Federal Disability Retirement: Bipolar Disorder

Bipolar Disorder is classically characterized by extreme and unpredictable mood swings between depression and manic episodes, and such alternating swings of highs and lows impact upon one’s judgment, perception, orientation, and ability to maintain a rational perspective.  This psychiatric medical condition, with its symptoms of lethargy, racing thoughts, delusional thought processes leading to long periods of excitability, alternating with unrelenting and intractable depressive moods, impacts many different kinds of duties and daily living activities.  It can impact physically-intensive job duties, and not just cognitive-intensive core elements of one’s job. 

For Federal and Postal employees who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to understand the psychiatric medical condition; whether a medication regimen returns one to a sufficient level of functional sufficiency such that one can continue to perform all of the essential elements of one’s job; and, if not, then how best to prepare, formulate, construct and complete a Federal Disability Retirement application under either FERS or CSRS.  What is often known as OPM Disability Retirement is a benefit which must be fought for, in order to secure one’s future ability to receive an income — perhaps to reach that level of functionality that one may return to the labor force despite the medical condition.

Sincerely, Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The “Almost” Medical Inability to Perform Termination

Often, Agencies will proceed to propose a removal of a Federal or Postal employee based upon reasons which clearly “imply” one’s medical inability to perform one or more of the essential functions of one’s job, but explicitly, based upon other stated reasons — e.g., “Failure to Maintain a regular work schedule” or “Being Absent Without Official Leave (AWOL)“.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state:  “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under CSRS or FERS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application.  For, that is the ultimate goal:  to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Sincerely,

Robert R. McGill, Esquire

 

Disability Retirement for U.S. Federal Government Employees: Context, Sequence & Connections

Often, a potential applicant for Federal Disability Retirement will insist that the origin of the medical condition or injury is important to annotate, for one reason or another.  Unlike OWCP issues, origin and causation is usually of little or no significance in a Federal Disability Retirement application, whether under FERS or CSRS.  Thus, for OWCP Disability, it may be of importance to show that X injury was caused by occupational hazard Y; or that, while on the job on a certain date, the applicant slipped and fell, etc.  In proving OWCP Disability, such “incident-specific” facts are important in establishing causation, in order to determine eligibility and entitlement to OWCP Disability benefits.

For purposes of OPM Disability, however, the Federal or Postal worker who is seeking Federal Disability Retirement benefits from the Office of Personnel Management, does not have to establish such incident-specific facts.  Rather, the focus shifts upon the medical condition, the symptoms, and the impact upon those medical medical conditions and symptoms upon one’s inability to perform one or more of the essential elements of one’s job, within the last year.  While it may be that some factual context is significant by way of showing a sequence of events from the past, in order to show how the medical condition worsened over time, OPM normally does not care about such historical facts.  While the history of X is interesting, what occurs in the recent-to-present timeframe is what interests OPM.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Priority and Importance

In preparing a Federal Disability Retirement application under FERS or CSRS, it is important to always distinguish between two conceptual paradigms:  priority of an issue, and the importance of an issue.

While gathering the proper evidence and substantiating medical documentation is of importance, it should not be the priority.  The priority — that which should precede another — should be to take care of the medical condition itself (i.e., to get the proper treatment modalities, to undergo the necessary diagnostic tests, to follow the treatment regimen of the doctor, etc.).

At some point, of course, the question will arise:  Is it time to consider filing for Federal Disability Retirement under FERS or CSRS?  Can I continue to work at my job?  Is my job performance suffering?  At that critical juncture, then the issue of importance may arise.  While priority has to do with that which is first in a series of issues, the concept of “importance” can entail multiple issues all at once.

Once the question of “whether” is answered in the affirmative, then one must begin to approach the doctor for his or her support; to begin to annotate how the medical condition is impacting one’s ability/inability to perform the essential elements of one’s job, etc.  All throughout, of course, the priority of getting the proper medical care is paramount.  Everything else is secondary, but other things can concurrently be of importance.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: The Job Description

Remember that the official Job Description may provide an antiseptic-like delineation of the major functions of a particular position.  From that, one may infer, imply and extract the daily physical and cognitive requirements in order to efficiently perform those major functions.

However, in filing a Federal Disability Retirement application under FERS or CSRS, one must remember that it is never a wise endeavor to think that the Office of Personnel Management will infer, imply or extract anything, leaving aside making the logical connection between a Job Description and the physical, emotional and cognitive requirements to implement the job requirements.

As such, in formulating the impact between one’s medical conditions and the essential elements of one’s job, it is encumbent upon the applicant who is filing for Federal Disability Retirement benefits to make explicit that which is implicit; to reveal that which may be contained “between the lines”; and to make sure that, instead of infering, implying or extracting, that the daily physical, emotional and cognitive requirements are boldly revealed.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Decision-Making

It is interesting how individuals make decisions, especially on important matters.  In coming to a decision to file for Federal Disability Retirement benefits under FERS or CSRS, the process itself is often an admixture of rational lists, emotional reactions, and a keen sense of realization.  While we often like to think that the “decision-making process” involves a reasoned, deliberative methodology of thought-processes, the reality of it is that most decisions are made more upon a reliance on instinctive feelings.  There is actually nothing wrong with that.  When an individual is suffering from one or more medical conditions, and those conditions are clearly impacting one’s ability to perform the essential elements of one’s job, it is often the rationalization which impedes the necessary decision to file for Federal Disability Retirement benefits.  Thus, economic and other reasons come into play, which often prolong the gut-instinct of the need to file.  This tension — between what the body is telling one, and what the mind is attempting to prevent — is a natural part of the entire process.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: OPM’s Methodology II

When the Office of Personnel Management approves an OPM disability retirement application, as I stated in the previous article (OPM’s Methodology), they will normally choose to approve it based upon only one of the listed disabilities. This is because, from OPM’s viewpoint, if the applicant lists multiple medical disabilities, once OPM reaches any one of the listed disabilities and finds that one of them is a basis for an approval, there is no further need for OPM to review the remaining medical conditions.

This methodology requires that future applicants consider the consequences of such a method: it is essential that the applicant base a disability retirement application upon only essential, significant medical conditions, normally best to list them in the order of significance, and further, to document a case in the order of severity.

While I have not heard of a disability retirement application being approved based upon a non-essential, minor medical condition, it is wise not to rely upon the off-chance that OPM might base an approval upon a medical condition that is somewhat “thrown in” as an afterthought, into the applicant’s statement of disability. In other words, it is not a good idea to “throw in the kitchen sink” at the last moment, thinking that by multiplying the quantity of medical conditions listed, that OPM will see how “serious” one’s medical condition is. Remember, it is not the totality of many medical conditions that is important; rather, it is the list, however small, of those medical conditions that prevent one from performing one or more of the essential elements of one’s job.

Sincerely,
Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

Physician’s Statement, SF 3112C, for FERS & CSRS Disability Retirement

Instead of signing the SF 3112C (Physician’s Statement), in representing my clients to obtain disability retirement, I write a 4 – 5 page letter directly to the client’s treating physicians to obtain a current medical report. Generally speaking, I advise my clients not to sign the SF 3112C, because it is essentially a general release of medical information which releases any and all medical records to the Agency’s Human Resources designee.

There is no reason to release all of your medical information — especially such information which is private, which is irrelevant to the medical disabilities which are specifically described and identified as the basis of your disability retirement application in your applicant’s statement of disability, and which do not impact your ability or inability to perform you job. Indeed, while the Agency will often insist upon the signature of the 3112C as being “required”, this is simply not true: Look at SF 3112E(8)(d) (Disability Retirement Application Checklist), which states: “SF 3112C, Physician’s Statement (or equivalent).” This shows that signature of the SF 3112C is not required — if you go out and obtain the medical records and reports yourself, and file the supporting medical documentation, then such documentation constitutes its “equivalent”.

It is my job, in representing a client to obtain disability retirement benefits, to prove by a preponderance of the evidence that my client is entitled to disability retirement benefits. It is not my job to release and and all private medical documentation to the Office of Personnel Management — only such documentation as will prove my case. As such, it is important to know what is required, and what is not.

Sincerely, Robert R. McGill, Attorney specializing in disability retirement cases for Federal and Postal employees

The Bruner Presumption

Just some comments about this important concept and one which all disability retirement applicants should be aware of. It is well-established law that an employee’s removal for his or her physical inability to perform the essential functions of his job or position, constitutes prima facie evidence that he is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); and Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998). What this means, essentially, is that if a Federal or Postal employee is removed for his or her medical inability to perform his/her job, the “burden of production” is placed onto OPM. It is as if OPM must “disprove” a disability retirement case, as opposed to an individual having to prove his/her right to disability retirement. It is a “prima facie” case, in that, by having your Agency remove you for your inability to perform your job, it is considered a valid case “on its face”. Further, in more recent cases, the Merit Systems Protection Board has held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002). This means that the removal itself need not specifically state that you are being removed for your medical inability to perform your job; it can remove you for other reasons stated, such as “extended absences”, as long as you can establish a paper-trail showing that those extended absences were based upon a medical reason.

Sincerely,

Robert R. McGill, Attorney