OPM FERS/CSRS Disability Retirement: Until Sickness, Death or Getting Fat

It was once that marriage vows were viewed as sacrosanct; inviolable promises made, endured through hardship, bilaterally seen as a partnership made in heaven.

Then, of course, “no fault” divorces became the fashion; fashion itself (or lack thereof) was a grounds for de-coupling or un-coupling (it is difficult to keep up with the modern vernacular and introduction of new-age language); and so people began to “drift apart” and expunge from such eternal vows undesirable concepts such as “death” or “sickness” (for, as marriage ceremonies are supposed to be “happy” occasions, why insert such negative vibes into the mix?), but implicitly left in the ultimate ground and justification: getting fat (or old, or ugly).

A parallel approach is often taken in the employment arena: your loyalty is expected, but if you fail to produce, you can be terminated.  Whether such pervasive attitudes become commonplace because of the “throw-away” nature of goods purchased and items sold in the universe of commerce, is for social anthropologists to debate; the fact is, the issue can be viewed from both sides: from the employer’s perspective, too many employees jump ship soon after being trained and invested, seeking other opportunities and offers.

But that leaves us in the state of our being and choosing: both in family life and in careers, the fickle and unsteady nature of either reflects the very society in which we participate.

Businesses are rarely run like families — or, perhaps a truer statement these days is that, yes, they are run exactly like families, and quick divorces for the most spurious of reasons are sought and attained.  For the Federal and Postal Worker who finds him/herself with a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, there is a price to pay for being a part of such a fickle system.

Federal employment is merely a microcosm of the greater system of employment encompassing Federal, State and private-sector economies; loyalty is no more precious in one sector than another.

From the Federal or Postal employee’s perspective, Federal Disability Retirement benefits must be an option which should be considered when a medical condition begins to impact one’s ability to perform all of the essential elements of one’s job.  From the Federal agency’s perspective, Federal Disability Retirement should be viewed as part of the larger promise of Federal employment benefits contractually offered, and when one partakes of accessing the promise, there should not be any grumbling, complaining, or retribution and retaliatory measures invoked.

But somehow, reality rarely follows the path of rationality.  As such, just as in messy divorces and other venues of uncoupling, one should always be cautious in whom to confide in, what to say, and when to reveal.  Federal Disability Retirement is a benefit accorded to all Federal and Postal employees, whether the Federal or Postal employee is under FERS or CSRS, and is sought and obtained through the U.S. Office of Personnel Management.

While not as sacrosanct as marriage vows of yore, it is also not as fickle or easy to get because one has gained a little weight over the years. As such, any such attempt to file for OPM Disability Retirement benefits should be taken seriously and with deliberate care; sort of like what one should do before heading off to Las Vegas for a quick coupling, or uncoupling, whichever the case may be.

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 FERS or CSRS.  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 Federal Disability Retirement case under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The 1-Year Rule

Periodically, I remind everyone of the various “1-year” rules which govern Federal Disability Retirement issues under FERS & CSRS.  Since there are multiple applications of the 1-year rule, there is often a confusion which is still prevalent and ongoing.  Thus, here are some clarifications:  You must file for Federal Disability Retirement benefits under FERS or CSRS either while in the employment of a Federal Agency or the U.S. Postal Service, or within 1-year of being separated from Federal Service

There are a couple of exceptions to this 1-year rule:  If you are found to be incompetent, you may be able to get a waiver from the Office of Personnel Management, but this is extremely rare and difficult to obtain.  Another exception, however, is found in the U.S. Court of Appeals case of Johnston v. OPM, where the Court found that if a person was removed for apparent medical reasons, but was never notified by the Agency, then the 1-year rule may be waived (this often happens to Federal and Postal employees who have been on OWCP for many years, and are forgotten and never informed of an initiation of an SF 50 separating him or her from Federal or Postal Service). 

The 1-year rule should not be confused with:  One’s medical condition needs to last for a minimum of 1 year (but this does not mean that you need to wait a year before filing for Federal Disability Retirement benefits; rather, it merely means that your doctor expects that your medical condition will last for a minimum of 12 months).  I hope that this clarfies any confusions, and further, that it serves as a reminder to anyone who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Attorney

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

OPM Disability Retirement: After Separation from Service (Part 2)

Of course, it is always the separation from service based upon reasons delineated other than medically-based reasons which give rise to concerns in a federal disability retirement case.  Understand, however, that the “Bruner Presumption” is essentially a “scale-tipper” for the Office of Personnel Management (supposedly) and for the Administrative Judge at the Merit Systems Protection Board (of somewhat greater certainty).  By this, I mean merely that, with or without the Bruner Presumption, a Federal Disability Retirement applicant under FERS or CSRS must still prove by a preponderance of the evidence that he or she is eligible and entitled to federal disability retirement benefits. “Preponderance of the evidence” is essentially proof such that it is “more likely the case than not”.  Thus, when all things are equal, the Bruner Presumption is supposed to tip the scale in favor of the federal disability retirement applicant. 

On the other hand, if an individual was removed for reasons other than medically-based reasons — i.e., as a hypothetical, let’s say he was removed “for cause” — an act of dishonesty; failure to follow certain agency procedures; or whatever the case may be.  Does such a removal tip the scale the other way?  Not necessarily; however, it makes gathering the proper medical evidence that much more important, and what I often do is to try and tie in the underlying behavior which resulted in the removal “for cause”, with the medical basis — if at all possible.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: After Separation from Service

It should be well established for anyone who has looked into Federal Disability Retirement issues, that a person has one (1) year from the time of separation from Federal Service to file for Federal Disability retirement benefits.  Separation from Federal Service can take many different forms:  Resignation; separation for cause; administrative separation based upon one’s medical inability to perform one or more of the essential elements of one’s job; etc.  The latter of these delineated forms (separation for medical inability to perform) is obviously the most beneficial to one contemplating filing for Federal Disability Retirement (first and foremost because it allows for the Bruner Presumption to be applied). 

On the other hand, separation based upon a resignation is often neutral for issues concerning disability retirement (unless, of course, one has been foolish to put into his or her letter of resignation that the reason for the resignation is to go and become a professional poker player for the next year — but even then, if a medical condition existed prior to resignation, one might still be eligible for disability retirement benefits under FERS or CSRS); and, obviously, if the resignation was accompanied by a medical reason, and that particular medical reason was reflected in the SF 50, all the better.  Even separation for adverse actions — if there was a medical condition which existed prior to separation — can be explained away and fought for.  The point here is, regardless of the nature, reason and expressed rationale for separation from service, if a medical condition existed prior to separation from service, such that the medical condition prevented one from performing one or more of the essential elements of one’s job, there is a viable basis for filing for, and fighting for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire