Early Medical Retirement for Disabled Federal Workers: Intersection with VERA

Questions always abound when Federal agencies and the U.S. Postal Service offer incentivized programs under the Voluntary Early Retirement Authority (VERA) propounded by the U.S. Office of Personnel Management.  In accepting a VERA, the Federal or Postal employee who suffers from a medical condition must take into account whether the VERA should take the place of a Federal Disability Retirement application, or whether it will merely be the first step in the process of filing for Federal Disability Retirement.

Often, because Federal Disability Retirement takes many months in order to secure and procure, Federal and Postal employees considering such an option will elect to accept a VERA in order to have some income during the time of filing for, and waiting upon, a decision from the U.S. Office of Personnel Management in a Federal Disability Retirement application.

Questions which the potential Federal or Postal VERA annuitant should ask themselves include: What impact does a Federal Disability Retirement application have upon a VERA? Is there an offset between Social Security and the VERA annuity, as opposed to the offset which occurs under Federal Disability Retirement, and if so, which provides greater financial sense? Are there provisions where, if the Federal or Postal employee accepts a VERA, one must repay any lump sum incentive which is offered, if one subsequently files for Federal Disability Retirement benefits and gets it approved?

While it often makes sense to accept a VERA, then to subsequently file for Federal Disability Retirement benefits within one (1) year of being separated from Federal Service as a result of the VERA, one should nevertheless do so with full knowledge and information.

As a final point, in addition to obtaining all information and basing one’s decision upon full knowledge, the fact that the years which one is on Federal Disability Retirement counts toward the total number of years of one’s Federal Service, should always be factored in — especially if one lives to be a ripe old age, where one’s retirement nest egg will be an important future consideration.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Non-nexus

Meeting an adequacy test may constitute sufficiency for some purposes, but not for others.  Thus, it may be enough in completing an FMLA form to have a diagnosis, along with answers to other questions on WH-380-E.  But mere identification of a medical condition via a diagnosis, along with a description of symptomatologies will not be enough to meet the sufficiency test in a Federal Disability Retirement application.

People often assume that having a medical condition in and of itself sufficiently explains the severity of one’s condition, and any implied “blank spaces” can be filled in by the mere existence of such a medical condition.  But Federal Disability Retirement, whether under FERS or CSRS, filed through, reviewed by, and approved or disapproved by the U.S. Office of Personnel Management, must be proven by a preponderance of the evidence that the medical condition itself prevents the Federal or Postal employee from performing one or more of the essential elements of one’s positional duties.

As such, the identification and description of a medical condition fails to comply with the adequacy standards in proving eligibility for Federal Disability Retirement benefits.  One must establish, through the conduit of a medical professional, the “nexus” or “connection” between one’s identified medical condition and the inability to perform one or more of the essential elements of one’s job.

The weight of the proof is upon the Federal or Postal applicant.

The foundation of such evidence begins with the identified medical condition, but in and of itself, it is a non-nexus — until it is squarely placed in the context of one’s official position and the duties required by one’s duties.  Thus, the non-nexus become the nexus-point when combined with the identification and description of one’s positional duties.

It is this realization of the step-by-step sequence of proof which constitutes adequacy and sufficiency of evidence, and one of which the Federal or Postal applicant for OPM Disability Retirement benefits must be aware.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: When and Whether

When one should file a Federal Disability Retirement application, whether the Federal or Postal employee is under FERS or CSRS, through the U.S. Office of Personnel Management, is a matter of individual circumstances and needs — except in the particular situation where objective timeframes impose mandatory filing.

Whether one should file or not is a similar question based upon the medical conditions one suffers from, as well as the extent of a doctor’s support for such an administrative filing — but again, the “whether” also may be mandated by necessity if a Federal or Postal Worker is approaching the 1-year mark of having been separated from Federal Service.

The general rule concerning an impending and upcoming Statute of Limitations is the following:  If the Federal or Postal Worker fails to file within 1 year of being separated from Federal Service, the ability to file will forever be blocked (with some narrow and exceptional circumstances excepting the passing of the 1-year deadline).  As such, it is better to file than not (obviously).

Further, on most issues, one can supplement a Federal Disability Retirement application later on (this is where the Federal or Postal applicant must be very careful in completing the SF 3112A, Applicant’s Statement of Disability); whereas no such additional pursuance of the Federal Disability Retirement matter can be advanced if one does not file on a timely basis to begin with.

