Federal Employee Medical Retirement: Too Much Information

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, brevity and succinctness should be the guiding rule.  Often, over-explaining and overstating a particular issue, while intending to be helpful and fully descriptive, can result in greater confusion and muddling of the issues.  

This is found not only in the Applicant’s Statement of Disability, but also in an Agency’s responsive completion of forms — both the Supervisor’s Statement as well as the Agency’s efforts for Reassignment and Accommodation.  Previously, much has been written concerning (for example) the Agency’s attempt to explain how the Federal or Postal employee was “accommodated” in various ways.  

Such explanations, while legally untenable precisely because the efforts engaged in did not in fact constitute an accommodation as the term is defined in Federal Disability Retirement laws, nevertheless confuse the issue with the Office of Personnel Management because (A) they often provide an appearance of having accommodated the Federal or Postal employee and (B) the Claims Representative at the Office of Personnel Management himself/herself neither understands the laws governing accommodation, nor applies it properly.  

The same is often true in a long narrative of the Applicant’s Statement of Disability — where causation, harassment, the history of the medical condition, the problems at the agency, the history of how one’s work could not be performed, collateral legal forums filed with, etc. are all extensively discussed.

Remember that an answer to a question should always be guided by the question itself.  Don’t create your own question and answer the question you composed. Rather, re-read the question, and answer only the question asked.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Simplicity of the Process

In becoming deeply involved in the morass of the bureaucratic process of preparing, formulating and filing a Federal Disability Retirement application under FERS and CSRS, it is often easy to become frustrated with the inherent complexity of the process.  

Because of the multi-faceted complexities of the administrative process (e.g., obtaining the proper format and language in a medical narrative report in order to meet the legal criteria for eligibility; creating and nexus between the essential elements of one’s position in the Federal Service with the symptomatologies of the interaction between the medical conditions and the essential elements; understanding and applying the various statutory authorities and legal precedents which have evolved over many years; of preempting — if necessary — statements by the Agency or the Supervisor; and multiple other issues to be addressed concurrently), it can be frustrating for an injured or disabled Federal or Postal employee to attempt to pull all of the intricate strings together into a singular yarn of coherency and succinct presentation of a narrative form.  

Such is the time to remind one’s self of the simplicity of the process — of the 3-part essence of a Federal Disability Retirement application which will ultimately be a paper-presentation to the Office of Personnel Management.  First, the medical narrative must be simple but concise, and must provide a proper bridge between the medical condition and why a Federal or Postal employee is unable to perform one or more of the essential elements of one’s job.  Second, one’s Applicant’s Statement of Disability must be consistent with the medical narrative reports — neither understated nor exaggerated, and guided by truth. And third, it is important to understand and apply the legal precedents, and use the law as what it is intended for — a tool for both a shield and a sword.  In life’s complexities, it is important to maintain a paradigm of simplicity.  Unfortunately, it is often the simplest forms which constitute the height of complexity.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Moving Beyond

Once a decision has been made to begin preparing, formulating and filing for Federal Disability Retirement benefits under FERS & CSRS, then the mechanical aspects of gathering and compiling the evidence to make one’s paper presentation to the Office of Personnel Management must begin.

It can be a daunting process.  However, it is overcoming the initial timidity which is the first step.  The compilation of the proper medical narrative reports with the effective wording and nexus between the medical condition and essential elements of one’s job; the creation of a narrative word picture of one’s Applicant’s Statement of Disability; any legal arguments to be presented and cited; the remainder of the Standard Forms to be completed by the Agency; the insurance forms — one can easily get lost in the morass of such paperwork.  

Then, there is the “waiting period” — that long and anxiety-stricken time of waiting for the Office of Personnel Management to makes its decision at the Initial Stage, and if denied, at the Reconsideration Stage of the process; and, if denied a second time, an appeal to the Merit Systems Protection Board.  

It is during the “waiting period” that one must begin to think about the period “beyond” — that time when one becomes a Federal Disability Retiree, where one finally has the proper time to attend to one’s medical conditions, then to rethink in terms of another job, another career, another phase of life.  It is the time to think about “moving beyond” one’s self-perception and paradigm of self-conception of being a “Federal employee”, and instead to think of the re-created self in new and fresh terms.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Making Explicit the Implicit

Sometimes, it is implicitly clear in the formulation of the Federal Disability Retirement application that the applicant is unable to coherently present one’s case in a Federal Disability Retirement application under FERS or CSRS.  

Whether because of the physical limitations or the cognitive dysfunctions, the brevity of the statement on the Applicant’s Statement of Disability, or the illegible handwriting, etc., may well provide an indication of one’s medical conditions and their impact upon one’s Federal or Postal duties in a particular position.  But to rely upon an implicit revelation, or to expect that a Claims Representative at the Office of Personnel Management may infer the intractable pain which the potential applicant may be experiencing, is to expect that which will likely not happen.  

The paper presentation offered to the Office of Personnel Management must be explicitly stated at every juncture, at every opportunity, at every potentially coordinating point — with succinctness and clarity of delineation, utilizing the language available, inserting the most effective, descriptive adjectives to create a compelling word picture, governed by truth and justified by the medical documentation within the parameters of the law, in order to express that which has previously remained implicit.

To make explicit that which is implicit is the key; to expect the implicit to be recognized by the reviewing individual at the Office of Personnel Management is to expect the impossible.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Avoidance of the Close Encounter

Ultimately, preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management requires a “setting aside” of a direct encounter with one’s acknowledgment and concession that one has an intractable medical condition which is directly impacting one’s ability to perform the essential elements of one’s job.  It is to come face to face with the realization that the hard-fought career goals, the years of schooling and education; the overcoming of the inevitable learning curve during one’s youth and inception of a career — are ending not as a result of actualizing one’s dreams and goals, but because of an intermediate cause:  a medical condition.  

The struggle to continue working despite the chronic pain or deteriorating cognitive capabilities is the natural attempt to prolong that which one worked so diligently to strive towards; but at a certain point, such a struggle to continue working despite the increasing manifestation of the medical symptomatologies becomes an “avoidance” issue — of avoiding having to face the inevitable decision-making process of filing for Federal Disability Retirement benefits under FERS or CSRS.

At some point, however, prolonging the avoidance issue for too long leads to the inevitability of a flashpoint — of an emergency resulting from a crisis, where the Agency itself will propose an adverse action, or the medical condition itself will dictate the terms and conditions which necessitate filing for Federal Disability Retirement benefits under FERS or CSRS.  Avoidance will force the close encounter; too long of an avoidance will make the encounter not just close, but a direct impact requiring emergency actions.  

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Resignation Argument

Sometimes, in preparing to file for Federal Disability Retirement benefits from the Office of Personnel Management under FERS or CSRS, one is either forced to resign or, because of financial or other reasons, it is the best course of action to take.  

In any resignation, one should submit a resignation letter which clearly and concisely identifies the reason for one’s resignation:  Medical inability to perform one’s job.  While such resignation, for the reasons stated, may not invoke what is termed the “Bruner Presumption“, it nevertheless lays the groundwork for arguing that one is entitled to the Bruner Presumption.  

Now, understand that such an argument may fly completely over the heads of anyone and everyone at the Office of Personnel Management.  However, if the case is denied both at the Initial Stage of the Process, and at the Reconsideration Stage of the Process at the Office of Personnel Management, then it must be filed as an appeal to the Merit Systems Protection Board.  There, with an Administrative Judge reviewing the record, while it may still end up that one is not entitled (technically) to the Bruner Presumption, sometimes the strength of an argument in favor of a legal precedent is almost as strong as obtaining the substantive elements of the legal precedent.  

Indeed, if all of the corollary issues surrounding the stated resignation for medical reasons are consistent — the medical documentation; using FMLA; being on OWCP for part of the time, or otherwise only able to work part of the time; etc. — then the fact that one was forced to resign based upon one’s medical inability to perform one’s job, is a consistency worth documenting and arguing thus:  While it is true that one was not removed for one’s medical inability to perform the job, it is “as if” one was removed, because there was really no other choice available.  Sometimes, it is the argument itself which provides the foundation for persuasion, and not the technical application of a legal device.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Agency Removal & Resignation

Whether an Agency is willing to wait while a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS, or if removal becomes the preferred action, is always a concern to the Federal or Postal employee.

Often, no matter what medical documentation is submitted as documentary proof of one’s inability to come to work, an Agency will insist that a Federal employee is “AWOL” because of some minutiae or technicality in the paperwork provided.  Regardless (no, I will not use the grammatically incorrect non-word, “irregardless”, which is a combined double-negative of the suffix and prefix, leaving the root word “regarding” intact, thereby making irrelevant the necessity of both the prefix and the suffix) of the Agency’s actions, it is important for the Federal or Postal employee to proceed with his or her Federal Disability Retirement application.

Attempting to predict how the agency will act or react; waiting upon an Agency’s response — ultimately, one must proceed affirmatively and not be concerned with what the Agency will or will not do.  Concurrently, however, the Federal or Postal employee should respond to an Agency’s removal actions.

Sometimes, if in fact the Agency is able to produce sufficient “evidence” to justify an adverse removal action (lack of sufficient notice; lack of medical justification submitted in a timely manner; violation of PIP provisions; violation of previously-imposed leave restrictions, etc.), an offer of resignation in order to maintain the official personnel file “clean” of any such adverse actions, is a reasonable course to take, both for the Agency as well as for the Federal or Postal employee.

More often than not, the Agency will be responsive to opening a discussion for a mutually beneficial removal based upon one’s medical inability to perform the essential elements of one’s job.  Since the same medical documentation to prove one’s medical disability retirement application should be sufficient to justify such a removal, the timing of such a removal could not be better.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Exaggerated Supervisor’s Statement

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the Federal and Postal employee should focus upon those aspects of the OPM Medical Retirement which are under his or her “control” — directly or indirectly — and not worry excessively about those things which are beyond one’s control or responsibility.  

Thus, obtaining the proper medical documentation; accurately, succinctly and coherently formulating the Applicant’s Statement of Disability on SF 3112A, etc., are within the purview of one’s control and responsibility.  Having the Supervisor complete the Supervisor’s Statement — SF 3112B — is part of the required final Federal Disability Retirement packet; what is contained within the parameters and confines of the form itself, however, is often beyond one’s control.  

While one assumes that a Supervisor’s Statement will be completed with a fair amount of accuracy, it will necessarily contain a certain perspective, intent, and often a sense of “protecting” the agency’s interest and goals.  Thus, the Supervisor will often overstate the extent of an attempted accommodation engaged in, real or imagined, in order to justify its actions concerning the Federal or Postal employee.  Further, it will often mis-state the concept of “light duty” and how it relates to accommodating the Federal or Postal employee.  In other sections of SF 3112B, it may over-state and exaggerate the employee’s conduct or impact of the medical conditions upon the Agency’s workload.  

An exaggerated Supervisor’s Statement will often be helpful to a Federal Disability Retirement case. Don’t be too hasty in attempting to correct inaccuracies and differing perspectives; sometimes, the exaggerated statements are merely differences of opinions and viewpoints, and may in fact be helpful in obtaining an approval from the Office of Personnel Management.  

In any event, a Supervisor’s Statement is beyond one’s control — and undue focus upon those issues beyond one’s control can detract from the greater mission at hand.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Exaggerated Applicant’s Statement

The preparation, formulation and filing of a Federal Disability Retirement application to the Office of Personnel Management, whether under FERS or CSRS, is a paper presentation to OPM.  

Paper presentations are quite different from a personal appeal or an “in-person” presentation to a group of individuals, or to a singular audience, in the following ways:  With a paper presentation, the “audience” (in this case, the Office of Personnel Management Case Worker) has the opportunity to review the various aspects of a Federal Disability Retirement application, in order to evaluate, compare, contrast, and cite-check facts, legal authorities and internal documents.  

With that in mind, it is important in preparing a Federal Disability Retirement application to strike a proper balance of tone, content, and narrative voice — and to make sure that the Applicant’s Statement on SF 3112A is accurate, without an appearance of exaggerated storytelling.

Think about it this way:  In describing an event, or a series of events, it is important to capture an audience’s attention by telling a “good story”.  But in telling a story, there is a natural difference of approach when telling it “live” to a person, and writing a narrative about it.  By “exaggeration” is not meant to necessarily imply stating an untruth; rather, credibility and believability is often based not upon the substance of a story (for truth is often of greater absurdity than fiction), but upon the conveyance and manner of the narrative voice.

Truth itself should always be the guide of one’s voice; one’s voice, however, must have the proper inflection and pitch, in making the delivery one of credibility and believability.

Sincerely,

Robert R. McGill, Esquire