Federal Disability Retirement: The Extrapolated Life

Originating from mathematics, the concept of extrapolation works well within numerical or statistical restrictions, because the inherent precision constrained by present trends versus application to unknown quantities, poses a self-correcting device not otherwise discovered with linguistic flexibility.

But what of a person’s life?  Most descriptions possess mere “slice of life” indicators.  An employment application; information gathered on a background check; security clearances obtained; personal financial statements; a family discussion about an incident which involved a relative; these are all moments in time, partial reflections upon a wider context of a complex life.  But that is how we are viewed, and how we view others; for, it is simply an impossibility to convey, or to hold with accurate assessment, the entirety of a person’s life, leaving aside the lives of everyone and anyone we encounter.

And so we are left with designating labels of convenience; that is John who works in IT; Mary, the office manager, and oh, by the way, she has two kids, one of whom had the flu last week; and so it goes.  Are such categorical delegations adequate?  For specific purposes, and in defined ways, they are useful in their own methodological curtailments.

For Federal employees and U.S. Postal workers who are intending to filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset, it serves well to understand the relevance of contextual extrapolation.  For, people have a tendency to want to tell the fullness of one’s life story.

Where to begin?  How to introduce one’s self.  What to include, and what to exclude.

Such is the contrast between David Copperfield and Holden Caulfield; the lengthy version of a biography, or the brevity of a pointed narrative.  Most want to divulge the former; the listener normally desires the latter.  To divulge too much is to indulge in needless chatter; discretion is, indeed, often the greater part of valor.

Thus, in preparing, formulating and filing for Federal Disability Retirement benefits through OPM, in the writing of one’s narrative, one should try and apply the precision-methodology of extrapolation in mathematics, but with a linguistic application sufficient to relate the relevant facts.

In the end, Caulfield’s concerns were probably overstated, and Copperfield’s remembrances of past childhood hurts could have been somewhat abbreviated; and a compromise between the two in all likelihood would have produced the best of narratives, at least for purposes of an OPM Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Social Isolation

Federal and Postal employees who contemplate filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, often feel a profound sense of isolation.

First, of course, the agency itself has a tendency to treat the medically disabled Federal or Postal employee as a pariah; that, somehow, suffering from a medical condition is within the control of the sufferer.

Then, if the agency is informed of the very intent to file for Federal Disability Retirement benefits, then certain consequential actions often follow:  a PIP may be imposed; leave restrictions may be enforced; an adverse action may be proposed, including a removal — often based not upon the medical condition, but all sorts of “other reasons” that have been tabulated, memorialized and recorded, by supervisors and fellow co-workers.  Yes, there is FMLA; yes, the Federal or Postal employee may file an EEO action or other potential lawsuit; but such counteractions fail to mitigate the sense of isolation and separation that the Federal or Postal employee feels, from an agency which he or she has expended one’s life and energies to advance for the cause of one’s career.

Third, when the Federal or Postal employee finally files with the U.S. Office of Personnel Management, OPM’s non-responsive attitude further exacerbates the sense of isolation.  A sense of closure is what one desires; of being able to obtain Federal Disability Retirement benefits, then to move on with life into the next phase of a vocation, the next step beyond.

One should always remember:  It is the very act of filing which is the first step in overcoming the profound sense of isolation; for, the act itself and the decision to move beyond, is the affirmative indicator that there is light at the end of the proverbial tunnel.

Sincerely,

Robert R. McGill
FERS Disability Attorney

 

Postal and Federal Disability Retirement: Agency Removal & Resignation

Whether an Agency is willing to wait while a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS, or if removal becomes the preferred action, is always a concern to the Federal or Postal employee.

Often, no matter what medical documentation is submitted as documentary proof of one’s inability to come to work, an Agency will insist that a Federal employee is “AWOL” because of some minutiae or technicality in the paperwork provided.  Regardless (no, I will not use the grammatically incorrect non-word, “irregardless”, which is a combined double-negative of the suffix and prefix, leaving the root word “regarding” intact, thereby making irrelevant the necessity of both the prefix and the suffix) of the Agency’s actions, it is important for the Federal or Postal employee to proceed with his or her Federal Disability Retirement application.

Attempting to predict how the agency will act or react; waiting upon an Agency’s response — ultimately, one must proceed affirmatively and not be concerned with what the Agency will or will not do.  Concurrently, however, the Federal or Postal employee should respond to an Agency’s removal actions.

Sometimes, if in fact the Agency is able to produce sufficient “evidence” to justify an adverse removal action (lack of sufficient notice; lack of medical justification submitted in a timely manner; violation of PIP provisions; violation of previously-imposed leave restrictions, etc.), an offer of resignation in order to maintain the official personnel file “clean” of any such adverse actions, is a reasonable course to take, both for the Agency as well as for the Federal or Postal employee.

More often than not, the Agency will be responsive to opening a discussion for a mutually beneficial removal based upon one’s medical inability to perform the essential elements of one’s job.  Since the same medical documentation to prove one’s medical disability retirement application should be sufficient to justify such a removal, the timing of such a removal could not be better.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Using the Bruner Presumption

Argumentation on a point of law, persuasive argumentation based upon a logical implication of a legal finding, extended argumentation based upon an implicit extension of a finding of law — all can be effective tools in a formulation of a Federal Disability Retirement application under FERS or CSRS.  

Thus, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, often the question is posed as to whether the “Bruner Presumption” (that presumption which is derived from being separated from Federal Service based upon  a medical inability to perform one or more of the essential elements of one’s job, or a finding of a parallel delineation of being administratively separated while concurrently showing that a medical condition was the underlying basis of such separation from Federal Service) can be applied based upon the proposal of an administrative separation, or whether the actual separation from Federal Service must occur.  

While the application of the legal presumption can be applied only upon an actual separation, certainly a persuasive argument can be made that OPM and the Administrative Judge at the Merit Systems Protection Board should effectively grant the presumption, inasmuch as the intent of the Agency is (once a proposal to remove based upon the medical inability to perform the job is made) certainly to follow through on any proposal; nevertheless, technically, the Bruner Presumption is applied only after a decision on the proposal to remove is made.  However, as has been previously stated on many occasions, one should never wait upon the Agency to propose anything, let alone to act upon the proposal.  Instead, one should always affirmatively move forward — especially when contemplating filing for Federal Disability Retirement benefits under FERS or CSRS.

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

CSRS & FERS Disability Retirement: Clarity over Question

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