FERS & CSRS Disability Retirement for Federal and USPS Workers: To Be or …

Often, the question is asked whether or not it is advisable to “just resign” from one’s Federal or Postal employment, and whether such resignation would impact one’s ability to file for, and obtain, Federal Disability Retirement benefits from the Office of Personnel Management, whether under FERS or CSRS.

Such a question actually contains multiple sub-questions, which often need to be extrapolated, dissected and bifurcated, then answered independently.  Then, upon answering such questions separately, they can be reconstituted to provide a greater picture.  In answering any or all such questions, however, the proper context of each case — for each case is unique in their facts, circumstances, and potential impact upon future decision-making processes — must be revealed, identified, analyzed and properly addressed.  

Whether the Agency is making any “noise” of proposing to remove the Federal or Postal employee, and the basis of such removal; whether they are open to suggestions or negotiations pertaining to the basis of the removal; whether the Federal or Postal employee has already secured a doctor, a medical narrative report, and proper substantiating medical documentation which shows that, prior to such removal or resignation, the Federal or Postal employee could no longer perform one or more of the essential elements of one’s job, etc. — all of these, and many more besides, are questions which must be considered before one takes the finality of the leap which determines whether to be, or not to be, a Federal or Postal employee as of a date certain, and its impact upon one’s ability to secure the benefit known as “Federal Disability Retirement” benefits under FERS or CSRS from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Disability Retirement: Discretionary Decisions

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, there are obviously the “basics” which one must submit, in order to meet the legal standard of proof of preponderance of the evidence.  

Thus, submitting “adequate” medical documentation which formulates a nexus between the medical condition upon which the Federal Disability Retirement application is based, and the essential elements of one’s job; writing the descriptive narrative to complete the Applicant’s Statement of Disability (SF 3112A), and filling out the other standard forms in order to meet the minimum requirements, are deemed “non-discretionary”, in that one does not have the choice of filing such paperwork  — it is a requirement.  

However, certain other documentation can be designated and categorized as “discretionary” —  whether to include certain medical conditions, and therefore medical documentation which bears upon the particular medical condition; whether to include paperwork from one’s OWCP, Department of Labor filing; Veteran’s Administration ratings, findings, medical documentation; Social Security Disability paperwork; additional statements from co-workers; Private Disability Insurance paperwork, etc.  

“Discretion” implies freedom to act or not act, but the problem will often arise, “In what context”?  Discretion is a wonderful, liberating position to be in; acting effectively in a discretionary manner requires research, and knowing the relevant criteria to apply in making a proper decision; and an understanding of the laws governing Federal Disability Retirement in making the “right” discretionary decision.  

Using discretion in making discretionary decisions is the key to obtaining a positive discretionary determination from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: SSDI Approval as a Special Case

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there are multiple discretionary decisions which must be made in preparing a paper presentation to the Office of Personnel Management.  For instance, should determinations made by Second-Opinion or Referee doctors in a case which concurrently involves OWCP issues be included in the submission?  Should VA ratings be part of the packet?  Should determinations by a private disability insurance company be included? Should a determination by the Social Security Administration — which often will come about when the packet has already been submitted to the Office of Personnel Management while awaiting a decision — be forwarded to OPM?  

In proving one’s eligibility for Federal Disability Retirement benefits under FERS or CSRS, one must affirmatively prove, by a preponderance of the evidence, that one is eligible for the benefit.  That leaves much of the decision-making process regarding what information is relevant, helpful, pertinent and substantive, up to the Federal or Postal employee and/or his attorney to decide.  There are multiple details, and it is often in the minutiae and details which will win or lose a case.  Should all medical conditions be made a part of the packet?  

