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ANSWER: Until recently, the reconsideration stage was often a wasted effort. In most instances as a consequence of bureaucratic intransigence (or plain laziness), OPM regularly failed to provide the reasons why the application was rejected. This pretty much made the reconsideration stage worthless, since you had to guess at what might change the minds of those at OPM. After constantly pummeling OPM for this failure, I have found that the agency has changed its procedure, and is now regularly providing reasons for their initial denial. This makes an enormous difference and allows you to make a more meaningful response on reconsideration.

If OPM rejects your application again on reconsideration, it issues a final decision, which gives you a right to appeal to the Merit Systems Protection Board. There, an administrative judge will afford you a hearing and decide your entitlement to disability retirement.

ANSWER: That depends on the nature of the medical evaluation or treatment you refuse. You cannot be denied disability retirement for refusing to undergo diagnostic procedures or treatment strategies that are relatively invasive, relatively painful, or may result in further illness. However, in one case an employee's chronic back pain was exacerbated by being overweight. She was denied disability retirement when she refused to accept medical advice to exercise and lose weight.

ANSWER: That part of the application that you must complete yourself (Applicant's Statement, Form 3112 A) requires several hours' work. However, getting the "Physician's Statement" (Form 3112 C) into just the right shape often takes weeks and sometimes months. Thereafter, the agency's bureaucracy can take an additional six to eight weeks before the application can be transmitted to OPM.

The timing of OPM's approval appears related largely to happenstance and apparently the whim and fancy of those running the show. For instance, OPM has no procedure whatsoever for expediting applications due to financial need. It claims to expedite the applications of the terminally ill on an ad hoc basis, irrespective of financial need, but refuses to expedite the applications of those threatened by financial ruin.

In my experience, case approval time varies from 10 weeks in a tiny minority of potentially news-sensitive cases (e.g. those concerning AIDS), to an average of five or six months. Some applications, however, languish inexplicably for a year or more, and have required complaints to the Inspector General to get the cases processed.

It may take up to several months, after winning, before you receive any money from OPM. By this time, if you've stopped working and are on LWOP, you will be owed a good deal of annuity back-payments. Usually, OPM makes an initial lump sum distribution of part of the back-payments owed. Thereafter, there may be another lump sum distribution of any other back-payments owed, usually together with the first of the regular monthly annuity payments.

ANSWER: Yes. If you are denied disability retirement because you were accommodated or reassigned, and that accommodation or reassignment does not work out, you can request disability retirement again. Also, if your application for disability retirement is rejected by OPM or on appeal by MSPB, there appears to be no prohibition against reapplying, using both old and new evidence, provided that you are still in government service or have been separated for less than one year.

Harvey Friedman

Elliott Andalman

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