Postal and Federal Disability Retirement: The Ties that Bind

Often, the Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is involved in, or considering such involvement in, collateral or ancillary actions against the Agency or the U.S. Postal Service.

Litigation is a difficult road to travel; both in terms of emotional drain and financial commitment, a successful EEOC action or some form of lawsuit against a Federal Agency, can take a tremendous toll upon the Federal or Postal employee engaging in such parallel legal universe.  Further, when a medical condition is involved, the ability of the litigant to engage in the protracted, emotionally and physically draining garbage pit of depositions, discovery and endless demands of a Dickensian “Bleak House” endeavor, can detrimentally impact one’s health and ability to recover.  Justice has a high price; perhaps that is why it is rarely achieved.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the engagement of collateral legal avenues often reflects a complex history of an adversarial relationship between the Federal or Postal employee, and the Federal Agency or the U.S. Postal Service.  Yet, such ancillary litigation is often anathema to obtaining Federal Disability Retirement and in many ways defeats the purpose.

As part of the review of the entirety of the process, it serves you well to consider the toll of such collateral litigation once the Federal or Postal employee files for, is waiting for, or receives a Federal Disability Retirement.  At what price, and to what end?  Or is it a tie which continues to bind, and merely squeezes the life that is left?

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Peripheral Issues

The reason why it is important to keep the peripheral issues where they belong — outside of the primary focus of a Federal Disability Retirement application, and not inject such issues, complaints or narratives — is because they can have multiple unintended consequences.

If a Federal or Postal employee is engaged in collateral litigation, complaints, grievances or other outstanding administrative filings, including EEOC Complaints, lawsuits, formal grievances, MSPB appeals, etc., while for the most part such collateral filings will not directly or indirectly impact a Federal Disability Retirement application, they can if you directly inject such issues into the application for Federal Disability Retirement.

In other words, if in the Applicant’s Statement of Disability (SF 3112A) , you refer directly to an outstanding EEOC Complaint, then it may spring forth a red flag that your case is one of “situational disability“.  Just a thought.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Interaction with EEOC & Other Legal Processes

I am often asked if other legal processes already filed — an EEOC Complaint, a corollary adverse action being appealed, etc. — will have an impact upon a Federal Disability Retirement application.  My general answer is, “No, it will not have an effect upon filing for Federal Disability Retirement.”  The second question which often follows, is:  What if the EEOC filing contradicts the Federal Disability Retirement application?  While the full answer to such a question will differ from case to case, depending upon the peculiar and particular circumstances of each individual case and application, my standard response to the second question will often contain a responsive query:  Have you ever heard of an attorney speaking out of two or three (or four) sides of his mouth?  As attorneys, we make multiple (and sometime contradictory) arguments all the time.  I am not concerned with the factual or legal arguments in a concurrent/parallel EEOC case; my job is to make sure that my client obtains a disability retirement — and if it somewhat contradicts the arguments made in an EEOC complaint, so be it — for, after all, I’m merely an attorney, and such inherent contradictions only prove the fact that lawyers have at least four sides to every mouth.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire