Federal Worker Disability Retirement: Recesses and Misguided Perspectives

Plato’s recognition of how perceptual fallacies occur became an incentive for his philosophical quest to unravel the essence of a thing, in contrast to the accidental qualities which may present themselves in their visual appearance. But misjudgments concerning what a thing “is” can occur not just because of visual disturbances; they can also result from subconscious misconceptions working in the far recesses of the mind, through isolation and fear.

Such an addition to the general philosophical inquiry would not progress until many centuries later, with the advent of Freud, Jung, psychology, and the recognition of the complexity of the human condition.  Indeed, the turmoil of human beings, especially in their interaction with relational issues, compounded in the workplace, the stresses of finance and the inability to make self-preserving decisions, often results from isolation and lack of proper guidance.  Guidance is part of the key to a release from worry, anxiety and effective decision-making.

For Federal or Postal employees who suffer from a compendium of complex medical conditions, including physical pain, psychiatric devastation from Major Depression, anxiety, panic attacks, PTSD; from profound exhaustion and fatigue; the medical condition itself may prevent one from tapping into the far recesses of one’s psyche in order to come to a proper decision on matters of great importance.

Federal Disability Retirement is an option which allows for the Federal or Postal employee to reach a point of restorative quietude away from the requirements of employment burdens, in order to seek the medical help necessary.  It does not require a standard of “total disability”, but merely one of proving that the Federal or Postal employee can no longer perform one or more of the essential elements of one’s job.  It must be submitted to the U.S. Office of Personnel Management, and thus is not a determination made by one’s own agency.

Isolation, fear, and the dangers of misguided perspectives which arise from the dark recesses of one’s mind — they must be counteracted by having a clarity of purpose, direction, and goals which provide for a brighter tomorrow.  If the rise of psychology does not accomplish this, then what good does it portend?

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

Medical Retirement Benefits for US Government Employees: Preexisting Conditions

In OWCP/Department of Labor cases, often the focal point of contention (among other issues) involves whether or not a medical condition “pre-existed” the on-the-job injury which is the basis of the claim for compensation.  

In a FERS or CSRS Federal Disability Retirement application, such an issue is usually irrelevant, precisely because the laws governing Federal Disability Retirement is unconcerned with the “where” of a medical condition, as in, “Where did the event take place, which resulted in the medical injury or condition — on the job or not?”  However, the term “preexisting condition” can involve a different conceptual paradigm, encapsulating not the situs of the occurrence, but whether the Federal or Postal employee was hired with the medical condition, and thus was able to accomplish and perform the essential elements of one’s job despite having the medical condition.  

The Office of Personnel Management will sometimes argue this point — that the Federal or Postal employee who has filed for Federal Disability Retirement benefits under FERS or CSRS has a “preexisting condition”; but such an argument actually goes to the issue NOT of whether or not such a preexisting condition is a basis for a denial (it is not), but rather, as to why a Federal or Postal employee would be eligible with such a preexisting condition since that Federal or Postal employee was able to successfully perform his or her job for many years even with the medical condition upon which the Federal Disability Retirement application is based upon.  

Thus, the question in such an instance is not really a preexisting medical condition issue; rather, it is an issue about exacerbation and whether such a preexisting medical condition has progressively worsened to impact one’s ability/inability to perform one or more of the essential elements of one’s job.  How one formulates the issue is very important; OPM does not necessarily understand the proper formulation of a legal issue; as such, it is often the job of the applicant for Federal Disability Retirement benefits to re-formulate the issue in its proper context.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: SSDI Impact

In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS individuals are exempted for this particular issue), the Federal or Postal employee who is contemplating filing for the benefit must at some point in the process file for Social Security Disability benefits (SSDI).  This is because the law is set up for an off-setting feature between the two “pockets” of benefits — where, in the first year, there is a 100% offset between FERS & SSDI, and a 60% offset every year thereafter.  

In some rare instances, Social Security will approve a person’s disability application before the Office of Personnel Management has approved a FERS Disability Retirement application.  In that instance, one can use the SSDI approval as “persuasive” evidence to the Office of Personnel Management.  It is not determinative evidence, but there are legal arguments to be made which essentially state that, since a person has been found to be “totally disabled” by the Social Security Administration, based upon the same or identical medical evidence and documentation, that the Office of Personnel Management should grant a FERS Disability Retirement application based upon the same or identical medical evidence.  

Is the reverse true?  If a FERS Disability Retirement application is approved, can such an approval be used as evidence — persuasive or determinative — for an SSDI application?  That would be a weaker argument, precisely because OPM Disability Retirement does not make a determination of total disability, but rather, a decision that the Federal or Postal employee cannot perform one or more of the essential elements of one’s particular kind of job.  Moreover, the Social Security Administration might also argue that inasmuch as SSDI does allow for some earned income (about $1,000 per month) from a job, such allowance shows that approval of a FERS Disability Retirement, which recognizes that one is merely disabled from performing one or more of the essential elements of one’s particular kind of job, should not be determinative of a Social Security criteria which requires a higher standard of disability.

Knowing what impact each aspect or element of a process will have upon another is an important step in preparing, formulating and filing a Federal Disability Retirement application. As knowledge is the source of success, utilization of such knowledge is the pathway to an approval in a Federal Disability Retirement application under FERS and CSRS.

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

Medical Retirement for Federal Workers: Agency Independence

Each agency is tooled with a statutory mandate as to its mission and purpose, and from the origination of the statutory mandate, Federal Regulations and policies are formulated.  The independence of each agency within the Federal Government results in the anomaly of a patchwork of Federal Agencies, few of which are coordinated in their efforts or purposes.  

Conceptually, this is thought to be a good idea — precisely because by preserving the independence of each agency, it can singularly focus upon the mandated purpose and goal — and better accomplish its “mission”.  But the flip-side to the positive consequences of such conceptual formulation is that there is often an overlap between missions, and where the logical result of one action should almost automatically (logically) result in another, such is not the case because of the wall of separation between agencies, preserving their independence from each other.  

In Federal Disability Retirement issues, one would think that where a stricter standard of eligibility is imposed in one agency (e.g., the Social Security Administration for disability determinations), an approval based upon that stricter standard should automatically result in an approval by the Office of Personnel Management for purposes of evaluating and deciding upon a Federal Disability Retirement application under FERS or CSRS.  

Such is not the case, however.  

Hypothetically, it is possible to conceptualize a case where a Federal or Postal employee is deemed “totally disabled” by a doctor, but still be able to perform all of the essential elements of one’s Federal or Postal job.  Conversely, it is possible to think of a case where an individual is no longer able to perform one or more of the essential elements of one’s job (FERS or CSRS Disability Retirement) and yet not be considered “totally disabled” (SSDI).  The latter, of course, happens all the time; the former continues to occur — although, to actually come up with a true case involves mental gymnastics which exists only in the world of myths and language-games.

Sincerely,

Robert R. McGill, Esquire