OPM Disability Retirement Lawyer: Preemptive Actions

Knowledge can be a dangerous commodity; partial, or little knowledge, can be all the more damaging, precisely because actions can result based upon incomplete information and slices of factually curtailed composites.

The Court of the Appeals for the Federal Circuit has previously pointed out one of the methodological deficiencies engaged in by the U.S. Office of Personnel Management, in its review and determination of Federal Disability Retirement cases:  of focusing upon that which is not included in a Federal Disability Retirement application, as opposed to reviewing the information of what has been received.

Such a distinction may be a subtle one, and a difference which can be easily overlooked, but it reveals much more than mere word-play.  For, what it manifests is an application of a criteria based upon an erroneous assumption, and one which continues to be applied to this day, despite case-law which admonishes OPM to the contrary.

Vanieken-Ryals v. OPM, a 2007 Federal Court of Appeals case, points out the error of OPM’s ways in Federal Disability Retirement cases, where insistence upon “objective” medical evidence continues to dominate, despite the lack of such requirement to the contrary.  Such an issue is especially relevant, of course, in cases where psychiatric medical conditions prevail, and when OPM insists upon the lack of such “objective” medical evidence where none can be obtained, it leads to Federal and Postal employees to react desperately in a preemptively unreasonable frenzy of actions.

Not knowing the law is one thing; knowing, but deliberately ignoring it, is quite another.  But the price Federal and Postal employees pay for when a bureaucracy engages in practices which clearly defy the clear mandate of legal requirement, results in preemptive actions which ultimately lead to another day in Court, to argue that which one thought was previously already established.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for Federal Workers: The Legal Responses

There is of course the old adage that “good fences make good neighbors“.  It is meant to magnify the importance of demarcations, and how societal mores, rules, and accepted dictates of common etiquette provide for social boundaries without which the breakdown of common decency occurs.

Fences and boundaries not only contain; they provide markings which restrain others.  The white powder placed on a football field; the painted lines on a basketball court; the pitcher’s mound from which the pitcher must throw the ball; these are all accepted boundaries — symbols of containment as well as of restraining devices to the “others”.

In a Federal Disability Retirement application to the U.S. Office of Personnel Management, whether under FERS or CSRS, imagine what the outcome would be for the Federal or Postal Worker if all that existed were the originating statutes governing the criteria for a Federal Disability Retirement application.  Imagine a world in which OPM was the sole arbiter of its own statutes — of having the right to interpret the dictates of its own mandates.

Look at the recent case of Stephenson v. OPM, in which OPM interpreted the statutes of another agency (the Social Security Administration) and decided that an offset of SSDI benefits against a FERS Disability annuity could still be perpetrated even though no actual receipt of funds was received.

Laws are like fences and boundaries; they are to be used both as a shield, as well as a sword.  Use of legal arguments not only restrains a Federal Agency from acting and stepping out “too far”; they can also be used to attack and force a retreat.  But remember that, just as the fence-building should be left to the carpenter, so the sword should be used by a warrior.  In today’s parlance, don’t think that anyone and everyone can be a courtroom lawyer.

Sincerely,

Robert R. McGill, Esquire

FERS Medical Retirement Benefits for US Government Employees: The Long-term Plan

Federal Disability Retirement is best anticipated and implemented within the larger context of a long term plan.  For, with the reduction of immediate income, replaced by an annuity which is fixed, but with a future potential to earn additional earned income in another (or even similar) vocation, it is best seen not just for the present circumstances, but as a base from which to build a greater future.

Future considerations may need to be entertained.  For example, how aggressively should Social Security Disability (SSDI) be pursued? If the Federal or Postal employee attempting to become eligible for Federal Disability Retirement benefits will not be immediately seeking to work at another, private-sector job, and there is a good chance for qualifying for SSDI, then you may want to consider seriously attempting to qualify for SSDI.

For most people, the FERS requirement of filing for SSDI is a mere formality. For those who intend upon using the immediacy of the annuity for a recuperative period in order to attend to medical needs, then perhaps a minimal effort in applying for SSDI would be appropriate.

With the recent case of Stephenson v. OPM now firmly in the “win” column, any issue about future recalculation once a Federal or Postal employee loses his or her entitlement to SSDI benefits, has now been resolved, and the Federal or Postal annuitant need not worry about the issue.  Of course, there is a wide chasm between what “the law” says, and how quickly OPM will do what they are now mandated to do.  But in the end, OPM will have to recalculate and reinstate any amounts which were offset, once a Federal or Postal employee loses his or her SSDI benefits.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Continuation of the Offset Issue

As noted previously, the issue of whether or not OPM needs to recalculate one’s FERS Disability Retirement annuity upon losing one’s SSDI benefits should now be resolved.  

The U.S. Office of Personnel Management has been arguing for years, if not decades, that despite losing SSDI payments because the recipient has engaged in substantial gainful activity, that no recalculation is in order because the annuitant is still technically “entitled” to the benefits.  

The argument which the undersigned writer made before a 3-Judge panel of the U.S. Court of Appeals for the Federal Circuit, however, is the following:  How can one “offset” something with nothing?  As King Lear said to his daughter Cordelia when she refused to shower him with flowery praises of love, “Nothing comes from nothing”.  

Whatever word-games one may engage in, one cannot offset an amount of zero against another amount.  Further, since the FERS (and CSRS) Disability Retirement annuitant is allowed to make up to 80% of what one’s former position pays, it made absolutely no sense to penalize the individual who was receiving SSDI but loses it for making too much money, to not place him/her in the same position as one who never received SSDI.  

Common sense seems to have prevailed.  

The security of knowing that, in filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Courts will actually reverse a nonsensical position of a government agency, is indeed something to smile about.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Legally Sufficient Accommodation

Whether the Federal Agency or the U.S. Postal Service has offered a legally-viable accommodation is determined by the criteria of an offer made which is either at the same pay or grade as the position one currently occupies; but, moreover, as the Bracey case and subsequent cases which elaborate upon the issue have made clear, it cannot be a position which is merely “made up” or temporary by nature, or one in which the current Supervisor merely whispers in one’s ear and says, “Just don’t do X, Y and Z essential elements of the job.”

The reasoning behind the view that such a temporary, modified “position” does not constitute an “accommodation” under the law — and therefore would not prevent eligibility for Federal Disability Retirement benefits — is easily justified by the age-old adage that, where one lives by the sword, one dies by the sword; meaning, thereby, that if Supervisor X can simply suspend certain essential elements of a job, a future Supervisor Y can just as easily reinstate the requirements of performing those previously-unattended elements, and require that they be performed.

That being said, there is nevertheless nothing wrong with an Agency allowing for a Federal or Postal worker to work at a position and lessen the requirements of the job.  For some, it may be that such a modified position is acceptable, especially in light of receiving a regular paycheck.

The issue of “accommodations” should not be confused with the eligibility requirements of being able to file for, and be approved with, Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  There is the issue of legally-sufficient accommodation for purposes of preparing, formulating and filing for Federal Disability Retirement benefitsfrom the U.S. Office of Personnel Management; then, there is the commonplace parlance of being informally “accommodated” if one wants to continue to work; the two are not contradictory.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Legal Standards

Recent decisions issued by the Full Board of the U.S. Merit Systems Protection Board — specifically, Henderson v. OPM, decided on January 31, 2012, reestablishes the two general standards of applicable evidentiary approaches in proving a Federal Disability Retirement case, whether under FERS or CSRS.  Whether or not the U.S. Office of Personnel Management will “comply” with the applicable standards as set forth by the MSPB is another question.

Often, the “trickle-down” effect of a legal opinion can take years to accomplish — and by that time, further refinements by the courts and by the MSPB may have made such legal opinions moot, irrelevant or otherwise restrictive in its practical application, anyway.  For the time being, however, the two legal approaches can be generally stated thus:  One must prove, by a preponderance of the evidence in all Federal Disability Retirement cases, either (A)  That certain specific medical conditions prevent one from performing certain specific essential elements of one’s job (somewhat like a 1 – 1 correspondence, or more generally, a medical opinion showing that medical condition X prevents job duties Y because of Z) or (B) as stated previously in Bruner and multiple other cases, there is an “inconsistency” between one’s medical condition (or multiplicity of medical conditions) and the type of positional duties one must engage in to perform the essential elements of one’s Federal or Postal job.

The former criteria to satisfy may be deemed “particularized”; the latter may be seen as a more “generalized” approach.  While there is certainly a conceptual distinction between the two, in pragmatic terms, such a distinction may be without too much difference, if only because doctors will often go back and forth between the two approaches, anyway, in writing a medical narrative report.

The conceptual distinction is not as apparent as one between “explicit” and “implicit”, but certainly the former approach encapsulates a greater specificity of detailing a connection between X and Y, whereas the latter requires the reader or reviewer (i.e., OPM or the Administrative Judge) to think through and analyze the entirety of the issue.  But that life would not be so complicated.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Annotating the Record

It is always important, in contemplating a Federal Disability Retirement application either under FERS or CSRS, to annotate the record where possible.  Remember that the Merit Systems Protection Board has previously found that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM , 109 MSPR 529 (2008).

As such, in preparing a Federal Disability Retirement application, a successful outcome may depend upon a “war of memorandums” between the applicant and the Agency.  If the Agency is attempting to remove a Federal or Postal employee based upon “performance” or “conduct” issues, without regard to any medical evidence submitted to the agency, and thereby attempting to characterize the absences, the lack of productivity, warnings and suspensions as mere intransigence and insubordination, then it is important to annotate the record and memorialize the contacts, the submissions, etc., by writing confirming emails, letters, memorandums, etc., where the agency was informed about the medical conditions, which medical documents were submitted, to whom they were submitted, and even the content (perhaps in summary form) of what the doctor has stated.  The only way to remove a shadow of a doubt is by allowing the sunlight in (sorry for the trite analogy/metaphor).

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Bruner Revisited

In filing for Federal Disability Retirement benefits under FERS or CSRS, one should never pause or hesitate from affirmatively going forward in preparing a Federal Disability Retirement application based upon what the Agency will or will not do; is expected or not expected to do; or is predicted or not predicted to do.  One should simply move forward based upon one’s personal and professional circumstances, the extent of the medical condition, the impact of one’s medical condition upon one’s ability to perform the essential elements of one’s job, etc.  

Thus, for instance, where a Federal or Postal employee has informed the Agency of one’s medical condition, or one has filed for FMLA and submitted substantiating medical documentation, if the plan is to “wait” for the Agency to remove the Federal or Postal employee in order to obtain the advantage of what is generally known as the “Bruner Presumption,” such a plan is normally not the best course of action, for various reasons.  

First, the Agency may take an extraordinary amount of time, and in the end, may attempt to remove the Federal or Postal employee for “other reasons” (performance issues, for instance).  Second, whether or not one “gets” the Bruner Presumption in a case, that legal advantage is really for the Third Stage of the process — at the Merit Systems Protection Board — inasmuch as most of the Claims Reviewers at the Office of Personnel Management are not legally informed enough to know such a legal presumption from a nearby neighbor named John Doe Bruner.  And Third, one must affirmatively prove by a preponderance of the evidence, anyway, that one cannot perform the essential elements of one’s job because of a medical condition.  The Bruner Presumption, while a great thing to have, does not override the medical condition and evidence which must be presented.

Sincerely,

Robert R. McGill, Esquire