CSRS & FERS Medical Disability Retirement: Supervisors, Performance, and Other Matters

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS (although the latter is increasingly becoming a rarer animal, almost to the point of extinction, and has been recently annotated on the “endangered species” list), the concern of many Federal and Postal employees often centers around past performance reviews (a history of “outstanding” performance, etc.), the potential statements of the Supervisor on an SF 3112B, and similar issues.

What the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits fails to understand, is that the reason why he or she has reached that critical juncture where Federal Disability Retirement must be considered, is tied directly to that long and commendable history of outstanding performance.

To put it bluntly, the Federal or Postal employee who has done his or her job so well over the years, has killed him/herself in doing it.  That is why the medical condition has not improved; that is why the progressively deteriorating process, whether of a physical nature or of a psychiatric bent, has reached its critical mass, and one cannot go on in the same manner, any longer.

It has come to a point of a necessity to file for Federal Disability Retirement benefits.  It matters not what one’s history is; if one cannot perform one or more of the essential elements of one’s job, then it is time to file; regardless of what one’s performance history is, or what one’s Supervisor’ Statement may potentially reflect.

Sincerely,

Robert R. McGill, Esquire

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

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

OPM Disability Retirement: Interaction with EEOC & Other Legal Processes

I am often asked if other legal processes already filed — an EEOC Complaint, a corollary adverse action being appealed, etc. — will have an impact upon a Federal Disability Retirement application.  My general answer is, “No, it will not have an effect upon filing for Federal Disability Retirement.”  The second question which often follows, is:  What if the EEOC filing contradicts the Federal Disability Retirement application?  While the full answer to such a question will differ from case to case, depending upon the peculiar and particular circumstances of each individual case and application, my standard response to the second question will often contain a responsive query:  Have you ever heard of an attorney speaking out of two or three (or four) sides of his mouth?  As attorneys, we make multiple (and sometime contradictory) arguments all the time.  I am not concerned with the factual or legal arguments in a concurrent/parallel EEOC case; my job is to make sure that my client obtains a disability retirement — and if it somewhat contradicts the arguments made in an EEOC complaint, so be it — for, after all, I’m merely an attorney, and such inherent contradictions only prove the fact that lawyers have at least four sides to every mouth.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Actions from the Federal Government or the Postal Service

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor’s Statement) — the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that “last parting shot”. Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree — especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement.

As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment — with the emphasis upon the term “medical”. Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor’s Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely,

Robert R. McGill, Esquire