Federal Disability Retirement under FERS: The Inconsequential

In the annals of history, most of us remain as the inconsequential.  Not even a footnote, nor even a passing reference, we are lumped into generations of third-person subjects unnamed and faceless.  We might read, for instance, that during the “Sixties” or “Seventies” (or beyond), this group of people or that community of individuals did X or participated in Y, and we might say to ourselves, “Oh, that is a reference to my generation”.  Yet, as an individual, it is rare to be identified by name.

History always fails to recognize the inconsequential; except, perhaps, by memory of relatives and faded photographs barely remembered in gatherings where old folks once chattered about this or that person whose absence emphasizes the starkness of the inconsequential.

Is that what many of us fear?  Not just about being ignored; and perhaps not even of leaving this world without a mark of recollection; but of being one of the inconsequential within a mass populace of unknown graves, unmarked but for those faded memories of vestiges in whispered conversations once echoing down the forgotten chambers of time.

And of that place where we toiled for a decade or more — where so much time was spent, so much effort and expenditure of labor: The workplace.  Once we are gone, will we even be remembered?  Will a fellow worker say, years hence, “Oh, remember that guy who…?”

For Federal employees and U.S. Postal workers who suffer from a medical condition such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job, the fear of becoming one of the “inconsequential” is often what makes the Federal or Postal worker pause before considering filing for Federal Disability Retirement benefits.

But just remember this: There is life after work, and whatever “consequential” work you believe you contributed to the Federal Agency or the Postal Service, there is nothing that cannot be replaced, and the greater consequence of failing to attend to one’s health is what makes for the inconsequential to loom larger with greater consequences down the road.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: Agency Removal & Resignation

Whether an Agency is willing to wait while a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS, or if removal becomes the preferred action, is always a concern to the Federal or Postal employee.

Often, no matter what medical documentation is submitted as documentary proof of one’s inability to come to work, an Agency will insist that a Federal employee is “AWOL” because of some minutiae or technicality in the paperwork provided.  Regardless (no, I will not use the grammatically incorrect non-word, “irregardless”, which is a combined double-negative of the suffix and prefix, leaving the root word “regarding” intact, thereby making irrelevant the necessity of both the prefix and the suffix) of the Agency’s actions, it is important for the Federal or Postal employee to proceed with his or her Federal Disability Retirement application.

Attempting to predict how the agency will act or react; waiting upon an Agency’s response — ultimately, one must proceed affirmatively and not be concerned with what the Agency will or will not do.  Concurrently, however, the Federal or Postal employee should respond to an Agency’s removal actions.

Sometimes, if in fact the Agency is able to produce sufficient “evidence” to justify an adverse removal action (lack of sufficient notice; lack of medical justification submitted in a timely manner; violation of PIP provisions; violation of previously-imposed leave restrictions, etc.), an offer of resignation in order to maintain the official personnel file “clean” of any such adverse actions, is a reasonable course to take, both for the Agency as well as for the Federal or Postal employee.

More often than not, the Agency will be responsive to opening a discussion for a mutually beneficial removal based upon one’s medical inability to perform the essential elements of one’s job.  Since the same medical documentation to prove one’s medical disability retirement application should be sufficient to justify such a removal, the timing of such a removal could not be better.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Agency, FMLA and LWOP

Because filing for Federal Disability Retirement is a process which may take 6 – 8 months, and sometimes longer, there is always the question of what the Agency will do during this time.  Of course, a Federal or Postal employee will often continue to work for as long as possible, and for as many days during each enduring week as possible, in order to survive economically during the process of preparing, formulating and filing a Federal Disability Retirement application.  The medical condition itself, however, will often dictate the feasibility of attempting to continue to work.

During this period, a Federal or Postal employee may have limited options — especially when Sick Leave and Annual Leave have been exhausted.  Protection by filing under the Family and Medical Leave Act (FMLA) will accord temporary protection and a buffer against a demanding agency.  A further request to be placed on LWOP beyond the 12 weeks which FMLA will allow for, will often be granted at the discretion of the Agency.

If an agency places one in AWOL status, such an action by the Agency should be countered with documentation from one’s doctor which justifies the continued absence of the Federal or Postal employee.  Unfortunately, there is often no clear answer to the question, “What if my agency fails to cooperate while I am filing for Federal Disability Retirement?”  There are only responsive steps to take in order to protect the ultimate goal — that of obtaining an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Burning Bridges and Walking Away

When a Federal or Postal worker suffers from a medical condition — often, silently, and without complaint — and such medical condition(s) impacts one’s ability to perform the essential elements of one’s job, there is often a tendency to engage in desperate acts, such as resigning, walking away from the job, etc.

After so much time has vested, and has been invested, by the Federal or Postal employee in the pursuit of a Federal or Postal career; and after so much stress, anxiety, sometimes intolerable working conditions are endured; or, having expended so much loyalty and exerted so much effort in doing an excellent job for one’s agency, it is a self-contradiction to simply walk away from the Agency without filing for Federal Disability Retirement benefits, especially when such laws governing Federal Disability Retirement were set up precisely for the type of Federal or Postal worker who has performed well, but has come to a point in his or her career where a medical condition has impacted one’s ability to perform all of the essential elements of one’s job.

Perspectives are often “out of balance” when one suffers from a medical condition.  Before taking steps of “burning bridges” and resigning, it is best to consult an attorney and see what the possibilities are for preparing, formulating, and successfully filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Disability Lawyer

 

Early Retirement for Disabled Federal Workers: The “Almost” Medical Inability to Perform Termination

Often, Agencies will proceed to propose a removal of a Federal or Postal employee based upon reasons which clearly “imply” one’s medical inability to perform one or more of the essential functions of one’s job, but explicitly, based upon other stated reasons — e.g., “Failure to Maintain a regular work schedule” or “Being Absent Without Official Leave (AWOL)“.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state:  “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under CSRS or FERS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application.  For, that is the ultimate goal:  to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Sincerely,

Robert R. McGill, Esquire

 

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

OPM Disability Retirement: Termination (Part 2)

There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.  Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.  The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.  As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency's Power

I hear it in both the content of the question and the anxiousness in the voice of a potential client seeking representation to obtain Federal Disability Retirement benefits under FERS or CSRS:  Can the agency influence the application negatively?  Can they terminate me upon learning that I am seeking disability retirement?  Can they stop me from using my sick leave?  The power of the Federal Agency can be overwhelming, but there are limits as to what “influence” they can have over a Federal Disability Retirement application. 

Ultimately, good or bad, the Office of Personnel Management is the agency which makes the determination on an approval for all disability retirement applications, and as I have written in many articles in the past, the best way to “neutralize” the power of an agency is to prepare the medical aspect of the Federal Disability Retirement application in an excellent manner.  This is done, first and foremost, by garnering the support of the treating doctor, gathering the best medical evidence possible, etc.  Other actions of the agency — of attempting to place you on AWOL, or filing an adverse action during the process, can normally be stopped by an attorney experienced in Federal Disability Retirement laws.  Disability Retirement under FERS or CSRS is not just a matter of filling out forms; it is a matter of securing the future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case. 

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Be Careful

As part of a Federal or Postal employee’s process of filing for Federal Disability Retirement benefits, one may have to negotiate, respond to, or fight against an unfair Agency’s attempt to remove the Federal or Postal employee — based upon factors other than what is truly the underlying basis — of his or her medical inability to perform the essential elements of the Federal job.  For whatever reason — of incompetence, of pure unkindness, of personal vendettas, etc. —  Agencies will often refuse to remove an individual for the administratively neutral reason (by “neutral”, to mean that it is not an “adverse” action) of “medical inability to perform the essential elements of the job”.  Instead, they will often revert to other reasons:  “excessive absences”, “AWOL”, “excessive LWOP”; “violation of a PIP”, and other such overtly misleading reasons.  When, the truth of the matter is/was, the Federal or Postal employee was sick, has a medical condition, and could not come to work because of medical reasons.  Be careful.  Fight the removal action.  Don’t accept the unfair basis.  File an appeal with the Merit Systems Protection Board.  Remember, a removal for medical inability to perform the essential elements of the job can help you get an approval in a disability retirement application.  Better yet, hire an attorney who will fight for you.

Sincerely,

Robert R. McGill, Esquire