Postal and Federal Disability Retirement: The Agency & the Burden of Proof

In a Federal Disability Retirement case, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, the burden of proving one’s medical inability to perform one or more of the essential elements of one’s job, always remains with the individual Federal or Postal applicant.

Certainly, there are actions by the agency which may add to such proof (e.g., declaring that the Federal or Postal worker is “not fit for duty” will further concretize an assessment made by a third party; or initiating a separation from Federal Service based upon one’s medical inability to perform the essential elements of the job will trigger the Bruner Presumption, which then invokes a rebuttable presumption and shifts the “burden of production” (note that it is not the shifting of the “burden of proof” — a conceptual distinction important to recognize) over to the U.S. Office of Personnel Management.

Waiting for one’s agency to act upon anything is, however, a very dangerous venture to begin with; thinking that one’s own agency will provide the proof necessary to establish one’s eligibility for Federal Disability Retirement benefits would not only be dangerous, but foolhardy.  For, at its most fundamental level, the fact that the very entity which makes a decision on a Federal Disability Retirement application (OPM) is one which is separate and independent from the agency for which one works, creates a chasm which only further magnifies the inherent problem.

OPM pays little to no attention to what the agency does — except, perhaps, when the agency attempts to directly confront and challenge a Federal Disability Retirement application.  Otherwise, don’t look for help from one’s agency (generally speaking) when one is filing for OPM Disability Retirement benefits; such unfounded reliance will only disappoint, at best.

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

Postal and Federal Disability Retirement: The Disjunctive between Words and Actions

In symbolic logic, there is the disjunctive which allows for a choice between two elements, and one must exhaustively pursue the symbolic “tree” in order to arrive at a logical conclusion.  At each fork in the road, there remains a choice; the pursuit of each road leads to the answer one searches for.

Similarly, in life, one is often confronted with such metaphorical “forks in the road“, and the choice which one embraces will determine whether the path taken leads to — if not a logically sound outcome — a reasonable judgment.

Throughout the career of the Federal or Postal employee, a sense of “loyalty” is stressed; that if one works hard, one will be rewarded; if the agency succeeds in its accomplishments, the individual worker who contributed will be acknowledged, praised, etc.  But the true test of sincerity is actions, not more words.

When the time comes when a Federal or Postal employee is overwhelmed by a medical condition, such that the medical condition impacts one’s ability to perform one or more of the essential elements of one’s job, then that is precisely the time to “cash in” on that loyalty which the agency had previously and so honorably declared to be of penultimate importance.

Don’t count on it.

If one’s agency indeed confirms the sincerity of its words, then that is an exponential benefit to the process of one’s life and career.  But short of that, one has reached a true “fork-in-the-road”, tripartite in character, and the choice is often one of walking away, being constantly harassed, or filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.

Federal Disability benefits were always part and parcel of a Federal or Postal employee’s total compensation package.  It was part of the reason why you “signed on” as a Federal or Postal worker.

When the appropriate time comes — when a medical condition prevents you from performing one or more of the essential elements of one’s job — then it is time to go down that path, and pursue the tree of logic, and look out for one’s own best interest — and not merely be blinded by the words of an agency which somehow declares a state of amnesia when it comes to such vainglorious words like honor, loyalty, and the mission of the agency.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Agency’s Bad Behavior

Whether it is merely the characteristic of the modern age; whether the entirety of the media conglomeration — television, movies, videos, social media outlets — which allow for unfettered behavior; whatever the reasons, social conventions, norms, and common rules of behavior have distinctively deteriorated, and their impact and reverberating effects are becoming increasingly apparent both in the personal realm as well as the professional sectors of society.  But of course bad behavior — a term which can universally encapsulate the complexity of the problem — has always existed.

For the Federal or Postal employee who is contemplating Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS (if the latter, then regular retirement is fast-approaching those under the old system, anyway, and you may be able to avoid such bad behavior soon enough), encountering and fending off bad behavior from agency personnel, Human Resources personnel, coworkers or Supervisors, is a tradition of long-standing tenure, and one which increases with the manifestation of a medical condition.  

Why is it that human nature pounces upon the vulnerable and the weak?  

The peculiar thing about the creation and enactment of a law — be it the Americans with Disabilities Act, or other similar protective mechanisms against discrimination — is that the codification of a necessary protection reveals the breakdown of that very sector of society which it is meant to protect.  Protection is not needed where decency prevails; it is only when decency deteriorates, that such protections become necessary.  

Ultimately, the best solution is to file for Federal Disability Retirement; to walk away with a smile (or a smirk); for, any other avenue will merely encourage the bad guys to up the ante, albeit in more subtle forms.  In the next life, for the Federal Disability Retirement annuitant, perhaps decency will prevail; we can all hope.

Sincerely, Robert R. McGill, Esquire

Federal Worker Disability Retirement: Agency Self-Interest

Self-interest is an interesting characteristic to observe — one which everyone possesses, but only the obtuse deny.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, be aware that the Agency has its own self-interest.

If the stated interest is couched in terms of the Federal or Postal employee’s “best interests”, it is good to be suspicious, or at least modestly cautious in embracing such a claim.  Such wariness in accepting the stated claim of one’s agency is obviously not a warning which most Federal or Postal employees would receive with any surprise; you have been Federal or Postal employees for many years, and those initial years of idealism and youthful enthusiasm have already been stamped out of you (let not the cynicism of this writer dampen the ardor of youth).

