Federal Disability Retirement and the Inescapable Bureaucracies

The gargantuan of Leviathans is the Federal entity with a bureaucracy so expansive that identities of Federal employees are not merely never recognized, but to a great extent, irrelevant. Certain agencies fall into that category: The Department of Defense; The Department of Homeland Security; the Department of Veterans Affairs; The Department of Agriculture, with all of their subsidiary services, including the U.S. Forest Service; The U.S. Department of Justice; and, further, the U.S. Postal Service probably qualifies in that category of large, subsuming organizations where one’s identity of any sense of “self”is lost within the overwhelming size of the bureaucracy.

For the Federal employee or the Postal worker who is employed by such organizations, or any of the lesser ones (i.e., U.S. Department of Transportation, Federal Aviation Administration; Department of Commerce; NOAA; Department of Energy; Department of — and one may almost be able to simply insert any pragmatic noun or adjective, and there is a department or agency which fits the bill), the intersection of a medical condition which begins to impede one’s ability and capacity to perform the full positional duties of one’s job, becomes a double-edged sword: On the one side of the equation, being an employee of a large organization can mean that one can, with some success of anonymity, continue to work without much notice, so long as the immediate supervisor or other coworkers do not take note; on the other side of the sharpened sword, is the reality that if such an organization begins to take punitive and adverse actions, it is difficult to fight against the compendium of agency tactics.

Whether the agency notices or not, the Federal employee and the U.S. Postal worker has an absolute right to file for CSRS or FERS Disability Retirement benefits through the U.S. Office of Personnel Management, so long as certain prefatory legal criteria are met.  For the Federal employee or Postal worker under FERS, a minimum of 18 months of Federal Service is required. For the quickly-fading dinosaur of CSRS employees, the minimum requirement of 5 years of Federal Service is required. In either case, if a Federal employee or Postal worker begins to suffer from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, then it is time to consider filing for Federal OPM Disability Retirement benefits, especially if it becomes fairly evident that the medical condition is going to last a minimum of 12 months.

Then comes the next hurdle and realization: While the ill Federal employee or the injured Postal worker is employed by one of those gargantuan entities, the filing of a Federal Disability Retirement application must ultimately be submitted to another Leviathan of sorts: The U.S. Office of Personnel Management. C’est la vie.

Sincerely,

Robert R. McGill, Esquire

 

Federal Worker Disability Retirement: The Agency’s Actions

“That which the Federal Agency determines is tantamount to the hand of God — only more powerful.”  Or so it may often seem.  And so the Federal (and Postal) Worker will often wait with trepidation and anxious disturbances, caught in the limbo of a Federal bureaucracy, whether in issuing a leave-restriction letter, a warning, a formal PIP plan, a determination of being fit or unfit for duty, and multiple other actions which will adversely impact upon a Federal worker.

Preemptive actions rarely have any efficacy with a Federal Agency; an appeal to the U.S. Merit Systems Protection Board is often seen as a mere formality for the Board to render a decision in the agency’s favor, especially when it comes to agency actions concerning discipline and work; and an EEO complaint, while a tactic for forestalling ultimate decisions, is a burdensome and lengthy process of litigation.

Federal Disability Retirement is often the most advantageous of avenues to pursue, if only because the standard of proof to meet the eligibility criteria is quite low — not the high standard of Social Security Disability, where one must show a deleterious impact upon the daily living abilities, but the much lower standard of being unable to perform one or more of the essential elements of one’s job.

Proactive choices in life are often limited, especially when one is confronted with a seemingly omnipotent entity like a Federal Agency; but Federal Disability Retirement is an existent benefit which allows for the Federal or Postal employee to opt out and reach that rehabilitative period of seclusion, in order to regain one’s health and come back for another day, another fight, another round.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Different Agencies

The question is sometimes asked as to whether, in filing for a Medical Retirement from the Office of Personnel Management, it makes a difference whether the Attorney has previously dealt with a particular Agency of the Federal Government.  

Ultimately, whether it is the Department of Homeland Security, Transportation Security Administration, Customs & Border Protection, Department of Agriculture, Department of the Army, Navy, Air Force, etc., or the multitudinous variety of other departments, including the U.S. Postal Service, Department of State, Securities & Exchange Commission, Social Security Administration, NASA, NOAA, NIH, etc., it matters not. Agencies are made up of individuals.

Whether individual supervisors or Human Resources Departments are “helpful” or not, depends not upon an Agency, but upon the very individuals who comprise the corporate culture of the agency.  Certainly, the tone and tenor of the Department head, and the deliberate compilation of an unpleasant group of supervisors can make a difference in the cumulative culture which conducts business, but for purposes of a medical retirement under FERS or CSRS, the focus needs to be upon the medical conditions, the impact of the medical conditions upon one’s positional requirements, and obtaining the proper documentation to prove by a preponderance of the evidence that one is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS.  

Having prior experience with a multitude of different agencies, over many years, is helpful in recognizing those issues which are central to a Federal Disability Retirement case, and those issues which are and should remain peripheral to a case.  Whether a particular agency or department has been specifically encountered in the past is of far less relevance.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Not all Agencies are Equal

No names will be named.  Not for purposes of “protecting the innocent”, because it is doubtful that there are any innocent entities, anyway.  Rather, the knowledge that there are some agencies which are worse than others, is widespread knowledge, anyway; and, indeed, if the agencies are “outed”, it would merely be a redundancy to name them.

There are Agencies which, when the name is spoken, it sends shivers down one’s spine, because of the mean spiritedness, the uncooperative attitude, and the sheer incompetency of the Human Resources Department which is designated to process a Federal Disability Retirement application.

Then, there are agencies where the H.R. Department — no matter who in the department is contacted — goes out of their way to assist throughout the entire process. They understand the traumatic nature of a Federal or Postal employee filing for Federal Disability Retirement benefits under FERS or CSRS. They realize that the designation, “Human” and “Resources” and “Department”, when taken collectively, means that it is the point where employees come to in order to obtain assistance, to engage in a process which may be very personal, and that the resources sought after require the understanding and compassion of individuals.

Ponder that for a moment — that one’s job may entail, as part of the “essential elements of one’s job” — a showing of understanding and compassion.  Imagine that.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Problems with the OWCP Paradigm

The problem with basing one’s future stability upon an “OWCP Paradigm”, or “model”, are multiple in nature.  To begin with, you cannot work at another job while receiving OWCP temporary total disability payments.  Thus, while you may be an injured worker, and unable to perform the essential elements of your Federal or Postal job, you may nevertheless be able to be productive in some other capacity, and may be capable of starting a business or working in some other field.  This is true if you are on OPM Disability retirement:  You can go out and get another job, and make up to 80% of what your former position currently pays, and continue to receive your disability annuity.  This is a good deal, in my view, because it provides an incentive to go out and become productive, and to plan for the future. 

Furthermore, OWCP/Department of Labor is notorious for cutting off benefits at the first sign that you are anything less than fully cooperative with their dictates.  OWCP may send you to a “second opinion” doctor who finds that you are “completely recovered”, thereby endangering your Worker’s Comp benefits.  Or, in order to save money, they may dictate to you that you must work as a Wal-Mart greeter, and pay you the difference between a menial job (not of your choice) and what they are paying you.  If you refuse, OWCP may simply ascribe what they believe you can earn, and pay you the difference — or not pay you anything.  While OWCP has procedures for appealing decisions, it is a long and arduous road to take.

These are only some of the problems associated with basing one’s future upon a Worker’s Compensation paradigm.  That is not to say that one should not file for and accept OWCP payments — it definitely pays more, and for a temporary period of payments in order for an injured Federal or Postal employee to remain financially solvent in order to recover from one’s work-related injuries, it is a good program.  As a paradigm for planning for one’s future, however, there is much to be desire.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Paradigms for the Future

In attempting to decide to file for Federal Disability Retirement Benefits, it is often the case that Social Security disability benefits must be considered (not just “considered”, obviously, for FERS employees, because it is a requirement to file for it), and how seriously and vigorously; and further, whether to pursue, or to continue on, OWCP temporary total disability benefits.  These are “paradigms” that must be considered for the future.  By “paradigm”, I mean that they represent “models” of how a person wants his or her future to be based upon. 

For instance, let’s take the paradigm of Social Security disability benefits.  Because FERS employees who file for Federal Disability Retirement benefits must also file for Social Security disability benefits (to see if they qualify; and, if qualified, the offsetting features will apply), one must take into consideration whether or not a Federal or Postal employee will actually want Social Security disability benefits.  This question arises because Social Security has a “cap” in which a person who receives Social Security disability benefits can make ancillary earned income (roughly no more than $10,000 per year).  Because of this, one must think of the future paradigm of one’s life:  If a person on FERS disability retirement wants to go out and get a part-time job, or start on a path for another career, where he or she makes 15, 20, 25,000 per year or more (because remember, a person can make up to 80% of what a person’s former Federal or Postal job currently pays), then he or she may not want to get Social Security disability benefits.  Most people who are on Federal disability retirement are simply disabled from performing one or more of the essential elements of the particular job; they are not “totally disabled”, and therefore are able to go out and start a second career.  This is the “paradigm” for the future which must be considered, and such a model for the future must be carefully thought through.  Next:  the OWCP paradigm.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Actions from the Federal Government or the Postal Service

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”. Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment — with the emphasis upon the term “medical”. Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part I

Of interest is what to do when a Social Security filing for disability benefits has been approved prior to the FERS/CSRS disability retirement application being approved.  This is a rarity, and indeed, it should logically be that way:  for Social Security disability requires a higher standard of (essentially) “total disability”; while the criteria for approval under FERS/CSRS is that of an “inability to perform the essential elements” of a particular job — meaning, in essence, that an individual is no longer a good fit for a particular type of job, but could certainly be productive in some other capacity of employment.

The cases at the Merit System Protection Board which have addressed this issue have been fairly consistent.  An approval in and of itself will not necessarily help a FERS/CSRS application; as with the application process itself, the applicant has the preponderance of the evidence of proving the relevance of the approved Social Security filing.  I am often asked whether, in a denial of an SSA disability application, where the decision by the Social Security Administration states that, while SSA acknowledges that the applicant is unable to perform his or her current employment because of the medical condition, yet the applicant for SSA disability benefits is denied because he or she may engage in other productive employment — whether such a statement in the denial (that SSA acknowledges the applicant’s inability to perform his or her current job) should be forwarded to OPM.  My answer is that it should not be, because it is not relevant to OPM’s criteria for making a determination.

As to the two most important questions:  1.  If a Social Security Disability application is approved, what needs to be sent to OPM, and 2. If Social Security’s determination doesn’t provide the necessary language to be relevant for forwarding to OPM, what can take its place?  As to these two questions, I will be addressing each in a blog to be written in the very near future.

Sincerely,

Robert R. McGill, Esquire