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

Early Retirement for Disabled Federal Workers: Responding to an OPM Denial

“Fairness” is a term which is often thrown about freely, indiscriminately, and without thought, when an individual believes that he or she has been wrongly treated.  But an objective analysis of whether or not a particular type or mode of treatment of an individual is justified or not, should be determined by the criteria which has been previously applied.  

In order to accomplish this, there obviously has to exist a “criteria” to begin with.  The necessary precondition of an application of a criteria, in order to determine “fairness” in a given circumstance, should be self-evident.  Thus, in the world of sports, a charge of “unfair play” should be easily determined by looking at the predetermined rules of the game, whether such rules were properly interpreted and applied, and coming to a conclusion based upon whether such rules were followed.  Where there are no “rules” of the game, however, it becomes more difficult — both in alleging “unfairness”, as well as in determining how to analyze a violation of — of what?  Precisely.  

In responding to a denial of a Federal Disability Retirement application from the Office of Personnel Management, whether under FERS or CSRS, there is obviously the legal criteria of eligibility which one can point to.  But if the Office of Personnel Management “adds” to the legal criteria, or otherwise includes in its denial substantive legal jargon which has no applicability in a Federal Disability Retirement case, what is one to do?  

Some denials received from the Office of Personnel Management are fairly simple and straightforward; others, however, can encompass seemingly complex reasons and rationale rising to the level of complicated incomprehension, bundled in a mass of conundrums which puzzle even a legal expert.

To make matters worse, the author of such a denial is not the one responsible for the next level of review.  Instead, the denial from OPM is kicked over to the “Reconsideration Stage” Case Worker.  This can be both a blessing as well as a curse, of course.  Whether the former or the latter, one is left with the complex conundrum of calamities — an incomprehensible denial which must nevertheless be answered.

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

Federal and Postal Service Disability Retirement: Don’t Act with Haste

This time of year can result in Federal and Postal employees acting “in haste” — of resigning; of receiving a denial on a disability retirement application and not properly making a decision for one’s future or self-interest; of responding to Agency actions in ways which will not benefit one’s future.  The “Holidays” can be a trying time; those considering filing for disability retirement under FERS & CSRS should take the time to consult with an attorney to review all of the options open, before making any hasty decisions which may impact one’s future and career with the Federal Government.  Remember, even if the Agency is making noises to file an adverse action during this time, or is about to place you on a PIP, or is calling you in for an “investigative interview”, there is always time to respond, and in most cases, a request for an extension of time to respond should, and will, be granted.  Retaliatory agencies and supervisors love to use this Holiday Season, when time is shortened, to file all sorts of adverse actions.  Don’t respond in an inappropriate way; consult an attorney.

Sincerely,

Robert R. McGill, Esquire