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

Federal and Postal Disability Retirement: Conflicts & Peripheral Issues

Man is the only animal who has more than one side on his mouth, and the lawyer is a special species of the animal who, unlike the limitation of the cat who only has nine lives, possesses an infinite number of geometric sides of a mouth.  Lawyers make concurrent and conflicting arguments all the time, but as long as the arguments are bifurcated and the issues kept separate and do not directly conflict or contradict, there is certainly nothing wrong with that.

In a Federal Disability Retirement case, if a Federal or Postal employee wants to pursue a collateral issue in another forum while concomitantly filing for Federal Disability Retirement benefits, there is normally no conflict or problem which arises.  But in the limited instance where a Federal or Postal employee is attempting to reverse a termination and regain a position, at some point in the process the two issues may come to a direct conflict.

Normally, however, the issue involves merely changing the underlying reasons which the Agency proposed for the termination, and it is a legitimate argument to litigate with the Agency to change the terms of the termination.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Lost Cause

For a lawyer, it is indeed the “lost cause” which is the most challenging of cases.  This is no less true in Federal Disability Retirement cases for Federal and Postal Employees under FERS & CSRS.  In fact, in some instances it is all-the-more-true, because there is necessarily involved a physical or psychiatric medical condition which makes the case all the more worthwhile in fighting for. 

The concept of the “lost cause” is evocative of the famous scene from Frank Capra’s classic movie, Mr. Smith Goes to Washington, of course; and no lawyer, no matter how good, should be so arrogant as to think that he or she meets with the standard of what Jimmy Stewart was fighting for.  For one thing, lawyers get paid for what they do.  Yet, it is indeed the “lost cause” cases which often spur the attorney in any area of law, with eagerness and pride. 

Whether to obtain Federal Disability retirement benefits for an individual who was wrongfully terminated for extraneous reasons; proving to the Judge that, despite post-termination medical documentation, one can and should logically extrapolate that the medical conditions existed prior to separation from Federal Service; to persuade the Office of Personnel Management that the Agency knew, or should have known, of the medical condition, and should have terminated the individual for his or her medical inability to perform one or more of the essential elements of one’s job, as opposed to the manner in which the Agency went forth; these are all microcosmic examples of “lost causes”; and it is indeed the lost cause which is the most challenging of cases for an attorney.

Sincerely,

Robert R. McGill, Esquire