Federal Employee Disability Retirement: An Expectation of Disaster

Most lives are lived with an expectation of unease; if things are going smoothly, we look with suspicion at what will come from around the corner; if calm and quietude prevails, we consider it merely a precursor to a major storm; and if good fortune comes our way, there is a leeriness as to the strings attached.

Perhaps distrust is based upon justifiable historical events; or, as news is merely the compilation of tragic events gathered into a compendium of daily interests, so our skewed perspective of the world merely reinforces what our childhoods entertained.  With a foundation of such natural tendencies to see the world with suspicion, when a medical condition impacts a person, the expectation of crisis is only exponentially magnified.

Suddenly, everyone becomes the enemy, and not just the few who are known to lack heart; and actions which were previously normative, becomes a basis for paranoia.  Chronic pain diminishes tolerance for human folly; depression merely enhances the despair when others engage in actions betraying empathy; and the disaster which was suspected to be just around the corner, closes in on us when pain medications fail to palliatively alleviate.

For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition begins to prevent one from performing all of the essential elements of one’s job, the bifurcation between the personal and the professional, between play and work, often comes crumbling down upon us, and signs of potential trouble portend to indicate to us that it may be time to “move on”.  That impending sense of doom?  It may be upon us.  That calm before the storm?  The reality of what the agency is contemplating may prove you right. And the potential loss of good fortune?

Agencies are not known for their patience.  For the Federal or Postal employee who is no longer one of the “good old boys” of the network of productive employees because of a medical condition which is beginning to impact one’s ability to maintain a daily work schedule, or perform at the level prior to the onset of a medical condition, consideration should be given to preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether one is under FERS, CSRS or CSRS Offset.

Time is often of the essence, and while most expectations of impending disasters are unfounded, the behavior of Federal agencies and the U.S. Postal Service can never be relied upon, any more than the weather can be predicted a day in advance.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement under FERS Reduction and Emergence

The fear in most instances is that the latter will not follow upon the former; that the state of diminution will become permanent, and the potentiality promised by a subsequent stage of linear progression will instead reflect a downward spiral or, worse, remain in a state of stagnant immobility.   And, indeed, neither in physics nor in human living, is there a stated and inevitable law of nature which mandates that following a period of reductionism, emergence of a greater state of affairs will occur.

Perhaps personal experience even dictates thoughts and reflections otherwise perceived; for, why is it that inventions and innovations seem to occur in youth?  Or that the older populace wants to merely hoard and fend off losses, like the football team that tries desperately to hold on to a lead, and loses in the process because they have failed to play with aggression and abandonment of fear?

Federal Disability Retirement should always be looked upon as an opportunity for the future.  It is likely the most thoughtful paradigm formulated by the Federal government, precisely because it encourages the system of disability payments to be “self-paying”, by allowing for disability annuitants to enter into a different vocation even while receiving a Federal Disability annuity, thereby continuing to pay back into the “system”.

Federal OWCP/Worker’s Comp does not allow a person to work at another job at all, while concurrently receiving permanent partial disability benefits; and Social Security Disability has such a low threshold of allowable earned income that it discourages further alternatives in employment.

But for Federal employees and U.S. Postal workers who receive FERS Disability Retirement benefits, the Federal and Postal worker can make up to 80% of what one’s former position currently pays, and all the while continue to receive the Federal disability retirement annuity, and meanwhile, accrue further years of Federal Service while on Federal Disability Retirement, such that at age 62, when one’s Federal Disability Retirement benefit is recalculated as “regular retirement“, the time that one was on Federal disability retirement counts towards the total number of years of service.

Thus, when a Federal or Postal employee first considers filing for Federal Disability Retirement benefits, there is always the fear involving the immediate reduction of one’s income; but such a limited perspective should always include the further possibility of the corollary potentiality — that of emergence in the near, intermediate or long-term future.

Regrouping sometimes takes some time; but whatever the specific circumstances which necessitate consideration in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, one should always be careful that a skewed perspective of future opportunity is not altered or quashed because of the medical condition from which one suffers.

As emergence is the natural consequence resulting from a period of diminution, and is the pink dawn of hope for the promise of a bright future, so reductionism is merely a temporary interlude in this brief visit upon the historical expansion of man’s infinite and limitless plenitude of potentialities.

Sincerely,

Robert R. McGill, Esquire
OPM Disability Retirement Lawyer

 

OPM FERS/CSRS Disability Retirement: Until Sickness, Death or Getting Fat

It was once that marriage vows were viewed as sacrosanct; inviolable promises made, endured through hardship, bilaterally seen as a partnership made in heaven.

Then, of course, “no fault” divorces became the fashion; fashion itself (or lack thereof) was a grounds for de-coupling or un-coupling (it is difficult to keep up with the modern vernacular and introduction of new-age language); and so people began to “drift apart” and expunge from such eternal vows undesirable concepts such as “death” or “sickness” (for, as marriage ceremonies are supposed to be “happy” occasions, why insert such negative vibes into the mix?), but implicitly left in the ultimate ground and justification: getting fat (or old, or ugly).

A parallel approach is often taken in the employment arena: your loyalty is expected, but if you fail to produce, you can be terminated.  Whether such pervasive attitudes become commonplace because of the “throw-away” nature of goods purchased and items sold in the universe of commerce, is for social anthropologists to debate; the fact is, the issue can be viewed from both sides: from the employer’s perspective, too many employees jump ship soon after being trained and invested, seeking other opportunities and offers.

But that leaves us in the state of our being and choosing: both in family life and in careers, the fickle and unsteady nature of either reflects the very society in which we participate.

Businesses are rarely run like families — or, perhaps a truer statement these days is that, yes, they are run exactly like families, and quick divorces for the most spurious of reasons are sought and attained.  For the Federal and Postal Worker who finds him/herself with a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, there is a price to pay for being a part of such a fickle system.

Federal employment is merely a microcosm of the greater system of employment encompassing Federal, State and private-sector economies; loyalty is no more precious in one sector than another.

From the Federal or Postal employee’s perspective, Federal Disability Retirement benefits must be an option which should be considered when a medical condition begins to impact one’s ability to perform all of the essential elements of one’s job.  From the Federal agency’s perspective, Federal Disability Retirement should be viewed as part of the larger promise of Federal employment benefits contractually offered, and when one partakes of accessing the promise, there should not be any grumbling, complaining, or retribution and retaliatory measures invoked.

But somehow, reality rarely follows the path of rationality.  As such, just as in messy divorces and other venues of uncoupling, one should always be cautious in whom to confide in, what to say, and when to reveal.  Federal Disability Retirement is a benefit accorded to all Federal and Postal employees, whether the Federal or Postal employee is under FERS or CSRS, and is sought and obtained through the U.S. Office of Personnel Management.

While not as sacrosanct as marriage vows of yore, it is also not as fickle or easy to get because one has gained a little weight over the years. As such, any such attempt to file for OPM Disability Retirement benefits should be taken seriously and with deliberate care; sort of like what one should do before heading off to Las Vegas for a quick coupling, or uncoupling, whichever the case may be.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Filing

The actual filing of a FERS Disability Retirement application with the U.S. Office of Personnel Management, whether under FERS or CSRS, can be rather anti-climactic, precisely because the prospective anticipation is merely beaten down by the long wait and the extended period of inactivity.

Thus, in the prior two phases of the administrative process — the “preparation and formulation” part of it —  the engagement in obtaining and completing the forms, presenting in written form and putting the entire Federal Disability Retirement application together, creates an appearance of progressively working towards a goal.  Once filed — if still with the agency or within thirty one (31) days of being separated from the Federal Agency or the U.S. Postal Service —  the agency must complete their portion.

Depending upon whether it is with the local Human Resources Office or the District Human Resources Office will often determine how efficient or helpful they are.  If a Federal or Postal employee has been separated from Federal Service for over thirty one (31) days, of course, then it must be filed directly with the U.S. Office of Personnel Management in Boyers, Pennsylvania.

Filing a Federal Disability Retirement application is both a physical act, as well as a psychological barrier to be broken; as to the former, it is a relatively simple matter of sending it in; as to the latter, it constitutes an important step in recognizing and acknowledging the necessity of attending to one’s medical needs for recuperative purposes, whether because of physical or psychiatric medical concerns which require an alteration of employment demands.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Using an Agency’s Action

Agencies will often act in predictable fashion; they act based upon prior actions engaged in; they act as an organic constituent of procedures and policies previously followed (often blindly and without thought) in the past; they act in self-interest, and often with a very narrow, myopic path and goal.

If an agency ignores the medical conditions and the documentation submitted showing the medical conditions of a Federal or Postal employee, and removes an individual from his or her Federal position based upon reasons other than one’s medical inability to perform one’s job (whether intentionally or because no one bothered to look at the medical documentation), then the resulting action can obviously impact a Federal Disability Retirement application under CSRS or FERS.  Often, the Agency’s general counsel will be the first person to finally listen to reason, and by then an appeal has been filed with the Merit Systems Protection Board, for the sole and narrow purpose — not of overturning the termination or getting one’s job back, but — of rescinding the adverse decision of removal and reissuing a removal based upon one’s medical inability to perform one’s job.

This course of action, however, is not always necessary.  Often, the adverse action, the delineation of poor performance, etc., can be directly tied to one’s progressively deteriorating medical condition, and the Agency’s own actions can be used to one’s advantage in proving a Federal Disability Retirement case.  Each case is different, and discretion in fighting for that which is helpful, and recognizing that what may “appear” to be adverse, is actually to one’s benefit, is the key to winning a Disability Retirement case under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The 1-Year Rule

Periodically, I remind everyone of the various “1-year” rules which govern Federal Disability Retirement issues under FERS & CSRS.  Since there are multiple applications of the 1-year rule, there is often a confusion which is still prevalent and ongoing. 

