Medical Retirement Benefits for US Government Employees: Termination

Termination for the Federal or Postal employee should generate an administrative personnel action reflected in an SF 50 or PS Form 50, showing the date of the action, the nature of the issuance and the reason for the administrative process which is initiated and culminated.  Without it, technically no such action occurred.  However, there are cases where such a form has not been produced.

Further, such a personnel initiation is rarely issued in a vacuum; for a Federal employee to be terminated, there are certain procedural hurdles which are normally provided — an issuance first of a proposed termination, and the basis for such a personnel action, and one to which the addressee has a right to respond to within a specified period of days or weeks.  Thereafter, consideration must be given by the Agency in the response, whether verbal, written or both, given by the Federal or Postal employee.

Subsequently, when a termination is effectuated, an SF 50 or a PS Form 50 will be generated.  From that date of termination, the Federal or Postal employee has up to one year to file for disability benefits.

If such filing occurs after 31 days of the official termination date, then the application for Federal Disability Retirement benefits must be submitted directly to the U.S. Office of Personnel Management in Boyers, PA.

If prior to 31 days, it can be processed through one’s former agency — although, such a filing should be carefully monitored, as one’s former agency may not process it with any urgency, and in the event that it is not forwarded to OPM within the other 11 months and some-odd days left, there will be a question as to whether it was timely filed at all.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Misreading the Law

As the old adage goes, a little bit of knowledge is a dangerous thing.  The Bruner Presumption is one of those legal tools which is often misunderstood and misapplied. The legal presumption stems from a Federal Circuit Court of Appeals opinion which basically declared (among other things) that when a Federal or Postal employee is separated from Federal Service for his or her medical inability to perform one or more of the essential elements of one’s job, that there is a “presumption” that the Federal or Postal employee is entitled to Federal Disability Retirement benefits from the Office of Personnel Management.  

Does this make it a certainty that one will receive an approval of a Federal Disability Retirement application from the Office of Personnel Management?  No. Does it enhance the chances of obtaining an approval from the Office of Personnel Management?  Maybe.  

One must remember that the Office of Personnel Management, at least for the first 2 stages of the process, does not assign attorneys as Case Managers to review a Federal Disability Retirement application.  As such, relying too heavily on the “Bruner Presumption” would be a mistake.  Further, to wait for the agency to terminate you based upon your medical inability to perform your job so that you can argue that you “have the Bruner Presumption” would be foolhardy.  It is a legal tool.  In order to use it, you must apply it in the right manner.  It would be like using a screwdriver to open up a can of peas.  As another old adage goes:  “Leave it to the professionals“. 

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Back Pay

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to focus upon the first of the three — preparing.  Preparation often involves thought, reflection, and contemplation.  Formulation requires action; and filing and the time thereafter requires patience.  

In preparing, one must address the issue of how best to survive the lengthy process — does one have sufficient accrued sick leave?  Can one survive without pay and take LWOP during the (potentially) 8 – 10 month process?  Will one be allowed to continue to work, even in a light-duty capacity?  If the latter, then it should be kept in mind that when a Federal Disability Retirement application is approved, such an approval will provide for back pay all the way back to the last time a Federal or Postal employee was paid by the agency — whether it is a dollar, a hundred dollars, or a full paycheck.  

Thus, while acceptance and receipt of donated leave is often desirable, the time of having taken LWOP for any period of time will be negated with the last day of pay.  For example, if a Federal or Postal employee takes several months of LWOP, then accepts a pittance of donated leave, that time of LWOP is lost — for, again, back pay is paid only to the “last day of pay”.  Considerations to be reflected upon when preparing to formulate and file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Agency, FMLA and LWOP

Because filing for Federal Disability Retirement is a process which may take 6 – 8 months, and sometimes longer, there is always the question of what the Agency will do during this time.  Of course, a Federal or Postal employee will often continue to work for as long as possible, and for as many days during each enduring week as possible, in order to survive economically during the process of preparing, formulating and filing a Federal Disability Retirement application.  The medical condition itself, however, will often dictate the feasibility of attempting to continue to work.

During this period, a Federal or Postal employee may have limited options — especially when Sick Leave and Annual Leave have been exhausted.  Protection by filing under the Family and Medical Leave Act (FMLA) will accord temporary protection and a buffer against a demanding agency.  A further request to be placed on LWOP beyond the 12 weeks which FMLA will allow for, will often be granted at the discretion of the Agency.

If an agency places one in AWOL status, such an action by the Agency should be countered with documentation from one’s doctor which justifies the continued absence of the Federal or Postal employee.  Unfortunately, there is often no clear answer to the question, “What if my agency fails to cooperate while I am filing for Federal Disability Retirement?”  There are only responsive steps to take in order to protect the ultimate goal — that of obtaining an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The “Almost” Medical Inability to Perform Termination

Often, Agencies will proceed to propose a removal of a Federal or Postal employee based upon reasons which clearly “imply” one’s medical inability to perform one or more of the essential functions of one’s job, but explicitly, based upon other stated reasons — e.g., “Failure to Maintain a regular work schedule” or “Being Absent Without Official Leave (AWOL)“.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state:  “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under CSRS or FERS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application.  For, that is the ultimate goal:  to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement: Federal Agencies

Why do some Federal Agencies (and the Postal Service) act in non-supportive, negative ways, while others go out of their way to support their employees?  The answer to such a question essentially is as complex (or simplistic) as individuals themselves; for agencies are made up of individuals, and the reaction of an agency is often a reflection of the individuals who lead the agencies. 

When it comes to an employee filing for Federal Disability Retirement, this is often important to understand, because while Agencies (i.e., supervisors) cannot ultimately block a Federal Disability Retirement application under FERS or CSRS, they can sometimes make the process more difficult for the applicant, by engaging in certain tactics (e.g., placing a person on AWOL as opposed to LWOP; delaying the writing of a Supervisor’s Statement; the H.R. Department being obstructionist, etc.) 

In dealing with an Agency, it is important to remain courteous, but not weak; professional, but not a “pushover”.  Further, it is important, where possible, to have an attorney deal with the Supervisor or the H.R. Department as a “buffer” between the Applicant and the Agency, to de-personalize the process.  When Agency Supervisor’s take things personally, problems arise.  It is as if all of the pent-up angers of accumulated personal slights come roaring to the forefront.  One should always try and avoid such personalization of the process, and allow for the smooth transition of the employee to becoming a Federal Disability Retiree.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Termination (Part 2)

There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.  Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.  The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.  As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire