Federal and Postal Disability Retirement: Agency Actions & OPM

The argument in a Federal Disability Retirement application under FERS or CSRS goes as follows:  An Agency has determined that a Federal or Postal employee is medically unable to perform one or more of the essential elements of one’s job; that Federal or Postal employee cannot be accommodated; the case-law states that, at a minimum, the agency conclusions have a persuasive effect upon a Federal Disability Retirement application; ergo, the Office of Personnel Management should approve the Federal or Postal employee’s Federal Disability Retirement application under either FERS or CSRS.

The problem with such an argument, if relied upon exclusively, is threefold:  (1)  The statutory mandate as to which agency makes a determination upon a Federal Disability Retirement application under FERS or CSRS is misplaced, (2) The Agency, whether the Flight Surgeon at the FAA who determines that an Air Traffic Controller is medically unqualified to continue in his or her job, or the Postal Service who determines pursuant to the National Reassessment Process (NRP) that there is no longer a job available at the Postal Service, or any other agency which determines that no accommodations can be provided — has not applied all of the legal criteria under the laws and statutes governing Federal Disability Retirement applications, and (3) the focus from the perspective of the agency is a “second-tier” focus — of whether an accommodation can be provided to the Federal or Postal employee to see if the efficiency of the Agency can continue, as opposed to the “first-tier” issue of whether the Federal or Postal employee has a medical condition such that it satisfies all of the criteria for a Federal Disability Retirement application.  

As such, it is the focus of the respective agencies which differentiate the possibility of an agency action being merely persuasive, as opposed to determinative, in a Federal Disability Retirement applicationunder either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: NRP, the Flight Surgeon and others

What do the National Reassessment Process for the U.S. Postal Service, the Flight Surgeon for the Department of Transportation, Federal Aviation Administration, and other entities/personnel from other agencies have in common?  

With respect to Federal Disability Retirement applications under FERS or CSRS, the commonality which weaves throughout all is the ability to declare an effective end to a Federal or Postal employee’s career, by asserting that the Federal or Postal employee can no longer perform one or more of the essential elements of his or her job, and because the agency is unable to accommodate the Federal or Postal employee, the resulting option left is to file for Federal Disability Retirement benefits with the Office of Personnel Management.

Logically, one would assume that such an agency action would result in essentially an automatic approval of a Federal Disability Retirement application.  Such an assumption would be erroneous, and to proceed to prepare, formulate and file a Federal Disability Retirement application based upon the erroneous assumption could result in delay, detriment, and ultimate denial by the Office of Personnel Management.  

One must always remember that, separate and apart from what the Federal Agency or the U.S. Postal Service does, the Federal or Postal employee must always be the one to affirmatively prove one’s case, by gathering and presenting the proper medical documentation, and formulating the nexus between the medical condition suffered and the essential elements of one’s job.  

Whether the Flight Surgeon at the FAA medically disqualifies you; whether the National Reassessment Process makes a declarative statement that no jobs are available to a particular Postal Worker; or whether the Federal Agency states that they are separating you because of your medical inability to perform your job — while the commonality between them exists, it does not extend to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Continuing Confusions

In Federal Disability Retirement law under FERS & CSRS, the issue concerning accommodations can continue to remain a rather confusing area of law.  This is especially true when an Agency allows for an individual, either in the Postal Service (which is becoming rarer because of the prevailing winds of the National Reassessment Program) or in the non-Postal, Federal sector, to remain in a position and perform much of the lighter duties of the job, and to allow for one or more of the essential duties of the job to be delegated to others, or not be performed at all.  Now, such a situation can continue on for years, and there is nothing inherently wrong with such an arrangement (aside from the fact that the other Federal workers to whom such work is “delegated” may grumble and complain about fairness or, more likely, that some of the work is never completed), especially if the work which the injured individual performs is valuable to the Agency — even in such a “light duty” status.  

What must be kept in mind, however, regarding the relevance and significance to filing a Federal Disability Retirement application under FERS or CSRS, is that throughout the entire time-period of being on such light duty, the Federal or Postal worker could have, at any time, filed for Federal Disability Retirement benefits and should have been approved.  This is because such temporary “light duty” arrangements never constituted an “accommodation” under the law, and the Federal or Postal worker was eligible for Federal Disability Retirement benefits regardless of remaining in the “light duty” job.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: The Agency & the Individual

The National Reassessment Program (NRP) now implemented in full force, along with the Voluntary Early Retirement, the cash incentives (many have called to ask whether or not, if one is not eligible or offered the early retirement, but the cash incentive with a resignation is still being offered, should you take it?), and the Postal Service’s ultimate goal of shedding its payroll of anyone and everyone who is not “fully productive” by doing away with all “light duty” or “modified duty” slots (there actually is no “slot”, but rather merely an ad hoc set of duties “made up” on a piece of paper, which is what I have been arguing for years and years, and as the Bracey Decision by the Federal Circuit Court addressed) — all of these developments are merely a large-scale, macrocosmic level of what happens every day on an individual, singular basis. 

