Disability Retirement for Federal Workers: Annotating the Record

It is always important, in contemplating a Federal Disability Retirement application either under FERS or CSRS, to annotate the record where possible.  Remember that the Merit Systems Protection Board has previously found that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM , 109 MSPR 529 (2008).

As such, in preparing a Federal Disability Retirement application, a successful outcome may depend upon a “war of memorandums” between the applicant and the Agency.  If the Agency is attempting to remove a Federal or Postal employee based upon “performance” or “conduct” issues, without regard to any medical evidence submitted to the agency, and thereby attempting to characterize the absences, the lack of productivity, warnings and suspensions as mere intransigence and insubordination, then it is important to annotate the record and memorialize the contacts, the submissions, etc., by writing confirming emails, letters, memorandums, etc., where the agency was informed about the medical conditions, which medical documents were submitted, to whom they were submitted, and even the content (perhaps in summary form) of what the doctor has stated.  The only way to remove a shadow of a doubt is by allowing the sunlight in (sorry for the trite analogy/metaphor).

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Why Agencies Act

I am often asked why the Federal Agency will go out of their way to remove an individual based upon every conceivable reason other than the true and underlying reason:  One’s medical inability to perform the essential elements of one’s job.  Despite submitting medical reports; despite a Supervisor’s knowledge of the daily pain and suffering of an employee; despite it all, the Agency will often focus upon the employee’s conduct or lack of work production, or upon the number of absences; then place the employee on a Personal Improvement Plan (PIP) ; refuse to grant LWOP; then propose to terminate the individual based upon all of the myriad actions they have taken.  

When the query arises as to why the Agency will not just propose the removal based upon his or her medical inability to perform the job, the answer is often:  We are not a medical facility and we cannot make that determination.  But that is normally not the underlying, driving reason.  It is more often than not because agencies have a single-track mind to act in a self-determined manner.  Ultimately, however, when one files for Federal Disability Retirement benefits under FERS or CSRS, while a removal based upon one’s “medical inability to perform one’s job” is the most “helpful”, other forms of removals can actually enhance the Federal Disability Retirement application, by focusing upon the fact that the negative performance indicators can only be explained by the parallel medical conditions which were clearly impacting the employee.  Sometimes, that takes a little more effort — such effort which the Agency failed or refused to engage in.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Be Careful

As part of a Federal or Postal employee’s process of filing for Federal Disability Retirement benefits, one may have to negotiate, respond to, or fight against an unfair Agency’s attempt to remove the Federal or Postal employee — based upon factors other than what is truly the underlying basis — of his or her medical inability to perform the essential elements of the Federal job.  For whatever reason — of incompetence, of pure unkindness, of personal vendettas, etc. —  Agencies will often refuse to remove an individual for the administratively neutral reason (by “neutral”, to mean that it is not an “adverse” action) of “medical inability to perform the essential elements of the job”.  Instead, they will often revert to other reasons:  “excessive absences”, “AWOL”, “excessive LWOP”; “violation of a PIP”, and other such overtly misleading reasons.  When, the truth of the matter is/was, the Federal or Postal employee was sick, has a medical condition, and could not come to work because of medical reasons.  Be careful.  Fight the removal action.  Don’t accept the unfair basis.  File an appeal with the Merit Systems Protection Board.  Remember, a removal for medical inability to perform the essential elements of the job can help you get an approval in a disability retirement application.  Better yet, hire an attorney who will fight for you.

Sincerely,

Robert R. McGill, Esquire