If one follows the advice of the Agency blindly, ask yourself the following question:  If you receive a denial at the First Stage of the process, will the agency respond in a helpful manner, or will they say:  It is not our responsibility — it is the Office of Personnel Management which makes the decision?  Is it a common experience that agencies defer responsibility when something goes wrong?

Sincerely,

Robert R. McGill, Esquire

 

Early Retirement for Disabled Federal Workers: Agency Pressures

Agencies have an inherent, built-in mechanism to pressure the Federal or Postal employee to quickly file for Federal Disability Retirement benefits from the Office of Personnel Management, and indeed, often the Human Resources Department will pressure the Federal employee to prepare, formulate and file the application for Federal Disability Retirement benefits in an expedited manner.  

This can be both a positive thing, as well as contain some negative consequences.  Ultimately, the self-interest of the Agency is in vacating the position presently being held by a non-productive (or so it is viewed and thought) dead-weight, in order to have it filled by someone else for the efficiency of the service.  

This is not to say that there are not some compassionate, empathetic H.R. Personnel, or Supervisors or others in the Agency who are attempting to “fast-track” a Federal Disability Retirement application in order to look out for the best interests of the Federal or Postal Employee.  There are some good people.  But the balance of alternatives must always be weighed between filing something quickly, and doing it properly and thoroughly.  

Pressure from the agency should not be the primary basis of one’s response; obtaining the proper medical documentation, the doctor’s reports, and carefully preparing the Applicant’s Statement of Disability in order to increase the chances of success at the Initial Stage of the Application for Federal Disability Retirement with the Office of Personnel Management, should always be the paramount and first order of consideration.  

Each entity has a self-interest; making sure that one’s own self-interest is properly looked after, is the first order of business in preparing, formulating and filing a Federal Disability Retirement application under either FERS or CSRS, from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Agency Collateral Actions

Often, in the preceding years before preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there is a “history” of events between an Agency and the Federal or Postal employee.  Life doesn’t happen in a vacuum, and such a trite adage is certainly true for the Federal and Postal employee.  

Whether in the form of an EEOC complaint or a response to an adverse action which promulgates an appeal to the Merit Systems Protection Board, or multiple other legal forums and responses, actions, etc., there may be a settlement of the issue, and the settlement of such collateral issues may involve a provision concerning Federal Disability Retirement.  

If in fact there is a reference concerning Federal Disability Retirement by the Agency as part of a “global settlement” of collateral issues, it is important to make sure that there is enough specificity in the language to make it worth one’s while to have the provision inserted in a settlement agreement to begin with.  Thus, a generic statement such as, “Agency endeavors to assist the employee in filing for Federal Disability Retirement” would not be very helpful, precisely because the term “assist” can be interpreted in multiple ways, and normally the way that an Agency will interpret the term will not in the least be helpful to the Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS.  Language is a tool which must be used carefully; the effectiveness of language, as with any tool, depends upon the competence of the user.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: The Limitation of Agency Actions

Often, in the process of filing for Federal Disability Retirement benefits under FERS or CSRS, the client will ask the question, “Well, doesn’t that prove that I can’t do the job?”  Such a question invariably points to some action by the Agency — a letter or a memorandum; a statement which the Supervisor made, etc.  While it may be true that the Agency believes that a Federal or Postal employee is unable to perform, or is not performing, all of the essential elements of the job, remember that actions of the Agency can never replace the affirmative burden of proof that one is unable, medically, to perform the essential elements of one’s job.  

One must keep in mind that the Office of Personnel Management is a separate Agency which is not necessarily in communication with the Agency which employs the Federal or Postal employee.  The “mindset” of the Agency is not being considered by the Office of Personnel Management.  Whatever the motivations of the Agency in doing what it is or will do, is to a great extent irrelevant to OPM.  What the Agency is doing may well indicate “proof” as to other issues — i.e., inability to accommodate; acknowledgment that certain essential elements of one’s job is not being performed, etc. — but it does not prove that an individual is unable, as a result of a medical condition, to perform all of the essential elements of the job.  Only a doctor can do that.

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

Medical Retirement Benefits for Federal & Postal Employees: What the Agency Can Do

It is always striking (and suspicious, of course) when an individual tells me that his or her Agency has said that they will “OK” the Federal disability retirement application.  I always remind the individual that it is not the Agency; rather, it is the Office of Personnel Management which approvals or denies an application for Federal Disability Retirement benefits under FERS or CSRS. 

In many ways, the Agency attempts to assert for itself greater influence and impact than it really has.  I try and remind people all the time that a Federal Disability Retirement application is a medical retirement application — it is not an Agency retirement application; it is not a Supervisor’s disability retirement application; it is not up to the Human Resources’ Department of the Agency. 

The ultimate arbiter of the entire process is the Office of Personnel Management; and the criteria for eligibility is based upon a set of statutory requirements, which must be met by a preponderance of the evidence; and the overwhelming focal emphasis concerns the medical eligibility. 

Agencies are too often given too much credit for the success or failure of a Federal Disability Retirement application under FERS or CSRS.  In my view, the influence, input and power of an agency is almost always overstated.

Sincerely,

Robert R. McGill, Esquire