be denied and if it is, that does not mean that your Federal Disability Retirement claim is over. Sometimes a claim can be denied due to something as simple as the medical specialist not having enough information on your condition and denying it solely based on the facts within the submitted documents. They must make decisions based on the facts because medical specialists are not doctors and they need further direction on how certain medical conditions can impact someone’s ability to perform their job.
We have also seen denials based on contradicting wording such as the word “chronic” being used rather than “expected to last longer than twelve months.” Now it is crucial to know that every so often we will see an increase in denials, often not for any fault of the person applying but rather the OPM direct their medical specialists to work through a high amount of case decisions. Remember, it is the medical specialists’ job to make a decision they feel is right based on the information provided.
Understanding Your Appeal Rights
So, if you have received a Federal Disability Retirement denial letter from the OPM, there is no need to panic as you have appeal options. You have thirty days from the date of the denial letter to submit an appeal for reconsideration to the OPM. This is the date on the denial letter, not the date that you received it. It is especially important that you do not miss this deadline, as there is no way to request an extension and in turn will forfeit your ability to request an appeal. When submitting an appeal for reconsideration, you have three options. *
- Review Evidence Included
You can request to have the OPM make a decision based on the evidence included, along with the request form and documentation already in your file.
- Submit New Evidence
You can elect to submit additional evidence to further support your claim along with your reconsideration request form.
- Request a 30-day Extension
You can request a 30-day extension to submit new evidence to solidify your claim.
*It is important to note that regardless of which option you choose, a new medical specialist will be assigned to your case for a reconsideration review.
During the reconsideration stage, you are not required to have an attorney, though it is critical to develop strong legal arguments as well as meet many critical deadlines. 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.
If your appeal is approved, usually within a few months you will begin to receive interim payments from the OPM. If your reconsideration is denied, there is no cause for worry, as you have the option to submit a 2nd appeal to the Merit Systems Protection Board (MSPB).
Appealing to the Merit Systems Protection Board
If your OPM reconsideration is denied, you will have the opportunity to appeal this decision within thirty days from your receipt of the denial letter. Even though it is not required, when it comes to building and submitting an appeal to the MSPB, we highly recommend having an attorney that can handle your case since it is a telephonic court hearing that often entails a lot of legal terminology that can be overwhelming. This is a crucial step in the appeals process, which is why our Associate Attorney, Leah Bachmeyer-Kille, has spent more than 10 years refining our reconsideration process and learning exactly what the MSPB is looking for in an appeal.
The MSPB Hearing
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.
At this point it is very important that you have ALL your documentation ready to be presented in front of the judge as well as have a list of witnesses that can support your claim. The longer you wait to submit evidence during the MSPB process, the harder it will be for it to be accepted into your case. During the telephonic hearing, it will be the OPM’s appointed representative’s job to potentially re-enforce the OPM’s decision in front of the court. This will also be the time for you to present your evidence and make your case against the OPM’s reconsideration decision.
After the hearing, the judge will issue a decision which can take months.
If you are approved at the MSPB stage, the decision will take effect after 35 days and then the OPM will have 20 additional days to send out a Federal Disability Retirement approval letter.
Once your case is finalized, you will be awarded any eligible back pay that you qualify to receive.
What if you are denied again?
So, if you have gone through both appeal stages and still receive a denial from the MSPB, you have two options.
- 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. *
- You can request to have your case taken to the U.S. Court of Appeals for the Federal Circuit to decide on your case.
*With the MSPB finally back in session after a five-year break due to lack of members, they will soon be able to clear the backlog of appeals and hear new appeals.
It is important to note that it is highly recommended to obtain legal counsel when submitting an appeal to the MSPB panel or the U.S. Court of Appeals. This court has extremely strict rules on document submission and specific regulations when it comes to hearing a case. However, if you choose not to appeal your MSPB denial, then you can apply again at a later date so long as you had not been separated at the time of your initial application and prior appeal process and if you can provide supporting documentation that your medical condition has worsened since your initial application.
A denial is far from the end of the fight for your Federal Disability Retirement. We represent federal employees at all stages of the Federal Disability Retirement application process but hiring us at the initial stage will set you up for success. Schedule a free consultation now!