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

 

Medical Retirement Benefits for US Government Employees: Watchful Eyes

The falcon flies in our midst; with an unknown distance of its perimeter to prey, it suddenly appears, perched with watchful eyes for squirrels, rabbits, other birds, etc.  Its flight is silent and graceful, and long before people realize its presence, the silence and sudden muteness of wildlife activity reveals the fear imposed by its mere appearance.  It flies silently, swiftly, and with a grace which demands awe and respect.  From its high vantage point, the targeted prey below rarely stands a fair chance of avoidance.  Those eyes are focused, with a singular vision operating to corner, catch and consume.  Organisms under a microscope must feel a similar sense, if indeed they become aware of being studied and prodded.

People, too, who are being surveilled and inspected; there is often a sixth sense of being constantly and vigilantly watched.  Federal and Postal Workers who are under the onerous burden of a Performance Improvement Plan (the acronym of a “PIP”) have that same sense.  It is not a positive or productive feeling; it is, instead, a dread of knowing that the “watching” part is merely a prelude for further actions forthcoming, like the noiseless glide of the hawk above.

Being under the constant gaze of a predator often requires preventative action on the part of the prey; for Federal and Postal Workers who come to recognize that his or her job performance is deteriorating because of a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management may be the best option and course of action to take.  Because it is taking such a long time to get an approval these days, preparatory steps should be taken early.  Waiting for a separation from service, while still allowing for time thereafter to file, is normally not the wisest course.

As it is always better to be the “watcher” than the “watched”, so the Federal employee who needs to file for OPM Disability Retirement benefits should take the affirmative steps to prepare for an eventuality — that time when, like the hawk who has made a decision to target its prey, the Federal or Postal Worker has a place of refuge to enter.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Agency’s Actions

“That which the Federal Agency determines is tantamount to the hand of God — only more powerful.”  Or so it may often seem.  And so the Federal (and Postal) Worker will often wait with trepidation and anxious disturbances, caught in the limbo of a Federal bureaucracy, whether in issuing a leave-restriction letter, a warning, a formal PIP plan, a determination of being fit or unfit for duty, and multiple other actions which will adversely impact upon a Federal worker.

Preemptive actions rarely have any efficacy with a Federal Agency; an appeal to the U.S. Merit Systems Protection Board is often seen as a mere formality for the Board to render a decision in the agency’s favor, especially when it comes to agency actions concerning discipline and work; and an EEO complaint, while a tactic for forestalling ultimate decisions, is a burdensome and lengthy process of litigation.

Federal Disability Retirement is often the most advantageous of avenues to pursue, if only because the standard of proof to meet the eligibility criteria is quite low — not the high standard of Social Security Disability, where one must show a deleterious impact upon the daily living abilities, but the much lower standard of being unable to perform one or more of the essential elements of one’s job.

Proactive choices in life are often limited, especially when one is confronted with a seemingly omnipotent entity like a Federal Agency; but Federal Disability Retirement is an existent benefit which allows for the Federal or Postal employee to opt out and reach that rehabilitative period of seclusion, in order to regain one’s health and come back for another day, another fight, another round.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Characterization of Administrative Actions

Administrative actions are a peculiar thing; from the perspective of the Agency, it will take on a certain meaning; from the view of the Federal or Postal employee, the context and underlying basis often has an explanation which is unspoken.  For purposes of how to address an administrative action in the context of a Federal Disability Retirement application, the issue often comes down to whether or not it is worthwhile to preemptively address the particular action.

Some administrative actions or sanctions can be viewed as reinforcing the medical argument in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, inasmuch as a removal based upon one’s inability to maintain a regular work schedule would tend to show that, if there are concurrent medical documentation which shows that a Federal or Postal employee was determined to be disabled during the time of one’s inability to work, then the argument obviously is that the basis for the removal merely shows that one is eligible and entitled to Federal Disability Retirement benefits.

Then, there are other agency allegations which may imply that a Federal or Postal employee’s separation from Federal service was primarily based upon a non-medical basis, and that filing for Federal Disability Retirement benefits was merely an afterthought to try and game the system.

Ultimately, whether a Federal or Postal employee wants to fight or contest an Agency action is a legal matter, and is often a separate issue from Federal Disability Retirement; sometimes, however, they intersect, and the characteristic of the impact of such intersection often depends upon how one explains it.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The History of Agency Interaction

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, there is often a long history of interaction with one’s own agency, and to what extent such prior historical context is or is not relevant to a Federal Disability Retirement application depends upon the uniqueness of each case.

Some issues constitute an impact upon the Federal or Postal employee only — i.e., leave issues, whether FMLA has been invoked and how much has already been used; whether the Federal or Postal employee has been able to provide any substantiating medical documentation to the agency, etc.

Other issues are more in the province of the Agency — how patient will the agency be during the process of awaiting OPM’s decision on a Federal Disability Retirement application, whether under FERS or CSRS; has a PIP already been initiated?  Is there a security clearance issue, or an issue with retention of a medical clearance in order to perform one’s job?

Then, of course, there are issues which intersect, and where an adversarial — or at least a conflicting — relationship develops.  When the agency attempts to initiate an adverse action, or when harassment occurs, the issues which arise may need to be resolved through litigation, filing of a grievance, internal personnel procedures invoked, etc.

Ultimately, whether or not any of the various peripheral issues impact a Federal Disability Retirement application is questionable, because it is not the agency itself which determines the approval or denial of a Federal Disability Retirement application, but only the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP, EEOC, Grievances & the Comfort Zone

Medical conditions are often accompanied by the necessity to engage in certain forums, to initiate particular legal actions, and to file for alternative means of compensation.  Actions of necessity often come in bundles, and this is natural, as a single event can spawn multiple avenues of legal relief, and reflect various responses by the Federal Agency or the U.S. Postal Service.

Thus, a medical condition — whether work related or not — can result in Agency retaliation, persecution, adverse actions, subtle changes of attitudes, etc.

It is therefore not a surprise that a Federal or Postal employee who is filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, also has parallel actions which may include the wide spectrum of a simple Grievance, to an EEO Complaint; a concurrent OWCP/Department of Labor case (for an application of compensation based upon a medical condition or injury resulting from an on-the-job incident or on an occupational disease claim, etc.); a claim of hostile work environment, retaliation; assertion of the whistleblower provision, etc.

As an attorney who specializes in obtaining Federal disability retirement benefits for Federal and Postal employees, one observes the following:  there is often a mistaken belief that being involved in parallel or alternative routes of litigation somehow delays the need — whether practically speaking, or in terms of the 1-year Statute of Limitations — for filing of Federal Disability Retirement benefits from the Office of Personnel Management.

This mistaken belief often stems from a “comfort zone” that arises — whether because OWCP is paying on a regular and monthly basis, and so the financial concern is not presently and immediately existent; or because one is continually engaged in some form of contact with the Federal Government through alternative litigation, that the 1-year requirement to file for Federal Disability Retirement benefits is automatically delayed.  The Statute of Limitations is not a sympathetic statute.

A personal comfort zone is not a basis to delay what the law requires.  Immediacy of an event should not be the basis of whether to file for a claim or not.  Planning for the future is the important basis to act, and preparing, formulating and filing for Federal Disability Retirement benefits is something which every Federal or Postal employee should be considering concurrently with all other forums and avenues of compensation.  A man can do more than one thing at a time, and preparing, formulating and filing for Federal Disability Retirement benefits should be one of those multiple issues to be embraced.

Don’t let a present comfort zone deny you the right of a secured future.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: When Should the Agency Be Informed?

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the question is often asked whether and when an Agency should be informed of the impending Federal Disability Retirement application.

Such a question & answer is almost always a discretionary one, and there is not a “right” answer — only one which can result from the tailored responses of specific and individual circumstances.  For, on the one hand, the Agency will often already suspect that filing for Federal Disability Retirement benefits, and therefore the automatic loss of the applicant/employee, is an inevitable future certainty, and therefore such notification is merely a formality.

The Agency is often anxious to have the backlog of work created by the employee’s non-attendance or sporadic attendance resulting from the chronic medical conditions, to be abated at some point, and therefore hiring a replacement is something which the Agency wants accomplished as soon as possible — and one might argue that informing the Agency is the “right thing” to do.

But in representing a Federal or Postal employee in a Federal Disability Retirement case, the “right thing” always is looking after the best interests of the client, and informing the agency prior to filing is not always in the best interests of the client.  For, on the other hand, informing the Agency too soon will often result in unintended consequences — of reactions and initiated actions upon being informed of the very intention of filing for Federal Disability Retirement benefits.

While unfortunate and even perhaps “retaliatory” in nature, Agencies often act/react only upon official notification of an intention.  In other words, the proverbial “elephant in the room” is only noticed when the elephant actually stomps its feet (or is it “hooves”?).  Whether and when is a discretionary decision by the Federal or Postal employee.

Ultimately, of course, when the Federal Disability Retirement application is filed through the Agency for further processing before being forwarded to the Office of Personnel Management, the Agency will be fully informed.  But as to “pre-informing” the Agency — that all depends upon the individual circumstances of the Federal or Postal employee, taking into account first and foremost the best interests of the client when represented by an OPM Disability Retirement attorney.

Sincerely,

Robert R. McGill, Esquire

 

Federal and Postal Disability Retirement: Agency Actions & OPM

The argument in a Federal Disability Retirement application under FERS or CSRS goes as follows:  An Agency has determined that a Federal or Postal employee is medically unable to perform one or more of the essential elements of one’s job; that Federal or Postal employee cannot be accommodated; the case-law states that, at a minimum, the agency conclusions have a persuasive effect upon a Federal Disability Retirement application; ergo, the Office of Personnel Management should approve the Federal or Postal employee’s Federal Disability Retirement application under either FERS or CSRS.

The problem with such an argument, if relied upon exclusively, is threefold:  (1)  The statutory mandate as to which agency makes a determination upon a Federal Disability Retirement application under FERS or CSRS is misplaced, (2) The Agency, whether the Flight Surgeon at the FAA who determines that an Air Traffic Controller is medically unqualified to continue in his or her job, or the Postal Service who determines pursuant to the National Reassessment Process (NRP) that there is no longer a job available at the Postal Service, or any other agency which determines that no accommodations can be provided — has not applied all of the legal criteria under the laws and statutes governing Federal Disability Retirement applications, and (3) the focus from the perspective of the agency is a “second-tier” focus — of whether an accommodation can be provided to the Federal or Postal employee to see if the efficiency of the Agency can continue, as opposed to the “first-tier” issue of whether the Federal or Postal employee has a medical condition such that it satisfies all of the criteria for a Federal Disability Retirement application.  

As such, it is the focus of the respective agencies which differentiate the possibility of an agency action being merely persuasive, as opposed to determinative, in a Federal Disability Retirement applicationunder either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Agency Actions Are Merely Persuasive

Whether it is one’s own agency which acts, or some third-party agency, the effect of such actions upon a Federal Disability Retirement application under FERS or CSRS is merely persuasive, and not determinative, from the viewpoint of the Office of Personnel Management, whether under FERS or CSRS.

Such actions may include:  Disqualification based upon a medical condition, whether because of the primary, underlying medical condition, or a secondary condition resulting from a prescription medication; determination by the Agency based upon a fitness for duty review; failure to pass certain physical fitness standards; declarative statement by the Agency that no accommodations can be accorded, whether because of one’s medical condition or other influencing factors; a conclusion reached by an Occupational Nurse or doctor; acceptance of a case by OWCP, Department of Labor; approval by the Social Security Administration, the Veterans Administration, etc. — all of these “third party” determinations can be persuasive for a Federal Disability Retirement application, but are not necessarily determinative in coming to a conclusion of approval by the Office of Personnel Management.

Why “persuasive” as opposed to “determinative”?  Because of two fundamental reasons:  (1)  The Office of Personnel Management is an independent agency, mandated by statute, regulation and case-laws, to make its own determination of eligibility of each Federal Disability Retirement application, separate and apart from any other agency, and (2) such agencies which make such determinations are not medical facilities (although a doctor or nurse may have some involvement in the decision-making process), and this is ultimately a “medical” disability retirement, and not an agency retirement system mandated by law.

As such, one must still prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits, based upon the nexus between one’s medical conditions and one’s essential elements of the Federal or Postal job.

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