Disability Retirement for Federal Workers: Annotating the Record

It is always important, in contemplating a Federal Disability Retirement application either under FERS or CSRS, to annotate the record where possible.  Remember that the Merit Systems Protection Board has previously found that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM , 109 MSPR 529 (2008).

As such, in preparing a Federal Disability Retirement application, a successful outcome may depend upon a “war of memorandums” between the applicant and the Agency.  If the Agency is attempting to remove a Federal or Postal employee based upon “performance” or “conduct” issues, without regard to any medical evidence submitted to the agency, and thereby attempting to characterize the absences, the lack of productivity, warnings and suspensions as mere intransigence and insubordination, then it is important to annotate the record and memorialize the contacts, the submissions, etc., by writing confirming emails, letters, memorandums, etc., where the agency was informed about the medical conditions, which medical documents were submitted, to whom they were submitted, and even the content (perhaps in summary form) of what the doctor has stated.  The only way to remove a shadow of a doubt is by allowing the sunlight in (sorry for the trite analogy/metaphor).

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Arguing the Case

I recently wrote an article in FedSmith.com where I argued that the process of argumentation is often just as important as the substance of the argument itself.  For instance, technically speaking, the mere fact that a Federal or Postal employee under FERS or CSRS receives a proposed removal for one’s medical inability to perform one’s job, without actually being removed for that medical inability, does not accord one the Bruner Presumption.  And, indeed, there may be various valid reasons why a Federal Agency will hold off from actually removing an employee — often to the advantage of the Federal employee. 

During such a “suspension” period (sort of like being in purgatory in the Federal sector) between having a proposed removal and actually being removed, while one may not obtain the advantage in a Federal Disability Retirement application of the Bruner Presumption, one can still argue that one is essentially entitled to the Bruner Presumption, and that is often just enough to win the argument.  Thus, as I argued in the FedSmith article, the process is sometimes just as effective as the substance of the argument.

Sincerely,

Robert R. McGill, Esquire