Federal Worker Disability Retirement: Taking a Trickle of Leave and Back Pay Issues

When a Federal or Postal employee files for, and is approved for, Federal Disability Retirement benefits under FERS or CSRS, the disability retirement annuity which one receives extends back to the “last day of pay” of a Federal or Postal employee.  It matters not what “kind” of pay; the Office of Personnel Management merely receives the date of the Federal or Postal employee’s last day of pay from the Agency, then gives back-pay back to that date which the Agency determines that he or she was last paid.

Thus, if a person was on LWOP for a six-month period while awaiting for a decision from OPM on his or her Federal Disability Retirement application, then decided to use up the last couple of hours of Annual or Sick Leave and receive a nominal amount — in that scenario, the back pay would extend only to the payment received for the Annual or Sick Leave, and the Federal or Postal employee would lose any back-pay for the six-month period of LWOP.

With this in mind, it is important to plan — to either remain on LWOP during the entire period of waiting for a decision from OPM, or if one continues to work or to receive payments for Sick or Annual Leave, to make it worth one’s while (i.e., to continue to receive a payment rate equal to what the rate of pay for back-pay would be, which is 60% of the average of one’s highest three consecutive years of salary the first year, then 40% every year thereafter).  Just some thoughts.

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 FERS or CSRS, 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

Medical Retirement Benefits for US Government Employees: Filing within the Statute of Limitations

Under Federal Disability Retirement for FERS & CSRS, a Federal or Postal employee must file for the benefits within one (1) year of being separated from Federal Service. Another way to put it, is that a Federal or Postal employee must file within a year after being terminated as an employee from the Federal Government or the U.S. Postal Service.  Thus, the 1-year Statute of Limitations does not begin from the “date of injury”, or from the date a person went on Sick Leave, Annual Leave, or Leave without Pay (LWOP).  Rather, the tolling of the Statute of Limitations begins when a person is separated from Federal or Postal Service.  

Thus, for example, if a Postal employee continues to receive “zero-balance” paychecks, it is a good indicator (though not a certainty) that the Postal Worker has not been separated from service, but is merely in an LWOP status but still “on the rolls” of the Postal Service.  In most cases, the Federal employee will be informed that he or she is being separated from Federal Service, through a process of personnel actions, resulting in an SF 50 being issued informing the Federal employee of his or her separation from Federal Service.  From that point on, the Federal or Postal employee has one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS.  

Remember, if you don’t file for it, you can’t make any arguments about your Disability Retirement application.  While there are limitations as to amending or supplementing a Federal Disability Retirement application after it has been file, there is not a scintilla of a chance to argue, amend or supplement if you don’t meet the minimum requirement — i.e., filing for it within the 1-year Statute of Limitations.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Right Questions

Often, a person who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS doesn’t know the “right question” to ask in order to make a proper decision.  Because a medical condition often leaves a person with daily and profound fatigue  (both physical and cognitive), it is enough just to get through the day, come home and attempt to recuperate and regain enough strength to try and make it back to work the next day.  Then, of course, there are the financial worries — whether or not the disability annuity will be enough to support a family; whether a person will be able to supplement his or her income with a part-time job in this tough economy; or whether Social Security Disability benefits can be approved and, even with the offset, allow for enough income for some semblence of financial security. 

All of these questions — or concerns — are clearly legitimate ones, and provide a good foundation for determining the viability for filing for Federal Disability Retirement benefits under FERS or CSRS.  But there are others, also:  What will happen if you don’t file for disability retirement benefits?  Will you be placed on a PIP?  Will you receive an unsatisfactory performance rating?  Will you last until retirement age?  If you last until retirement age, will you have the health necessary to enjoy your retirement?  Is it time to start a small business venture in this tough economy, and if so, when the economy begins to recover, will your small business grow with a growing economy?  Will your supervisor support your extended absences or over-use of sick leave for much longer?  Is the work that is getting backed up placing more pressure on you, such that it is exacerbating your medical condition further?  Think through the questions seriously.  It may be time to file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

For whatever reasons, Federal Agencies rarely accommodate an individual who has a medical condition which impacts one or more of the essential elements of one’s job.  Whether the Supervisor is too busy to craft a viable accommodation plan, or whether the Agency is simply following the standard thoughtless response of the Federal Sector in general, the truth is that Agencies rarely, if ever, provide a truly viable, legally defined accommodation.  I receive calls every day from Federal and Postal employees who will state that the Agency is currently “accommodating” him/her; upon closer questioning, however, it always turns out that the term “accommodation” is being used in a non-artful, general sense, as in:  The Agency is letting me take LWOP; the agency is letting me take sick leave; the agency is letting me not travel too much; the agency is letting me…  What the agency is doing, whatever it is, is to temporarily keep you around until they decide your services are no longer needed.  That may be just around the corner, or you may be forgotten for some considerable amount of time.  Regardless, don’t be fooled; agencies rarely accommodate, and it is most likely the case that whatever “accommodations” the Federal or Postal employee believes that the Agency is providing, it does not fall under the legal definition of the term.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Don't Confuse the Standards

People who call me for advice, who are potential candidates as clients for Federal Disability Retirement benefits under FERS or CSRS, often interchangeably use terms which apply to different standards:  standards of total disability as opposed to a medical disability which impacts one’s ability to perform one or more of the essential elements of one’s job; whether a medical condition is an “accepted” disability (a concept which is often used in Social Security disability cases); whether a person can file for Federal Disability Retirement benefits even though he “hasn’t reached MMI” (“Maximum Medical Improvement”) — which is language encompassing a concept familiar to OWCP/DOL (Worker’s Comp) cases; or, on a different level, the statement that an agency has been “accommodating” an employee by allowing him/her to take sick leave, Leave Without Pay, or to “not have to travel as much” — mistakenly or loosely using the term “accommodation”, when in fact such agency actions do not constitute a legally viable accommodation, as that term is used in Federal Disability Retirement laws. 

It is the job of the attorney to correct, clarify, and otherwise explain the proper terminology and precise application of concepts in Federal Disability Retirement cases.  It is not surprising that people who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS use the various terms in error, or mix terms unknowingly — for there is alot of misinformation “out there”; it is the job of an Attorney who specializes in Federal Disability Retirement law to clarify such confusions.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case. 

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law. 

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB. 

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, as long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with generally accepted professional standards,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.  As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Time to File

A question often asked is, when is it the right time to file for Disability Retirement? Must you wait until one has been disabled for over a year? Do you have to file for Social Security first, before filing for OPM Disability Retirement? Should the Agency be notified at the beginning of the process, or some time later down the road? What is the best time to approach my doctor about getting his or her support for disability retirement? These are all “timing” questions — each important in its own right, as are all such timing questions.

Since the processing from start to finish, to obtain disability retirement benefits, may take 6 – 8, sometimes 10 months, it must be timed financially — is there enough sick leave, annual leave; should donated leave be requested? Once LWOP is taken, should one remain on LWOP throughout the entire process? As to whether one must wait for a year of being “disabled” before one can file — the answer is “no”. So long as the doctor believes that the medical disability will last for at least a year (within reasonable medical probability), one has the proper medical basis to file for disability retirement. As to filing for Social Security, the Office of Personnel Management actually only needs to see the receipt, showing that one has filed for SSD, at the time of approval of the disability retirement application. And how about notifying the Agency?

This is a question which should be decided after discussion of several factors, with one’s attorney, who may provide for proper legal advice, the potential consequences of informing the Agency, etc. Ultimately, timing questions are a matter of particular importance — particular to the situation and circumstances of each individual case. With that in mind, it is often a good idea to have the counsel of an experienced attorney in the area of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire