Postal and Federal Disability Retirement: Medical & Legal Issues

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, sometimes there is an inevitable intersection between the Medical Issues involving the patient and doctor, and the Legal Issue embracing the Client-Lawyer-Doctor.

Often, in terms of filing for FMLA protection, or taking too much sick leave, being placed on leave-restriction by the Agency, etc., or in the very question as to whether it will reflect negatively upon a Federal Disability Retirement application if one continues to work without taking any sick leave — these “mixed questions” will intersect between the medical and legal arenas.

The conceptual distinction and bifurcation of the two issues is important to maintain.  First and foremost, one’s medical condition should always be considered as the primacy of concern.  Obtaining the proper medical care and taking care of one’s health and medical needs should be absolute and inviolate.  The secondary question of how it will reflect upon a Federal Disability Retirement application, inasmuch as it is a “paper presentation” to the Office of Personnel Management, should be an afterthought.  For, after all, the whole purpose of filing for FERS Disability Retirement benefits is to take care of the primary consideration — that of one’s health and medical needs.  If one takes care of “first things first”, then the “second” things will naturally fall into place.

Now, having said that, how an Agency attempts to characterize a Federal or Postal employee’s attempt to attend to one’s medical conditions can of course sometimes impact a Federal Disability Retirement application, and should be responded to aggressively and in a timely manner.  But the substance of any such response, if it is based upon the medical condition, will always “correct” any such agency mis-statement.

Integrity in a situation always prevails, and that is the whole purpose of having Federal Disability Retirement benefits and the laws which govern such benefits, in order for the Federal or Postal employee to attend to one’s medical conditions first, and then to “move on” in life.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Workplace Issues

The reason why workplace issues, whether having any relevance in a Federal Disability Retirement application or not, continue to be insidious in their persistent appearance and stubborn insistence upon dominating an Applicant’s Statement of Disability, is because they are often perceived to be the originating cause (or so it is often thought to be by the Applicant who is preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS) of a medical condition.

Whether the age-old question of the “egg before the chicken or the chicken before the egg” is answered, and in what way, is often the wrong approach to take.  More often than not, when a medical condition begins to progressively deteriorate a Federal or Postal employee’s health, and the impact upon one’s ability/inability to perform the essential elements of one’s job begins to manifest itself to supervisors, coworkers, managers, etc.; at about the same critical juncture, harassment — or the perception of harassment — begins to occur. Such workplace issues then begin to exponentially quantify and exacerbate, feeding onto each other:  the workplace issues begin to exacerbate the medical condition; the stress-levels rise; soon thereafter, agency efforts to protect itself begin to get triggered — counseling letters on leave usage, sick-leave restriction, placement of a Federal or Postal employee on AWOL, 14-day suspensions, placement on a PIP, all begin to erupt.

The key in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, however, is to have the self-discipline to identify which workplace issues are relevant to bring into the arena of an OPM disability retirement application. Discipline in such matters is a difficult measure to undertake; however, it is a critical step to recognize and initiate, bifurcate and separate, and where irrelevant, to excise and discard, when preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Agency Adverse Actions

Agency actions of an adverse nature seem to go hand-in-hand with filing for Federal Disability Retirement benefits under FERS & CSRS.  If one pauses for a moment, one can easily understand the underlying reasons:  Medical conditions often result in attendance problems or impact the ability of a Federal or Postal employee to perform all of the essential elements of the position.  Disability Retirement eligibility is precisely that which attempts to prove the latter point — of the impact upon one’s ability to perform all of the essential elements of the positional requirements.  

Thus, when attendance, performance or conduct concerning the positional requirements become an issue, the Agency will often begin initiating adverse actions — ranging from instituting a “Performance Improvement Plan” (PIP), memorandums of warnings, suspensions, and removals.  While adverse actions reflect negatively by their definition, the positive aspect of such adverse actions, in combination with Federal Disability Retirement, is that the adverse action, having the underlying basis of resulting because of one’s medical condition and because of one’s medical inability to perform the essential elements of one’s job, can actually be used to argue for a FERS or CSRS Disability Retirement approval.  As with most of that which is “true” in life, the irony of this cannot be overlooked.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Using the Law

The growing body of law is a pliable, ever-changing process, and where appropriate, it is the implied duty of the attorney to apply arguments and persuade by analogy. Sometimes, actions by agencies which, in one particular context, may be deemed as a negative factor, yet in the context of filing for disability retirement, it can be turned around and applied as “proof-positive” that, indeed, it only further shows that one’s medical condition has impacted one’s ability to perform the essential elements of one’s job.

Thus, while an employee may be placed upon a PIP (“Performance Improvement Plan”) or placed on LWOP and subsequently terminated and separated from federal service based upon unacceptable attendance (and in such termination cases, perhaps the Bruner Presumption would not be applied in a technical sense), it is appropriate to argue to the Office of Personnel Management, and further, to the Judge at the Merit Systems Protection Board, that while the technical application of the Bruner Presumption may not apply, nevertheless, such Agency actions are indicators of the acknowledgment and concession, that the employee suffered from a medical condition, that the medical condition indeed impacted his or her ability to perform the essential elements of the job, and that is why unacceptable attendance and/or a PIP plan was initiated. Negative agency actions, in the context of applying for disability retirement, must be interpreted and argued in the best light possible, in each instance.

Sincerely,

Robert R. McGill, Esquire