Disability Retirement for Federal Government Employees: The Suspect

Newspaper stories are replete with articles involving scams, dishonesty and crimes of financial improprieties; that is not surprising, given the nature of what constitutes “newsworthiness”.  Fraudulent claims involving disability applications are trumpeted loudly to reveal the disintegration of a system requiring structural integrity.  Of course, no one makes the distinction that such claims of fraud almost always involves the “other” disability system, and not the option available to Federal and Postal employees through the U.S. Office of Personnel Management, whether under FERS or CSRS.

Just as all politicians are lumped together, so the aggregation and broad-painted brushing of anyone receiving a “disability” annuity is to be expected.  But Federal Disability Retirement is a different animal from the “other” disability system, and with good cause:

First, Federal and Postal employees do not file for Federal Disability Retirement benefits until and unless it becomes a necessary option to take.  The general public cannot have it both ways: on the one hand, they complain that Federal and Postal employees have it “easy” with their Federal or Postal jobs; on the other hand, they grumble that receipt of Federal Disability Retirement benefits is taken advantage of by unscrupulous Federal and Postal employees. But if the employment itself is so easy, why would the Federal or Postal Worker take a lesser income by filing for Federal Disability Retirement benefits?  The fact is that most Federal and Postal employees work hard, and well beyond their rate of compensation, in furthering the mission of their agency or department; and filing for Federal Disability Retirement is the furthest thing from the mindset of a Federal or Postal employee.

Second, because of the reduction of income accorded by an approved Federal Disability Retirement, many Federal and Postal employees must go out and seek employment in the private sector.  Yes, they can continue to receive the disability annuity so long as they remain under 80% of what the former Federal or Postal position currently pays; and yes, the combination of both the annuity and the employment income can aggregately comprise more than what the former Federal or Postal position was paying; but that is the very attractiveness and intelligence of the incentivized system. It encourages the Federal and Postal Worker to remain productive, and to “pay back” into the system. In essence, it is a self-paying enterprise.

And, Third, because Federal Disability Retirement recognizes that the disability is tied to a particular kind of job, there is very little room for abuse within the system.  One is encouraged to remain productive, and such an incentive allows for the system to remain economically viable.

In these difficult economic times, people are often afraid of considering filing for “disability” benefits; but for Federal and Postal employees who have given their time, life and (often) health in the pursuance of an agency’s mission, being treated like a “suspect” in a broadly-painted indictment is not only unfair, but reprehensible.  The Federal and Postal Worker has nothing to be ashamed about, and the fact that the general public may harbor some hidden resentments during these trying economic times, is merely a reflection upon the often petty nature of humanity, and not a true gauge of the work ethic of Federal and Postal employees throughout the country.

Sincerely,

Robert R. McGill, Esquire

 

Federal Worker Disability Retirement: The Impending PIP

The Performance Improvement Plan (otherwise known by the acronym, a “PIP”) is the formal imposition of an administrative procedural process to “assist” the employee into improving his or her specific work requirements, or for modification of certain behavior issues.

From the Federal Agency’s perspective, it invokes a paper trail which will justify additional future actions, if necessary.  From the Federal employee’s viewpoint, it should serve as a warning that unknown other conversations and discussions have been ongoing, and the PIP is merely a surface revelation, with much underworld life and activity unrevealed but indicated by the issuance of the PIP.

If a medical condition is a large part of the reason why underperformance and poor performance justifies the issuance of a PIP, then revelation of the medical condition in response to the PIP should be considered.

Concurrently, because a PIP is an open and declared step towards ultimate and likely termination — especially when the physical or mental condition will continue to prevent the Federal employee from being able to meet the requirements of the PIP — it is a good idea to begin the process of preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, submitted to the U.S. Office of Personnel Management.

Being a sitting duck merely means that you are the target in a shooting gallery; before your turn comes up, it serves the Federal and Postal employee well to chart one’s own course before it is determined for you.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Acts of Futility

It was Heidegger who observed that our everyday lives were merely distractions in order to avoid the ultimate encounter with our own mortality — a revelation too profound to contemplate, and thus we engage in meaningless and monotonous projects in order to shift our focus away from the stark reality of life and death.

It is indeed the human species which continually and perennially embraces various acts of futility, despite irrefutable evidence that such actions lead to no fruitful or purposive outcome.  But to cease such engagements would be to stop and think; and reflection would mean a forced quietude in which contemplation upon the state of one’s being would be unavoidable; and from there, the vast void of nihilism might encroach, and so perhaps resumption of purposeless, repetitive treadmill-like engagements are best for sanity and survival.

For Federal and Postal employees who suffer from medical conditions such that one is prevented from performing one or more of the essential elements of one’s job, however, contemplation in filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is a necessity which cannot be avoided.   Further, the greatest singular act of futility in preparing a Federal Disability Retirement application is to wait upon an agency to act; for, as agencies exist in order to appear to act with purpose, but where inaction allows for greater exigencies and justification for existence; as such, agencies rarely act, and when they do, they do so to the detriment of the Federal or Postal employee.

Thus, the hard rule should always be:  be proactive and do not wait for an agency to accommodate or otherwise assist you.  Distractions and diversions are fine in life; but when the necessity arises to attend to one’s medical needs, you need to act, and act in the best interest of one’s own being.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Historical Problem

Ultimately, before the Federal or Postal Worker considers filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, a number of factors need to be considered, including (but not limited to) the following:  Can I last until regular retirement?  Will continuation in the job result in further deterioration of my health?  Will my absenteeism or subpar performance result in adverse actions being initiated, including imposition of leave restrictions, a PIP, further disciplinary measures such as a suspension, or ultimately a removal?  Is waiting going to make things any better?  Do I have a doctor who will support my Federal Disability Retirement application sufficiently?

The history of most applicants who are filing for Federal Disability Retirement benefits, whether under FERS or CSRS, is replete with unanswered questions and issues ignored or unaddressed.  But when the convergence of a medical condition with a Federal agency or the U.S. Postal Service comes to fruition, the clash and collision between appearance and performance will often force the questions to be answered.

Waiting for things to occur will normally not solve the historical problem; being proactive, directly confronting undesirable questions, and taking the necessary steps to secure one’s future — these are the foundational steps necessary for a successful Federal Disability Retirement application, and the key to age-old questions which harken back to the problem of history, so that history may not repeat itself.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Social Isolation

Federal and Postal employees who contemplate filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, often feel a profound sense of isolation.

First, of course, the agency itself has a tendency to treat the medically disabled Federal or Postal employee as a pariah; that, somehow, suffering from a medical condition is within the control of the sufferer.

Then, if the agency is informed of the very intent to file for Federal Disability Retirement benefits, then certain consequential actions often follow:  a PIP may be imposed; leave restrictions may be enforced; an adverse action may be proposed, including a removal — often based not upon the medical condition, but all sorts of “other reasons” that have been tabulated, memorialized and recorded, by supervisors and fellow co-workers.  Yes, there is FMLA; yes, the Federal or Postal employee may file an EEO action or other potential lawsuit; but such counteractions fail to mitigate the sense of isolation and separation that the Federal or Postal employee feels, from an agency which he or she has expended one’s life and energies to advance for the cause of one’s career.

Third, when the Federal or Postal employee finally files with the U.S. Office of Personnel Management, OPM’s non-responsive attitude further exacerbates the sense of isolation.  A sense of closure is what one desires; of being able to obtain Federal Disability Retirement benefits, then to move on with life into the next phase of a vocation, the next step beyond.

One should always remember:  It is the very act of filing which is the first step in overcoming the profound sense of isolation; for, the act itself and the decision to move beyond, is the affirmative indicator that there is light at the end of the proverbial tunnel.

Sincerely,

Robert R. McGill
FERS Disability Attorney

 

OPM Disability Retirement: Characterization of Administrative Actions

Administrative actions are a peculiar thing; from the perspective of the Agency, it will take on a certain meaning; from the view of the Federal or Postal employee, the context and underlying basis often has an explanation which is unspoken.  For purposes of how to address an administrative action in the context of a Federal Disability Retirement application, the issue often comes down to whether or not it is worthwhile to preemptively address the particular action.

Some administrative actions or sanctions can be viewed as reinforcing the medical argument in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, inasmuch as a removal based upon one’s inability to maintain a regular work schedule would tend to show that, if there are concurrent medical documentation which shows that a Federal or Postal employee was determined to be disabled during the time of one’s inability to work, then the argument obviously is that the basis for the removal merely shows that one is eligible and entitled to Federal Disability Retirement benefits.

Then, there are other agency allegations which may imply that a Federal or Postal employee’s separation from Federal service was primarily based upon a non-medical basis, and that filing for Federal Disability Retirement benefits was merely an afterthought to try and game the system.

Ultimately, whether a Federal or Postal employee wants to fight or contest an Agency action is a legal matter, and is often a separate issue from Federal Disability Retirement; sometimes, however, they intersect, and the characteristic of the impact of such intersection often depends upon how one explains it.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Agency Pressures

Ultimately, the pressures which one’s Federal Agency places upon the Federal or Postal employee creates and manufactures a perspective that events have an urgency beyond the reality of the moment.  There is, further, a context of a build-up which is often lost; agencies view employees who have not been fully productive, in terms of “liabilities”, and begin to act and react accordingly.

From the employee’s viewpoint, actions initiated by the agency are often unfair, instigated without warning, and advanced with irrational promptness without regard to the particular situation of the Federal or Postal employee.  This is because much of the context which leads up to a decision is often kept in secret from the employee — internal discussions concerning the employee, etc.

A Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is often embroiled in the midst of an employment dilemma — whether the near-certain imposition of a Performance Improvement Plan (PIP), which is essentially setting up the employee for failure; or continuation of systematic workplace harassment; the pervasive nature of a hostile work environment; suspension or restriction of sick leave usage; and multiple other pressure points.

From the perspective of the agency, their stated goal is to further effectuate the “mission of the agency”.  From the perspective of the employee, it is nothing more than undue pressure and harassment, and leaving one with little or no choice but to file for Federal Disability Retirement benefits quickly, and immediately. But of course the Office of Personnel Management does not act in a quick or immediate manner, and so there is the problem of dealing with agency issues until the time of a decision.

That is all the more reason why it is important for the Federal and Postal employee to not wait until the last minute, and to begin to contemplate preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, with some time still ahead, both for planning and for handling potential agency issues.

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

Postal and Federal Disability Retirement: Thoughtless Agency Actions

The term, “oxymoron” comes from the Greek, meaning “sharp dull” — a phrase or concept which embraces two or more contradictory terms.  When was the last time that the combination of terms, “thoughtful” and “agency” made any sense?  

Thus, it is a waste of one’s time to rant and get upset over an agency’s actions because of bad timing (i.e., to propose a removal during the holidays; to initiate a PIP on the day before Thanksgiving; to suspend a person without pay on a Federal employee’s birthday; and other such coinciding thoughtless encounters).  It is fine to be upset for a moment because of the thoughtless actions of an agency; to continue to heave insults and focus upon the thoughtlessness, however, is a waste of one’s time, and ultimately misunderstands the role, intent and goal of an Agency.  

The reason why “thoughtless” and “Agency” do not ultimately and technically comprise an oxymoron, is because inherent in the very definition of the entity identified as a Federal Agency or the U.S. Postal Service, is the idea that it is indeed a Hobbsian Leviathan which a singular purpose of “doing” something, whatever that “something” is.  

In the administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, one should expect that one’s Agency, or the U.S. Postal Service, will engage in multiple thoughtless actions.  That is the innate nature of a Federal agency, or the U.S. Postal Service.  And, inasmuch as Federal Disability Retirement involves medical conditions, a sense that “empathy” and “sympathy” are called for — of a person’s career coming to an end; of an often progressively deteriorating medical condition, etc. — one would think that the agency would consider putting some thought into their actions.  But that would be asking too much.  

Federal Disability Retirement is an option which the agency sees as merely a problematic solution that needs to be dispensed with — yes, an oxymoron, but a truth, nonetheless.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Actions and the Bruner Presumption

Agency actions separating a Federal or Postal employee from Federal Service often contain language which comes close to allowing for a Federal or Postal employee to assert the “Bruner Presumption” (that legal presumption which essentially states that the declaration and admission by the Agency triggers a legal presumption that a Federal or Postal employee is entitled to, by a matter of law, to Federal Disability Retirement benefits under FERS or CSRS), but not close enough.  

Such language will instead be couched in references to medical documentation which has been previously reviewed by the Agency; will embrace an acknowledgement that the Federal or Postal employee has a “medical condition”; and will sometimes even entertain verbiage evincing sympathy for the Federal or Postal Worker’s “situation” — but still will base the removal upon other considerations, such as “excessive absences”, “failure to maintain a regular work schedule”, etc.  

The question ultimately then becomes:  Is it important, leaving aside relevance, to fight the agency to amend or otherwise re-characterize the original proposal to remove, in order to obtain the Bruner Presumption?  

The Bruner Presumption is a legal mechanism which gains greater weight and importance when a Federal Disability Retirement application has been denied twice by the Office of Personnel Management (both at the Initial Stage of the process, than at the Reconsideration Stage), and one therefore finds one’s self before an Administrative Judge at the Merit Systems Protection Board.  But such appearance before the MSPB presumably means that there are other problems with a case — most often, insufficient medical documentation.  

The Bruner Presumption aside, the Federal or Postal employee must still prove, by a preponderance of the evidence, one’s case, by submitting sufficient medical documentation.  The Bruner Presumption is simply that “extra” ingredient that may be helpful if all other factors have been met in proving a Federal Disability Retirement case.

While helpful, it is not a certainty for an approval.  While better to have than not, one must still prove one’s case.  While triggered most effectively at the MSPB, a less-than-Bruner-trigger can still be argued at all stages of the process.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire