making the case that absenteeism was medically related | OPM Disability Retirement, Et Cetera…

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

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have. Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition. There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case.

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption. Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc. Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove. It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire