Postal and Federal Disability Retirement: The Agency & the Burden of Proof

In a Federal Disability Retirement case, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, the burden of proving one’s medical inability to perform one or more of the essential elements of one’s job, always remains with the individual Federal or Postal applicant.

Certainly, there are actions by the agency which may add to such proof (e.g., declaring that the Federal or Postal worker is “not fit for duty” will further concretize an assessment made by a third party; or initiating a separation from Federal Service based upon one’s medical inability to perform the essential elements of the job will trigger the Bruner Presumption, which then invokes a rebuttable presumption and shifts the “burden of production” (note that it is not the shifting of the “burden of proof” — a conceptual distinction important to recognize) over to the U.S. Office of Personnel Management.

Waiting for one’s agency to act upon anything is, however, a very dangerous venture to begin with; thinking that one’s own agency will provide the proof necessary to establish one’s eligibility for Federal Disability Retirement benefits would not only be dangerous, but foolhardy.  For, at its most fundamental level, the fact that the very entity which makes a decision on a Federal Disability Retirement application (OPM) is one which is separate and independent from the agency for which one works, creates a chasm which only further magnifies the inherent problem.

OPM pays little to no attention to what the agency does — except, perhaps, when the agency attempts to directly confront and challenge a Federal Disability Retirement application.  Otherwise, don’t look for help from one’s agency (generally speaking) when one is filing for Federal Disability Retirement benefits; such unfounded reliance will only disappoint, at best.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Proactive Development of a Case

The problem with medical conditions is that we tend to regard them passively, as recipients of service at a restaurant, or as victims of an automobile hit-and-run.  There is some limited truth to such a perspective; for, as medical conditions come upon us without notice or invitation, we are merely recipients of a condition of that which we never asked for nor desired. But once it becomes an existential fact, and one which becomes chronic and somewhat irreversible, then the subsequent methodology of what we do with the medical condition becomes the responsibility of the bearer of such bad news.

For Federal and Postal employees who suffer from a medical condition such that the medical condition(s) prevents one from performing one or more of the essential elements of one’s job, whether under FERS or CSRS, consideration must be given to filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.

Passivity in life will only engender magnification of inactivity; and as one must affirmatively prove by a preponderance of the evidence one’s Federal Disability Retirement case, sitting idly by as one’s agency takes steps to increase the penalties of unsatisfactory performance via leave restrictions, a PIP, suspensions, or other adverse actions, including removal from Federal Service, is simply an ineffective way of formulating and developing one’s Federal Disability Retirement case.

Case development requires a proactive stance; inactivity will only feed upon the devastating medical condition already suffered.  Being a victim of a disease or injury once is bad enough; let not the occurrence be magnified by compounding the problem through inactivity and passivity.

Sincerely, Robert R. McGill, Esquire

Federal Disability Retirement: Doctors and the Peculiarities of Treatment

Efficacy of treatment is the goal for a doctor; and upon information that such efficacy has failed to render improvement or incremental signs of progress, many doctors lose interest, or become suspicious.

Social Security Disability, of course, requires a higher standard of proof — one of essentially “total disability”, where one is no longer able to engage in “substantially gainful activity” — and, as such, is an implicit admission of medical failure.

FERS & CSRS Disability Retirement, however, is merely an acknowledgement that there are certain medical conditions which, limited in their scope and impact, prevent a person from performing one or more of the essential elements of a particular kind of job.  Such a person who goes out on Federal Disability Retirement benefits can still remain productive in the work-world, by pursuing another, different kind of vocation.

As such, from a medical point of view, conveying the distinction between the two is like the difference between identifying a hill as opposed to a mountain:  both may have some elevation, but the extent and scope between the two goes well beyond a linguistic peculiarity.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Qualifying

The concept of “qualifying” is both peculiar as well as interesting; for, one questions whether one can “qualify” for a sports event (often, this encompasses issues of age, physical ability, whether gender may disqualify you, etc.); and then there are “qualifying events”, where you must pass certain levels of “test” activities in order to get to the next round, as in golfing events.  In racing events, there is always talk about getting through the “qualifying” stages; and, similarly, in attempting to secure a job, the applicant is often questioned as to whether he or she has the “qualifications” for the position.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is also the initial question of whether a Federal or Postal worker “qualifies” for the benefit identified as “Federal Disability Retirement”. Here again, to “qualify” means that a Federal or Postal worker meets certain requirements. Thus, there are automatic dis-qualifiers, such as: If you are not a Federal or Postal worker, but work for the county or state, then you do not qualify for benefits under FERS or CSRS from the Federal system. Similarly, if a FERS individual does not have at least 18 months of Federal Service, or a CSRS Federal employee does not have at least 5 years of Federal Service (which is obviously unlikely), then you cannot “qualify” to even apply for Federal Disability Retirement benefits from the Office of Personnel Management.

Those are immediate qualifying “events”.  Then, of course, the main event — the tournament of all competitive activities for Federal Disability Retirement purposes — concerns whether or not a Federal or Postal Worker qualifies for Federal Disability Retirement benefits because of his or her medical condition.  This foundational qualification can only be answered by looking at the medical condition, the support of the treating doctor, and whether and to what extent the medical condition impacts one’s physical or psychological ability to perform the essential elements of one’s job.

For that main event, one must rise to the level akin to the professional athlete.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Fingerprints of an Ineffective Disability Retirement Presentation

Rushing through something is often a sign of attempting to make up for something lacking; if excellence is the goal, then one must take the time to cultivate the means of achieving it; if completion is the sole achieving end, then almost anything will satisfy such an undistinguished crown.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one can discern from the quality of the disability retirement packet the psychology behind the packet itself.  Much like fingerprints left behind by a burglar, or a work of art created by a craftsman or an amateur bumbler merely attempting to make a few extra dollars in one’s spare time, the collateral context of a presentation can be very indicative.

If such indicators manifest a negative vibration to an objective observer, what could it be stating to the OPM Representative who is reviewing the case?  Whether it is a Federal Disability Retirement packet which is sloppily put together; is presented with generalizations in offering a diagnosis or symptoms; is disconnected or barely coherent in its reasonings; or a multitude of other linguistic symptoms implying lack of attentiveness — these will not do.

Excellence should always be the goal; as the craftsman must take care at each stage of the creative process, so a Federal Disability Retirement packet must reveal the fullness of the medical condition, its impact upon one’s ability/inability to perform the essential elements of one’s Federal or Postal job, and why one has met all of the legal criteria in being entitled to the Federal Disability Retirement benefit.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Clarification of Options

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is often necessary to perform a methodological analysis similar to a “risk-benefits” evaluation before proceeding down the path in attempting to prove, by a preponderance of the evidence, that one is eligible for Federal Disability Retirement benefits.

The risks versus benefits analysis should already have been performed:  the necessity of filing because of one’s medical conditions should have answered any such issues arising from such a concern.  The “other” analytical approach, however, often revolves around the ever-prevalent and uniquely human ability to endlessly ruminate:  the “What if” syndrome.  What if I don’t get the disability retirement?  What if my agency terminates me before I get approved?  What if…

Such questions, while important to consider, should be first preceded by the overarching “what-if” question of all, which generally answers all subsequent similar questions:  “What if I don’t file?”  Presumably, one comes to a point in deciding to file for Federal Disability Retirement benefits because of a medical condition which has progressively or suddenly come to a point where it prevents one from performing one or more of the essential elements of one’s job.

Given that, the options to be clarified are quite simple:  If one does not file, then one will either have to continue working in the same or similar capacity; or one can resign and walk away, perhaps with a deferred retirement at age 65.  Are any of those options truly viable?  Ergo, many — if not all — of the other “what if” questions resolve themselves by first clarifying the penultimate what-if question.

Sequential clarification of one’s options is an important step in the reflective process of decision-making; take the time to consider the options; clarify the options; then, when the decision to prepare, formulate and file for Federal Disability Retirement benefitsbecomes a matter of necessity, move forward with the view that one will be approved precisely because the facts prove the case, without engaging in the self-defeating, very-human endeavor of self-doubt and questioning.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Technical Difficulties & the Problems of Life

Sometimes, regularity of activity is interrupted by what is generally deemed as “technical difficulties” and the common problems of life; and, indeed, for those who have noticed that the undersigned writer did not post a blog in the past couple of days, that is precisely what occurred — “technical glitches” which prevented the posting.

But that problems of life, including medical conditions which impact one’s ability or inability to perform all of the essential elements of one’s Federal or Postal job, should be as minor as everyday difficulties of life made interesting by mere technical glitches — that would be acceptable and tolerable.  But for the Federal or Postal employee who is suffering from medical conditions which are so serious that they begin to impede and interfere with the very ability to perform the essential elements of one’s career, job, and positional duties — that is when Federal Disability Retirement benefits should be considered.

Ultimately, preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is not a matter of choice, but one of necessity.  Unlike a technological glitch which presents a problem within a short, specified period of time; or a “life problem” which presents a difficulty where an individual must make some choices and decisions which, hopefully, would resolve such problems or at least lessen the reverberating impact of the difficulties — in contrast, a medical condition which prevents a Federal or Postal employee from performing one or more of the essential elements of one’s job, is a life-changing event, with immediate impact, future consequences, and an all-encompassing tidal wave of meaningful impingement upon one’s very being.

It is a life-changing decision; not just a technical glitch, but a road which must be taken.  In doing so, it is important to do it “right”.

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

OPM Disability Retirement: OWCP Doctors, and Others, Etc.

Can a doctor with whom one has been treating, but one which was obtained through the Federal Employees’ Compensation Act, Department of Labor (FECA/DOL), Office of Workers’ Compensation Program (OWCP), be an effective advocate for one’s Disability Retirement application?  Of course.

Often, however, there is a complaint that the “OWCP doctor” is not very responsive to a Federal or Postal employee’s attempt to approach the question of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.  As FERS & CSRS Disability Retirement is based upon proving by a preponderance of the evidence one’s medical inability to perform one or more of the essential elements of one’s job, it is crucial that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits have a supportive doctor.

While the Merit Systems Protection Board’s expanding case-law holdings continue to reinforce the idea that the most effective advocate in a Federal Disability Retirement case is a “treating doctor”, as such, medical reports obtained through 2nd opinion or “referee” consultations, or via filing for Social Security Disability benefits, may have some limitations on their usage; nevertheless, the weapons of arguing that an “independent” source of medical review also found that one could not perform one or more of the essential elements of one’s job, can be an effective substantive argument.

As for the OWCP-treating doctor, sometimes those forms completed by such a doctor will be enough to meet the eligibility requirements for OPM Disability Retirement — but that is an individual assessment based upon the uniqueness of each case.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Implicit v. Explicit

That which is not explicitly stated, may leave room for the listener to infer multiple meanings based upon the implicit statement of the speaker or writer.

Thus, in a Federal Disability Retirement application under FERS or CSRS, filed with and obtained through the U.S. Office of Personnel Management, it is important to state with explicit redundancy those elements which meet the legal criteria for eligibility for Federal Disability Retirement benefits.  X impacts positional element Y.  X may impact positional elements Y or Z.  X will surely prevent Mr. A from performing some of the essential elements of his job.  Of these three statements, which one states unequivocally and explicitly, while the other two allow for inferences which may well result in a denial from the Office of Personnel Management?  Obviously, the answer is the first statement, leaving the subsequent two room for inference and implication.

Remember that the Disability, Reconsideration and Appeals “Specialist” at the U.S. Office of Personnel Management is specifically targeting a Federal Disability Retirement application for any excuse to deny it.  The reviewer will selectively choose any cracks in the aggregate of the disability retirement packet, and where there is room for inference or implication, the language used will be interpreted in the light most favorable to the Office of Personnel Management, to issue a denial in a Federal Disability Retirement case.

Wherever and whenever possible, make explicit that which sounds implicit.  The crack of dawn is a time to get up and get things accomplished; a crack in the meaning and usage of language is merely an excuse for misuse and abuse.

Sincerely,

Robert R. McGill, Esquire