This is merely a reflection of an Agency, and how it acts, reacts and responds to injured workers, workers who have medical conditions which impact one’s ability to perform one’s job, and worker’s who are not “fully productive”.  It is merely that which happens every day to individual workers, but on a larger scale.  Think about it:  A Federal or Postal employee who develops a medical condition, and cannot perform one or more of the essential elements of one’s job; job performance soon begins to suffer, although perhaps imperceptibly at first; and the question becomes:  How will the agency, via its representative, the “Supervisor”, treat such an employee?  Sadly, more often than not, in a rough-shod, unsympathetic, and often cruel manner.  The Postal Service is simply doing it on a larger scale; but be fully aware, that every day, a Federal or Postal employee who is suffering from a medical condition, encounters such behavior and treatment — only, on a microcosmic, individual scale.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: OWCP, SSD, NRP, Etc.

Nothing works in a vacuum.  Issues surround medical disabilities, the Federal and Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Federal or Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps. 

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark. 

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: A New Beginning

After representing so many Federal and Postal employees over these many years, there are stories which continue to sadden me; as with all professionals, I attempt to bifurcate my life, and not get “personally” involved with my cases.  To blur the lines between providing sound and effective legal advice, and getting “involved” in the personal tragedies of my clients, would certainly undermine the professional effectiveness needed in providing for my clients.  To a great extent, I am successful. Every now and then, however, I am informed of a tragedy — and it touches me. Perhaps that is a good thing; for one can become insensitive, or “de-sensitized” in a way that can be detrimental.

I try and explain to many people that getting Federal Disability Retirement benefits should never be a judgment upon one’s career — let alone one’s life. A career can span a lifetime, or it can extend for a couple of years (i.e., at least the 18 months of Federal Service that is needed to even qualify under FERS). However long, to come to a point in one’s career where it becomes necessary to acknowledge to one’s self that certain medical conditions are directly impacting one’s ability to perform the essential elements of the job — such an admission should never be interpreted to mean that such a circumstance has somehow devalued the worth of a person.  Human beings are complex entities, bundled up by personality, uniqueness, family, job, hobbies, thoughts — a compendium of a history of one’s life.  Note that I merely inserted the concept of “job” within a sequence of many facets.  And, indeed, one’s job is important — it takes us away from the many other bundles of our lives, and forces us to expend 8, 10, 12 or more hours per day, Monday thru Friday, and some weekends, too.  But that which takes up a large quantity of our time does not necessarily or logically result in the definitional essence of a human being; the fact that we spend a great deal of time in the bathroom does not mean that such an activity defines our “essence”.  “Worth” of a human being attaches to each of us, and is inseparable from each human being.  One’s job and career constitute only a small part of us.  Let’s keep that in mind, and in its proper perspective.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Additional Issues Concerning Resignation

An federal agency has a legitimate concern with respect to the work that is not being performed while a person is either out on sick leave or on leave without pay as a result of a medical condition.

On the other hand, Federal and Postal employees who have worked for a sufficient amount of time to be eligible for disability retirement benefits (18 months for FERS employees; 5 years for CSRS employees) have a legitimate expectation of bilateral loyalty — meaning that, inasmuch as the employee has been loyal in the performance of his or her job to the Agency, there is a reasonable expectation that the Agency will be loyal during times of medical hardship, and treat the employee with empathy and compassion.

At some point, greater friction begins to build as the time-frame keeps expanding; the Agency wants the employee back at work, or have the position filled. During the “friction” time, the employee has the leverage to have the Agency propose an administrative, non-adversarial removal based upon the medical inability of the employee to perform his or her duties. It is up to the attorney to persuade the Agency that the goal of the employee runs in the same goal-oriented direction as the Agency: the Agency wants the position; the employee wants disability retirement; both have a common end in mind — vacancy of the position so that the work of the Agency can be accomplished. On the other hand, resignation for the employee gives the employee nothing other than separation from the Agency; it gives the Agency everything it desires.

Sincerely,
Robert R. McGill, Esquire

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire