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

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

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

 

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