Thus, here are some clarifications:  You must file for Federal Disability Retirement benefits under FERS or CSRS either while in the employment of a Federal Agency or the U.S. Postal Service, or within 1-year of being separated from Federal Service. 

There are a couple of exceptions to this 1-year rule:  If you are found to be incompetent, you may be able to get a waiver from the Office of Personnel Management, but this is extremely rare and difficult to obtain.

Another exception, however, is found in the U.S. Court of Appeals case of Johnston v. OPM, where the Court found that if a person was removed for apparent medical reasons, but was never notified by the Agency, then the 1-year rule may be waived (this often happens to Federal and Postal employees who have been on OWCP for many years, and are forgotten and never informed of an initiation of an SF 50 separating him or her from Federal or Postal Service). 

The 1-year rule should not be confused with:  One’s medical condition needs to last for a minimum of 1 year (but this does not mean that you need to wait a year before filing for Federal Disability Retirement benefits; rather, it merely means that your doctor expects that your medical condition will last for a minimum of 12 months). 

I hope that this clarfies any confusions, and further, that it serves as a reminder to anyone who is contemplating filing for Federal Disability Retirement benefits under CSRS or FERS.

Sincerely,

Robert R. McGill, Attorney

FERS & CSRS Disability Retirement: Federal Agencies

Why do some Federal Agencies (and the Postal Service) act in non-supportive, negative ways, while others go out of their way to support their employees?  The answer to such a question essentially is as complex (or simplistic) as individuals themselves; for agencies are made up of individuals, and the reaction of an agency is often a reflection of the individuals who lead the agencies. 

When it comes to an employee filing for Federal Disability Retirement, this is often important to understand, because while Agencies (i.e., supervisors) cannot ultimately block a Federal Disability Retirement application under FERS or CSRS, they can sometimes make the process more difficult for the applicant, by engaging in certain tactics (e.g., placing a person on AWOL as opposed to LWOP; delaying the writing of a Supervisor’s Statement; the H.R. Department being obstructionist, etc.) 

In dealing with an Agency, it is important to remain courteous, but not weak; professional, but not a “pushover”.  Further, it is important, where possible, to have an attorney deal with the Supervisor or the H.R. Department as a “buffer” between the Applicant and the Agency, to de-personalize the process.  When Agency Supervisor’s take things personally, problems arise.  It is as if all of the pent-up angers of accumulated personal slights come roaring to the forefront.  One should always try and avoid such personalization of the process, and allow for the smooth transition of the employee to becoming a Federal Disability Retiree.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Termination

Termination by a Federal Agency or the Postal Service can be a trying time, even if it has been a long time in expectancy.  The key is to try and begin negotiating with the agency even before the Notice of proposed termination is issued.  During that period when you know that the Agency is considering filing a Notice of Proposed Termination, is precisely the window of opportunity to try and convince & persuade the agency that the underlying basis of any proposed termination is and should be based upon your medical inability to perform one or more of the essential elements of your job.  This would be done through various means:  submission of medical documentation to your supervisor, agency & Human Resources personnel; addressing key points concerning conduct or performance with medical evidence showing a direct and causal correlation between such conduct or performance with the medical evidence, etc.  If, on the other hand, a Notice of Proposed Termination is issued but one which is not based upon one’s medical condition, that does not mean that the window of opportunity has been lost — it just may mean that the strategy and tactic to try and persuade the Agency to amend the proposed termination may have to be adapted.  The key to all of this is to make sure and aggressively attack, rebut, and answer, at all stages of any proposed termination, in order to gain an advantage for one’s medical disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: After Separation from Service (Part 2)

Of course, it is always the separation from service based upon reasons delineated other than medically-based reasons which give rise to concerns in a federal disability retirement case.  Understand, however, that the “Bruner Presumption” is essentially a “scale-tipper” for the Office of Personnel Management (supposedly) and for the Administrative Judge at the Merit Systems Protection Board (of somewhat greater certainty).  By this, I mean merely that, with or without the Bruner Presumption, a Federal Disability Retirement applicant under FERS or CSRS must still prove by a preponderance of the evidence that he or she is eligible and entitled to federal disability retirement benefits. “Preponderance of the evidence” is essentially proof such that it is “more likely the case than not”.  Thus, when all things are equal, the Bruner Presumption is supposed to tip the scale in favor of the federal disability retirement applicant. 

On the other hand, if an individual was removed for reasons other than medically-based reasons — i.e., as a hypothetical, let’s say he was removed “for cause” — an act of dishonesty; failure to follow certain agency procedures; or whatever the case may be.  Does such a removal tip the scale the other way?  Not necessarily; however, it makes gathering the proper medical evidence that much more important, and what I often do is to try and tie in the underlying behavior which resulted in the removal “for cause”, with the medical basis — if at all possible.

Sincerely,

Robert R. McGill, Esquire