Medical Retirement for Federal Workers: Expectation of Ethical Behavior

Ethics requires the containment and delineation of certain parameters of behavior.  The single intervening cause which provides for an exception to such constraints of behavior — as a practical matter — is the accumulation of power.  Power serves as an aphrodisiac which propels one to override any knowledge or sense of what it means to “behave properly”.

Just observe the behavior of those who are considered part of the “glamour” set — movie stars, politicians, wealthy entrepreneurs, etc.:  the common thread is that, because one acquires and retains money and fame (and therefore power), one need not be constrained within the parameters of ethics.  Just as individuals may act in certain ways, so agencies and conglomerations of individuals will act in a macro-reflection of how singular persons will act.

Thus, when a Federal or Postal employee begins the process of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, wisdom should guide the Federal and Postal employee to expect his or her agency to act in ways contrary to ethical behavior — if not outright violating any rules of ethics, at a minimum, to act in a harassing and mean-spirited manner.

Power brings out the worst in individuals, and in agencies; and when the “weakling” shows his or her vulnerabilities, the claws and fangs manifest themselves in the most ferocious of manners.  Ethics is for the protection of weaklings, and for manipulation by the powerful.  That is why it is often a necessity to seek the counsel and guidance of an attorney to countermand the actions of those who deem themselves to be powerful — by leveling the playing field.  Now, as to the power of the U.S. Office of Personnel Management… that is a different story altogether.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Power and Responsibility

It has often been stated that, when an individual possesses the power to do X, there falls upon the individual the concomitant need to exercise such power with responsibility.  Thus, the shortened statement, “With power comes responsibility”.

In applying for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Federal and Postal employee quickly realizes that the entity which holds all of the “power” in the administrative, bureaucratic process, is the U.S. Office of Personnel Management.  Like any large organization, OPM is possessed with a variety of individuals, each exhibiting differing facets of personalities and approaches.  Such variations, however, should of course be veiled by a veneer of professionalism, and the power which they hold — of determining the approval or denial of a Federal Disability Retirement application — is indeed extensive as it applies and impacts the Federal or Postal employee who has made the application for Federal Disability Retirement benefits.

The “power” which OPM holds extends not only to the approval or denial of a Federal Disability Retirement application, but moreover, to the length of time a person must wait for the decision, and then even after a decision, how long before payments will be initiated.

The “responsibility” portion of the equation involves and encapsulates the application of a fair and equitable review of one’s application; a thorough reading of the medical reports and records; and an objective analysis of the applicant’s statement of disability, the comparison to the position description, and a comprehensive understanding of the doctor’s reports.

That OPM holds the former (power) is unquestioned; that they exercise the latter (responsibility) is sometimes in question, but fortunately, there are different levels of appeals, and it is the administrative process as a whole which continues to retain its integrity, and for that, we may all be thankful.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: The Adversarial Structure

Preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, has inherently an adversarial structure built into the entire administrative process.  This is ultimately unavoidable, but one should not be persuaded into complacency about the bureaucratic side of things, merely because a Human Resources office describes it as procedural in nature, and merely an “administrative” matter.

That is precisely why there are appellate stages built into the system — first, within the administrative procedure itself, of filing a “Request for Reconsideration” within the same agency which denies the Federal Disability Retirement application, the U.S. Office of Personnel Management, then the ability to appeal the case to a separate, independent body, the U.S. Merit Systems Protection Board; and further to a 3-Judge panel of the U.S. Merit Systems Protection Board, which is identified as a “Petition for Full Review” (PFR).  Beyond that, there is an oversight mechanism provided via further review, by the ability to file an appeal with the U.S. Court of Appeals for the Federal Circuit, which reviews the legal application and its sufficiency through overview of the laws applied.

Indeed, one need only look at the structural mechanisms in place to understand that, far from being merely an “administrative” process, it is adversarial in nature, and should be treated at the outset as such.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Agency Actions prior to Separation

The question is often asked as to whether there is an adverse or detrimental impact upon a Federal Disability Retirement application if the Agency or the U.S. Postal Service initiates an adverse action, places an individual on AWOL, or administers a similar type of administrative sanction, action, etc.

The general answer is that such agency actions will not prevent or influence the prevention of a Federal Disability Retirement application from the U.S. Office of Personnel Management, whether under FERS or CSRS, but such a generalized answer contains within the “details” certain implicit assumptions — the primary one being, that the medical support which would accompany such a medical retirement will be strong enough to withstand and effectively refute such an adverse action.

By “supporting medical documentation” is meant, at a minimum, two issues which the treating doctor of the applicant must address:  That, prior to separation from Federal Service, the Federal or Postal employee could no longer perform one or more of the essential elements of one’s job, and further, that the medical condition is expected to last for at least 12 months.

Additionally, a third element would also be helpful — that the medical condition or disability began before the adverse action, or conversely, that the behavior or acts of the Federal or Postal Disability Retirement applicant which precipitated the adverse response of the Federal Agency or the U.S. Postal Service occurred after the origination point of the medical condition, and such an origination point can be ascertained.

This is because OPM will sometimes argue that the underlying motivation and purpose of the Federal or Postal applicant filing for Federal Disability Retirement benefits was based not upon the medical condition, but because of the adverse action.  Further, the Merit Systems Protection Board has stated that such circumstantial evidence of underlying motive or intent can indeed be reviewed.  Rebuttal of such implied intent can best be proven by a doctor’s assertion.

Motives are a peculiar thing, but the casting of such underlying motives are often difficult to refute, unless a timeline of facts can counter them.  Motives are found only in the depths of one’s consciousness; and like the air we breath, the fact that we assert its existence does not necessarily prove otherwise, especially if the doubter is receptive to the poisonous whispers of finger-pointing.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Thoughtless Agency Actions

The term, “oxymoron” comes from the Greek, meaning “sharp dull” — a phrase or concept which embraces two or more contradictory terms.  When was the last time that the combination of terms, “thoughtful” and “agency” made any sense?  

Thus, it is a waste of one’s time to rant and get upset over an agency’s actions because of bad timing (i.e., to propose a removal during the holidays; to initiate a PIP on the day before Thanksgiving; to suspend a person without pay on a Federal employee’s birthday; and other such coinciding thoughtless encounters).  It is fine to be upset for a moment because of the thoughtless actions of an agency; to continue to heave insults and focus upon the thoughtlessness, however, is a waste of one’s time, and ultimately misunderstands the role, intent and goal of an Agency.  

The reason why “thoughtless” and “Agency” do not ultimately and technically comprise an oxymoron, is because inherent in the very definition of the entity identified as a Federal Agency or the U.S. Postal Service, is the idea that it is indeed a Hobbsian Leviathan which a singular purpose of “doing” something, whatever that “something” is.  

In the administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, one should expect that one’s Agency, or the U.S. Postal Service, will engage in multiple thoughtless actions.  That is the innate nature of a Federal agency, or the U.S. Postal Service.  And, inasmuch as Federal Disability Retirement involves medical conditions, a sense that “empathy” and “sympathy” are called for — of a person’s career coming to an end; of an often progressively deteriorating medical condition, etc. — one would think that the agency would consider putting some thought into their actions.  But that would be asking too much.  

Federal Disability Retirement is an option which the agency sees as merely a problematic solution that needs to be dispensed with — yes, an oxymoron, but a truth, nonetheless.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Fairness

“Fairness” is a difficult concept to set aside, even when it is in the best interests of one to do so.  The underlying list of supporting reasons may be many — that the Agency engaged in acts X, Y & Z; that the Agency or named Supervisor did certain things, etc.

In a Federal Disability Retirement case, it is often not a good idea to focus upon issues of fairness.  In representing clients, my focus is upon proving by a preponderance of the evidence that a Federal or Postal employee is eligible and ultimately entitled to receiving Federal Disability Retirement benefits under FERS or CSRS.

Issues of agency actions; whether a Federal or Postal Worker was treated “fairly”; whether the National Reassessment Program is “fair”; all of these issues become peripheral, and sometimes harmful to the process of filing for and obtaining Federal Disability Retirement benefits.

To paraphrase an old adage, it is my job to keep that which is central to the issue, my center of attention, and to sweep aside the superfluous as just that —  distractions which should not be allowed to impede or otherwise impact the purpose of the entire process:  to get an approval from the Office of Personnel Management for one’s Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: SF 3112B

It is amazing how a Supervisor’s Statement is completed.  Normally, it is completed without much thought; sometimes, it is completed with too much thought (and self-protective, CYA language concerning how much effort the agency attempted in “accommodating” the employee, when in fact little or no effort was made); more often than not, there is a last, parting shot at the employee — some unnecessary “dig” which often contradicts other portions of the statement; and, finally, every now and then, the Supervisor’s Statement is completed in the proper manner, with forethought and truthfulness. 

Fortunately, the Office of Personnel Management rarely puts much weight on a Supervisor’s Statement in making a determination on a Federal Disability Retirement application under FERS or CSRS — unless there is some glaring statement of a deliberate attempt to undermine the Application.  This is rare, because it is a medical disability retirement, not a Supervisor’s disability retirement — meaning, that it is the medical opinion, not the opinion of a Supervisor, which is (and should be) most important.

Sincerely,

Robert R. McGill, Esquire