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

 

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

OPM Disability Retirement: Creativity Is Important In the Applicant’s Statement

It is important to creatively inter-weave facts, feelings, medical impact, symptoms and conditions into a persuasive Applicant’s Statement of Disability.  It should not be overly emotional; it should not be voluminously long; it should not be preachy; it should not be written as a doctor would write it.  It is the Applicant’s Statement of Disability, and it should be from the Applicant’s perspective; but as with every writing, the “audience” to whom anything is written, must always be kept in mind.  Remember that the audience is a reviewing Office of Personnel Management representative — one who is evaluating, analyzing, and making a decision upon the application for disability retirement. 

Of course the independent attachment of medical documentation will be persuasive; of course a review of the position description will have an impact; and of course the analysis of comparing the medical condition with the type of job one has will be scrutinized and will be relevant.  It is the applicant’s statement of disability, however, which will most often be the determining factor.  That is why such a statement must creatively weave all of the various aspects of a disability retirement application — facts, emotions, job impact, medical impact, doctor’s statement, personal statement, impact statement — all in a bundle, all inter-weaving, all in a persuasive, creative description.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Social Security Disability

Under the rules concerning FERS disability retirement applications, one must file for Social Security Disability.  As most people already know, there is an interaction/offset between Social Security Disability benefits and FERS disability benefits, if both are approved (100% offset in the first year of annuity, 60% offset every year thereafter).  One would assume (dangerously, as it turns out), that if an application for Social Security disability is approved, that it would automatically render an approval under FERS disability retirement a “sure” thing.  Nothing could be further from the truth. 

The fact that Social Security has a higher standard of proof — where one must be considered “totally disable” as opposed to (under the legal standards for FERS) “disabled from performing one or more of the essential elements of one’s job”) — one would think that, legally and logically, if you have met the higher legal standard of proof, then the lesser standard would have been automatically met.  Unfortunately, because the two standards are applied in different, independent agencies, the fact that Social Security Disability benefits are awarded is not a guarantee that the FERS disability retirement application will automatically be granted.  However, there is clear case-law stating that OPM must consider the approval by SSD as one factor among many in the consideration of FERS disability retirement applications.  It is important to cite such cases in support of your application for FERS disability retirement.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Notifying the Agency

Fervent loyalty by the Federal and Postal Employee to want to work for as long as possible, and to do the best job possible, is often taken for granted; what is not as common, however, is a “bilateral loyalty” — meaning, loyalty shown by the Agency back to the Federal or Postal employee, especially when such loyalty is needed, during the long process of filing for, and obtaining, disability retirement benefits from the Office of Personnel Management.

In representing a client, I am often asked whether or not the Agency should be notified of our intentions immediately, and my response always is: It depends. If there is a strong and positive relationship between the employee and supervisor, where there are strong indicators that the Agency will be supportive during the lengthy process, then I will often advise informing them fairly quickly. More often, however, the Agency has had a long history of acting in a “less than sympathetic” manner — and that is in most cases. In such cases, I normally advise to wait until the disability retirement packet has been prepared and finalized, and it is ready to be submitted to the Personnel or District H.R. Office. Each case must be looked at independently, and there are never any easy answers. Agencies are comprised of individuals; individuals are complex beings, with the potential for compassion and empathy, but just as well with a potential for cold disregard for the plight of an individual. So long as Agencies are comprised of individuals, Agencies themselves act as individuals, and each case must be viewed in that light.

Sincerely,

Robert R. McGill, Esquire