When and whether to file are therefore matters of discretion — unless the Statute of Limitations is about to impose itself upon the when and the where

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Back to Fundamentals

In any endeavor, concern or current focus of attention, one can become embroiled in the morass of complexities which comprise the peripheral penumbras of the issue, and disregard the fundamental essence of the matter.  In proverbial terms, it is to overlook the individual trees while viewing the generality of the forest.  So, back to basics.

In a Federal Disability Retirement application, a person who is under FERS (Federal Employees Retirement System — normally those who entered into the Federal Workforce sometime after 1985, and who have a Thrift Savings Plan and contribute to Social Security) or under CSRS (Civil Service Retirement System — pre-1985, with no TSP) may become eligible for Federal Disability Retirement benefits, but must have the following minimum eligibility criteria met: under FERS, you must have at least 18 months of creditable service; under CSRS, you must have at least 5 years of creditable service.

There is a hybrid status applicable for some, called CSRS-Offset, also.  Once that eligibility criteria is met, then the Federal or Postal Worker can take the next step in determining whether one may want to proceed, by asking the following questions: Do I have a medical condition? Does that medical condition prevent me from performing one, if not more, of the essential elements of my position? What are some of the essential elements of my position which I cannot perform? Do I have a treating doctor who will be supportive of my case (remember, this is a medical disability retirement; as such, one must be able to establish through proof of medical documentation, that the medical condition impacts one or more of the essential elements of one’s job)?

These are some of the preliminary, basic questions which should be asked and answered, in order to begin the process of determining whether Federal Disability Retirement is the best pathway for the Federal or Postal employee suffering from a medical condition, in order to manage and maneuver one’s way through the thick forest of a bureaucracy known as the U.S. Office of Personnel Management, which is the agency which ultimately receives and reviews all Federal Disability Retirement applications, whether you are under FERS, CSRS, or CSRS-Offset.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: The Unknown Resulting from a Partial Answer

If a question is not fully answered, is it a lie or a mere oversight?  If one places reliance upon a partial answer, was it because the question was not properly posed, or the answer only fragmentally provided, or as a result of a deliberate attempt to mislead?

Everyone has experienced the process of “switch-and-bait“, where the sales pitch is declared as one never matched in the history of the world; but upon arrival, the original declaration of the event was merely the “bait” in order to complete the “switch” to persuade the attendee to accept another product.  In such circumstances, it is indeed fortunate if the only real consequence was a wasted trip, and one can turn around and walk out.

In law, knowing only the “partial answer”, or the incomplete set of facts, can lead to irreversible consequences.  For Federal and Postal employees, whether under FERS or CSRS, who suffer from a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job, it is important to receive full answers — from all sources — in order to make the right decision for one’s future.

Filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management is a serious step for the Federal or the Postal employee’s future. As such, the information which one relies upon in making that important decision — from what the process entails, to the consequential interplay between FERS & SSDI and a multitude of other questions and answers — should be fully understood.

If a source of information seems incomplete, there is often a reason, and sometimes an underlying motive. Beware the buyer; always seek an authenticating source.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Beast of Burden

The burden is undertaken by those have little choice in the matter, but who willingly submit to the responsibility and obligation.  Traditionally, the “beast of burden” (other than being a Rolling Stone song) refers to a somewhat-domesticated animal, perhaps a donkey or an ox, who must bear the weight of man’s work.

In law, the “burden” is one of proof — of the affirmative obligation to present one’s facts, persuasive argumentation based upon such facts, and the application of the relevant law which supports both the facts and the arguments.  The “other side” in the litigation has no burden at all, and can simply sit and do nothing, if he or she so chooses, and see whether or not the plaintiff, the appellant or the Federal Disability Retirement applicant has submitted sufficient proof such that he or she has met his/her burden of proof.

As the weight placed upon a beast of burden is often heavy and demanding, so in a similar vein the litigant who has the burden of proof should always expect to exceed what is “necessary” in any given case.  For the Federal or Postal employee who is filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, it is indeed a heavy burden to bear in order to meet the legal criteria of a Federal bureaucracy who has the unmitigated power and authority to approve or deny.

The burden of proof — it is as heavy as that which we place upon a beast of burden, and the weight of such responsibility can overwhelm us, lest we have the reserve of strength to plod onward.

Sincerely,

Robert R. McGill, Esquire