Disability Retirement for Federal Workers: Annotating the Record

It is always important, in contemplating a Federal Disability Retirement application either under FERS or CSRS, to annotate the record where possible.  Remember that the Merit Systems Protection Board has previously found that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM , 109 MSPR 529 (2008).

As such, in preparing a Federal Disability Retirement application, a successful outcome may depend upon a “war of memorandums” between the applicant and the Agency.  If the Agency is attempting to remove a Federal or Postal employee based upon “performance” or “conduct” issues, without regard to any medical evidence submitted to the agency, and thereby attempting to characterize the absences, the lack of productivity, warnings and suspensions as mere intransigence and insubordination, then it is important to annotate the record and memorialize the contacts, the submissions, etc., by writing confirming emails, letters, memorandums, etc., where the agency was informed about the medical conditions, which medical documents were submitted, to whom they were submitted, and even the content (perhaps in summary form) of what the doctor has stated.  The only way to remove a shadow of a doubt is by allowing the sunlight in (sorry for the trite analogy/metaphor).

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