Postal and Federal Disability Retirement: Agency Removal & Resignation

Whether an Agency is willing to wait while a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS, or if removal becomes the preferred action, is always a concern to the Federal or Postal employee.

Often, no matter what medical documentation is submitted as documentary proof of one’s inability to come to work, an Agency will insist that a Federal employee is “AWOL” because of some minutiae or technicality in the paperwork provided.  Regardless (no, I will not use the grammatically incorrect non-word, “irregardless”, which is a combined double-negative of the suffix and prefix, leaving the root word “regarding” intact, thereby making irrelevant the necessity of both the prefix and the suffix) of the Agency’s actions, it is important for the Federal or Postal employee to proceed with his or her Federal Disability Retirement application.

Attempting to predict how the agency will act or react; waiting upon an Agency’s response — ultimately, one must proceed affirmatively and not be concerned with what the Agency will or will not do.  Concurrently, however, the Federal or Postal employee should respond to an Agency’s removal actions.

Sometimes, if in fact the Agency is able to produce sufficient “evidence” to justify an adverse removal action (lack of sufficient notice; lack of medical justification submitted in a timely manner; violation of PIP provisions; violation of previously-imposed leave restrictions, etc.), an offer of resignation in order to maintain the official personnel file “clean” of any such adverse actions, is a reasonable course to take, both for the Agency as well as for the Federal or Postal employee.

More often than not, the Agency will be responsive to opening a discussion for a mutually beneficial removal based upon one’s medical inability to perform the essential elements of one’s job.  Since the same medical documentation to prove one’s medical disability retirement application should be sufficient to justify such a removal, the timing of such a removal could not be better.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: RIF

If a person is separated from Federal Service pursuant to a Reduction-in-Force, can he file an application for Federal Disability Retirement benefits under FERS or CSRS?  As with all such questions, “It Depends”.  If a person has a medical disability prior to the separation from service, and the doctor will state that prior to the separation, the Federal or Postal employee could no longer perform one or more of the essential elements of the job, then the answer is that he has a Federal Disability Retirement case.  Whether from a RIF or for some other reasons is ultimately irrelevant; the point is that one must ultimately show that prior to separation from Federal Service — any type of separation — the connection between the medical condition and the type of job one has, must be made.  Remember, further, that during the time of Federal Employment, if a person was receiving OWCP partial disability payments for an hour, two hours, three hours, per week or per day, that is further evidence that the Federal or Postal employee was unable to perform all of the essential elements of one’s job.  For, as with any full-time Federal sector job, being able to work 8 hours per day, 5 days per week, is part of the essential element of such a job.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Years Later, Still On the Rolls of the Agency

The Postal Service is especially guilty of this, but many other Federal (non-Postal) agencies are also “negligent” on the issue of keeping an injured worker on the rolls for years on end.

Often, such “non-existent” Federal and Postal workers receive OWCP payments, or simply go on with their lives while unofficially still a Federal or Postal employee.  Never having been separated from Federal or Postal service, such individuals are still eligible for filing OPM Disability Retirement benefits under FERS or CSRS because the 1-year statute of limitations has not been violated.

So long as a Federal or Postal employee files for Federal Disability Retirement benefits under CSRS or FERS within one year of being separated from service, you have met the statute of limitations.  If you were never officially separated from service, then your 1-year deadline never began.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When to File

I still get calls by people who state that (A) they are waiting for a year before they are going to file for FERS or CSRS disability retirement, (B)  It hasn’t been a year since they have been on LWOP, but it almost will be, or (C) They are waiting to be terminated so that their year will begin.  Quiz:  Which of the above (A, B or C) is the correct basis upon which to decide to file for Federal Disability Retirement benefits?  Answer:  None of the Above. 

Since OPM disability retirement can take anywhere from 6 – 8, sometimes 10 months to get (beginning the time-sequence from the time a doctor is contacted to provide a medical report, to putting the entire packet together, to getting it to the Agency Human Resources Personnel, to getting it to Boyers, PA, to getting it to Washington, D.C., to getting an initial approval, etc.), it is:  A.  Not a good idea to “wait a year” because there is no reason to wait; B. You don’t need to wait a year on LWOP to file for Federal Disability Retirement benefits, and:  C.  You don’t need to get terminated, or separated from Federal Service, in order to file for Federal Disability Retirement benefits. 

Let me re-emphasize:  The “1-year rule” has to do with the following:  A.  You have one (1) year from the date you are separated from Federal Service to file for disability retirement — but you can file at any time, whether separated or not, as long as it is not after 1 year after being separated from service.  B. Your medical condition must be expected to last for a minimum of 12 months — but your treating doctor should be able to tell quite easily whether or not the medical condition for which you are being treated will last that long — normally within a couple of months of treatment. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Creativity & Objectivity

The Applicant’s Statement of Disability is a very personal statement; that is precisely why when I take on cases at the Second (Reconsideration) Stage, or at the Third (Merit Systems Protection Board) Stage, I have an opportunity to read heart-felt, personal, and very “emotional” statements written by the individual applicant.  This is not to be negatively critical of such statements — such personal, emotionally-charged statements can be very effective.  On the other hand, it is precisely because the Applicant who writes such a statement — about his or her own personal engagement and experience of the disability — that he or she is unable to provide an objective perspective.  It is very difficult to “stand outside” of one’s self and write about one’s self.  Again, this is not a negative criticism — it is simply what it is.  As an aside, I have had many of my clients who read my interpretive statement of disability, which I craft based upon multiple sources (i.e., by speaking to the client; by having my client fill out a short questionnaire; by reading the medical reports and records, etc.), who tell me later that, yes, the statement of disability accurately reflected their state of medical disability, and further, that it made him or her realize for the first time how “bad off” they were.  It takes a perspective of objectivity to creatively — and accurately — depict one’s own medical disability and the impact of such disability upon one’s life.  For this, a third party — often an attorney — is needed.

Sincerely,

Robert R. McGill, Esquire