FERS & CSRS Disability Retirement for Federal and USPS Workers: Overlooking an Essential Element

Potential applicants who are considering filing for Federal Disability Retirement benefits under FERS or CSRS will sometimes ask the question, What are the essential elements of one’s job?

Sometimes, the answer to the question is often easy to identify, especially if there are unique and distinct features to a particular type of Federal or Postal job.  Other elements are sometimes so obvious that they are overlooked — such as the fact that one must be able to work full time at a job.

Thus, the fact that a Federal or Postal worker is able to work 4 hours a day, or 6 hours a day, and be able to perform all of the other essential elements of his or her job, does not preclude one from being eligible for Federal Disability Retirement benefits under FERS or CSRS.

Further, if the Agency is being “nice” and “accommodating” by allowing for the remainder of the hours to be covered by sick leave or even LWOP, does not preclude the Federal or Postal employee from filing for, and being eligible for, Federal Disability Retirement benefits under FERS or CSRS.

Being able to work full time in a full time position is an essential element of the job.  Don’t overlook the obvious; the obvious is often the gateway to success.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement for Federal and USPS Workers: Which Medical Conditions to List II

If you list all of the medical conditions you suffer from on the Applicant’s Statement of Disability (SF 3112A) in filing an application for Federal Disability Retirement benefits under FERS or CSRS, then you take the risk that the Office of Personnel Management may approve your disability retirement application based upon a condition which is only marginally serious (which can lead to some future problems, if OPM requests that you respond to an OPM Medical Questionnaire, inquiring about your current status and your disability).  On the other hand, if you fail to mention a medical condition, and you file your Federal Disability Retirement application, once you are assigned a CSA Number, you are precluded from amending or adding to the list of medical conditions described in your Applicant’s Statement of Disability.  Thus, discretionary decisions must be made.  You must strike a proper balance between listing the major medical conditions, and deciding which medical conditions truly impact your ability/inability to perform the essential elements of your job, and discern which conditions and symptoms are likely to remain chronic, or continue to deteriorate.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: RIF

If a person is separated from Federal Service pursuant to a Reduction-in-Force, can he file an application for Federal Disability Retirement benefits under FERS or CSRS?  As with all such questions, “It Depends”.  If a person has a medical disability prior to the separation from service, and the doctor will state that prior to the separation, the Federal or Postal employee could no longer perform one or more of the essential elements of the job, then the answer is that he has a Federal Disability Retirement case.  Whether from a RIF or for some other reasons is ultimately irrelevant; the point is that one must ultimately show that prior to separation from Federal Service — any type of separation — the connection between the medical condition and the type of job one has, must be made.  Remember, further, that during the time of Federal Employment, if a person was receiving OWCP partial disability payments for an hour, two hours, three hours, per week or per day, that is further evidence that the Federal or Postal employee was unable to perform all of the essential elements of one’s job.  For, as with any full-time Federal sector job, being able to work 8 hours per day, 5 days per week, is part of the essential element of such a job.

Sincerely,

Robert R. McGill, Esquire

OWCP & OPM Future Reviews

There are horror stories:  of people on “disability” who are watched and video-taped, and after having 500 hours of taping, it is edited to show that, within a 2-minute period, it is revealed that you can indeed perform physical feats which your medical disability should restrict.

As an attorney who receives daily inquiries concerning Federal Disability Retirement benefits under FERS & CSRS, people relate such fears to me.  However, I am quick to remind such callers on two (2) matters:  First, such stories relate almost exclusively to Federal OWCP cases, which have nothing to do with Federal Disability Retirement under FERS or CSRS, and Second, the people I represent have legitimate medical conditions which impact and prevent one from performing one or more of the essential elements of one’s job.

There is also an additional Third element in the issue, Federal Disability Retirement annuitants are allowed, under the law, to go out and get another job, and to work and make up to 80% of what his or her former position currently pays.

Now, obviously, any such job should be essentially different, in many ways, from the former job.  But the point is that the medical disability under FERS or CSRS is intimately wedded to a particular job, and the inability to perform the essential elements of that particular job.  That is where the difference lies between Federal Disability Retirement rules under FERS & CSRS and OWCP cases — the former allows one to continue to remain productive in the workplace; the other does not.

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: Applicant’s Statement & Essential Elements

When an applicant for FERS & CSRS Federal Disability Retirement benefits begins to craft his or her Applicant’s Statement of Disability, certain foundational questions must be considered before composing the historical, emotional, substantive and impact-descriptive narrative.  For instance, to the legal criteria, To be eligible for Federal Disability Retirement Benefits, one must show that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job — the initial and most foundational question obviously is:  What are the “essential elements” of one’s job? 

Now, that may seem like a simple — even simplistic — question.  One needs only to look at the official position description and pick out the major factors of the position.  If only it were that easy.  For, there are many “implicit” essential elements which are not explicitly stated, and it is often those unspoken, “un – described” elements, which are directly impacted by one’s medical conditions and disabilities, which must be creatively woven into the narrative of one’s disability statement.  Always remember to take care of the “foundational” issues first; thereafter, the narrative can extrapolate from the major factors of the position description.

Sincerely,

Robert R. McGill, Esquire