Federal Gov. and USPS Disability Retirement: Excessive Reliance

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is never a good idea to proceed with excessive reliance (or any at all, for that matter) upon expected or presumed actions on the part of one’s Agency.

The preponderance of the evidence in proving an OPM Disability Retirement application is always upon the Federal or Postal worker, and one should affirmatively and pro-actively proceed without regard to what the Agency will do, says it will do, or might do during the process.

Yes, the Agency has its portion to complete; yes, the U.S. Office of Personnel Management does review the entirety of the OPM Federal Disability Retirement packet, including the standard forms which the agency must complete, along with other personnel information that is forwarded to OPM.

But the crux and essence of a Federal Disability Retirement applications always remains the medical information gathered and submitted, along with the Applicant’s Statement of Disability, in conjunction with the asserted nexus constructed between one’s medical condition and the positional duties of one’s job.

Any other approach is merely to run a fool’s errand for a fiefdom from which one is attempting to flee.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Agency Self-Interest

Self-interest is an interesting characteristic to observe — one which everyone possesses, but only the obtuse deny.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, be aware that the Agency has its own self-interest.

If the stated interest is couched in terms of the Federal or Postal employee’s “best interests”, it is good to be suspicious, or at least modestly cautious in embracing such a claim.  Such wariness in accepting the stated claim of one’s agency is obviously not a warning which most Federal or Postal employees would receive with any surprise; you have been Federal or Postal employees for many years, and those initial years of idealism and youthful enthusiasm have already been stamped out of you (let not the cynicism of this writer dampen the ardor of youth).

If one follows the advice of the Agency blindly, ask yourself the following question:  If you receive a denial at the First Stage of the process, will the agency respond in a helpful manner, or will they say:  It is not our responsibility — it is the Office of Personnel Management which makes the decision?  Is it a common experience that agencies defer responsibility when something goes wrong?

Sincerely,

Robert R. McGill, Esquire

 

Federal Worker Disability Retirement: Bruner Revisited

In filing for Federal Disability Retirement benefits under FERS or CSRS, one should never pause or hesitate from affirmatively going forward in preparing a Federal Disability Retirement application based upon what the Agency will or will not do; is expected or not expected to do; or is predicted or not predicted to do.  One should simply move forward based upon one’s personal and professional circumstances, the extent of the medical condition, the impact of one’s medical condition upon one’s ability to perform the essential elements of one’s job, etc.  

Thus, for instance, where a Federal or Postal employee has informed the Agency of one’s medical condition, or one has filed for FMLA and submitted substantiating medical documentation, if the plan is to “wait” for the Agency to remove the Federal or Postal employee in order to obtain the advantage of what is generally known as the “Bruner Presumption,” such a plan is normally not the best course of action, for various reasons.  

First, the Agency may take an extraordinary amount of time, and in the end, may attempt to remove the Federal or Postal employee for “other reasons” (performance issues, for instance).  Second, whether or not one “gets” the Bruner Presumption in a case, that legal advantage is really for the Third Stage of the process — at the Merit Systems Protection Board — inasmuch as most of the Claims Reviewers at the Office of Personnel Management are not legally informed enough to know such a legal presumption from a nearby neighbor named John Doe Bruner.  And Third, one must affirmatively prove by a preponderance of the evidence, anyway, that one cannot perform the essential elements of one’s job because of a medical condition.  The Bruner Presumption, while a great thing to have, does not override the medical condition and evidence which must be presented.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Limitation of Agency Actions

Often, in the process of filing for Federal Disability Retirement benefits under FERS or CSRS, the client will ask the question, “Well, doesn’t that prove that I can’t do the job?”  Such a question invariably points to some action by the Agency — a letter or a memorandum; a statement which the Supervisor made, etc.  While it may be true that the Agency believes that a Federal or Postal employee is unable to perform, or is not performing, all of the essential elements of the job, remember that actions of the Agency can never replace the affirmative burden of proof that one is unable, medically, to perform the essential elements of one’s job.  

One must keep in mind that the Office of Personnel Management is a separate Agency which is not necessarily in communication with the Agency which employs the Federal or Postal employee.  The “mindset” of the Agency is not being considered by the Office of Personnel Management.  Whatever the motivations of the Agency in doing what it is or will do, is to a great extent irrelevant to OPM.  What the Agency is doing may well indicate “proof” as to other issues — i.e., inability to accommodate; acknowledgment that certain essential elements of one’s job is not being performed, etc. — but it does not prove that an individual is unable, as a result of a medical condition, to perform all of the essential elements of the job.  Only a doctor can do that.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: The Futility of Waiting for an Agency

In Federal Disability Retirements, the general rule is as follows:  waiting for your agency to act in some way that may prove to be beneficial to your case, is an act of futility.  Whether it is to wait for a performance appraisal; whether to see if the Agency will accommodate you, or not; whether you are waiting for a response from your Supervisor to see if he or she will support your Federal Disability Retirement application, etc. — in the end, a disability retirement application under FERS or CSRS is a medical issue.  It is not an “Agency Application for Disability Retirement”; it is not a “Supervisor’s Application for Disability Retirement”.  It is a medical disability retirement, inseparable from the Federal or Postal employee who is filing for the benefit.  As such, the proper focus should be placed upon the sufficient and substantiating medical documentation.  If the medical documentation, combined with the applicant’s statement of disability, are persuasive with respect to the correlative force of being unable to perform one or more of the essential elements of one’s job, then such a combined force makes all other issues essentially moot and irrelevant.  Don’t wait upon an agency to act; to act affirmatively without depending upon the agency is always the best route to follow.

Sincerely,

Robert R. McGill, Esquire