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

Federal and Postal Disability Retirement: The Lost Cause

For a lawyer, it is indeed the “lost cause” which is the most challenging of cases.  This is no less true in Federal Disability Retirement cases for Federal and Postal Employees under FERS & CSRS.  In fact, in some instances it is all-the-more-true, because there is necessarily involved a physical or psychiatric medical condition which makes the case all the more worthwhile in fighting for. 

The concept of the “lost cause” is evocative of the famous scene from Frank Capra’s classic movie, Mr. Smith Goes to Washington, of course; and no lawyer, no matter how good, should be so arrogant as to think that he or she meets with the standard of what Jimmy Stewart was fighting for.  For one thing, lawyers get paid for what they do.  Yet, it is indeed the “lost cause” cases which often spur the attorney in any area of law, with eagerness and pride. 

Whether to obtain Federal Disability retirement benefits for an individual who was wrongfully terminated for extraneous reasons; proving to the Judge that, despite post-termination medical documentation, one can and should logically extrapolate that the medical conditions existed prior to separation from Federal Service; to persuade the Office of Personnel Management that the Agency knew, or should have known, of the medical condition, and should have terminated the individual for his or her medical inability to perform one or more of the essential elements of one’s job, as opposed to the manner in which the Agency went forth; these are all microcosmic examples of “lost causes”; and it is indeed the lost cause which is the most challenging of cases for an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Termination

Termination by a Federal Agency or the Postal Service can be a trying time, even if it has been a long time in expectancy.  The key is to try and begin negotiating with the agency even before the Notice of proposed termination is issued.  During that period when you know that the Agency is considering filing a Notice of Proposed Termination, is precisely the window of opportunity to try and convince & persuade the agency that the underlying basis of any proposed termination is and should be based upon your medical inability to perform one or more of the essential elements of your job.  This would be done through various means:  submission of medical documentation to your supervisor, agency & Human Resources personnel; addressing key points concerning conduct or performance with medical evidence showing a direct and causal correlation between such conduct or performance with the medical evidence, etc.  If, on the other hand, a Notice of Proposed Termination is issued but one which is not based upon one’s medical condition, that does not mean that the window of opportunity has been lost — it just may mean that the strategy and tactic to try and persuade the Agency to amend the proposed termination may have to be adapted.  The key to all of this is to make sure and aggressively attack, rebut, and answer, at all stages of any proposed termination, in order to gain an advantage for one’s medical disability retirement.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: the Bruner Presumption – Agency Actions II

One must never misunderstand the law and its application.  This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences:  the failure to secure disability retirement benefits and, therefore, the financial security for one’s future.  The “Bruner Presumption” is one such application of law which is often misunderstood.  Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong.  The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job.  With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant.  One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort.  This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force).  Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Actions I

Can adverse agency actions to terminate a Federal employee impact a potential disability retirement application?  The short answer is “yes”, but the longer answer would have to consider multiple factors:  what is the underlying basis of the adverse action?  Does a person’s medical conditions (often psychiatric, cognitive dysfunctions impacting upon less than stellar performance ratings, or perhaps impacting upon the essential elements of one’s job in other ways) explain, in whole or in part, the “adverse” nature of the action?  Has there been a “paper trail” established with respect to informing the Agency of medical conditions, such that it can “explain” — again, in whole or in part — the apparent basis of the adverse action?  Is the Agency open to negotiating a material change in the proposed removal — i.e., from one which is adversarial (and therefore would be appealed to the Merit Systems Protection Board) to one based upon one’s medical inability to perform the essential elements of one’s job (with a stipulation that no appeal will be filed, thereby saving the Agency’s time, resource, and personnel).  It is important to “get involved” in the process of any contemplated Agency action — early.  If the Agency puts an employee on a Performance Improvement Plan (PIP), it is time — in fact, overdue — to become active in the future plans for filing a disability retirement application.

Sincerely,

Robert R. McGill, Esquire