These are all discretionary issues to be decided, with the possible exception of Social Security.  Inasmuch as SSDI must be filed, and inasmuch as the statutory mandate is that SSDI and a FERS Disability Retirement annuity must be offset if both are approved, an approval by SSDI is a special case which is non-discretionary.  Not only must OPM be informed of its approval; under the case-law, it must be considered in the process of deciding upon a Federal Disability Retirement case.  Nevertheless, it still remains merely persuasive authority, and not determinative.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Discretionary Determinations

Reviewing medical documentation often involves a discretionary determination in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  Relevant documentation should be filed as an attachment in support of a Federal Disability Retirement application; sometimes, medical reports, notes and records which are from specialists or referral doctors, contain information which is helpful, irrelevant, or detrimental to an application, and determinations as to whether to file it or not is a matter of discretion.  

It is the responsibility of the Federal or Postal employee to prove, by a preponderance of the evidence, that one is entitled and eligible for Federal Disability Retirement benefits under FERS or CSRS.  Meeting the criteria of eligibility is a matter of some latitude; determining what evidence to include involves a certain amount of discretion; in either case, one must affirmatively prove one’s case.  

Thus, FMLA paperwork previously completed by the doctor may have addressed a particular issue for a specific timeframe; OWCP forms previously filled out by the doctor may pertain more to a particular time-period or for the issue of causation, etc.  In the totality of the picture of one’s history of medical conditions, one must utilize a discretionary sense of wisdom in determining which medical evidence will be helpful, and which may potentially hinder.  It is never an exact science; but then, science itself is no longer an exacting endeavor.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Workplace Issues

The reason why workplace issues, whether having any relevance in a Federal Disability Retirement application or not, continue to be insidious in their persistent appearance and stubborn insistence upon dominating an Applicant’s Statement of Disability, is because they are often perceived to be the originating cause (or so it is often thought to be by the Applicant who is preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS) of a medical condition.

Whether the age-old question of the “egg before the chicken or the chicken before the egg” is answered, and in what way, is often the wrong approach to take.  More often than not, when a medical condition begins to progressively deteriorate a Federal or Postal employee’s health, and the impact upon one’s ability/inability to perform the essential elements of one’s job begins to manifest itself to supervisors, coworkers, managers, etc.; at about the same critical juncture, harassment — or the perception of harassment — begins to occur. Such workplace issues then begin to exponentially quantify and exacerbate, feeding onto each other:  the workplace issues begin to exacerbate the medical condition; the stress-levels rise; soon thereafter, agency efforts to protect itself begin to get triggered — counseling letters on leave usage, sick-leave restriction, placement of a Federal or Postal employee on AWOL, 14-day suspensions, placement on a PIP, all begin to erupt.

The key in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, however, is to have the self-discipline to identify which workplace issues are relevant to bring into the arena of an OPM disability retirement application. Discipline in such matters is a difficult measure to undertake; however, it is a critical step to recognize and initiate, bifurcate and separate, and where irrelevant, to excise and discard, when preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Issue of Discretion

A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.  

In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc.  The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.  

A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue?  As with all such hypotheticals, the answer to all of the above is:  It all depends…  

Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach.  Sometimes, making a passing reference to the collateral issue may be appropriate.  In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone.  In any case, such discretionary decisions should be made with the advice of an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Approaches & Decisions (Continuation)

This is not to say that the Reconsideration Stage of the process, in the stage where there has (obviously) been an initial denial, should not retell a narrative; it is to simply point out the differences in where the emphasis should be — or, rather, where I place the different emphasis based upon the stage. 

How I approach each stage, in general terms, is as follows:  The Initial Stage (the initial application for Federal Disability Retirement benefits under FERS & CSRS) focuses upon the narrative of the applicant — the description of the medical condition; the kind of job and the essential elements thereof; the interaction and impact of one upon the other, as well as some initial legal arguments.  If it is denied, then the Reconsideration Stage has a “shift of paradigm” on what should be emphasized.  The Office of Personnel Management will often question the adequacy of the medical documentation.  In that case, one needs to respond in a two-pronged attack:  (perhaps) an updated medical report, but concurrently, an aggressive legal attack upon the legally untenable position of the denial.  This methodology sets up for the Third Stage of the process, in the event that it becomes necessary — the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire