Federal and Postal Disability Retirement: Agency Actions & OPM

The argument in a Federal Disability Retirement application under FERS or CSRS goes as follows:  An Agency has determined that a Federal or Postal employee is medically unable to perform one or more of the essential elements of one’s job; that Federal or Postal employee cannot be accommodated; the case-law states that, at a minimum, the agency conclusions have a persuasive effect upon a Federal Disability Retirement application; ergo, the Office of Personnel Management should approve the Federal or Postal employee’s Federal Disability Retirement application under either FERS or CSRS.

The problem with such an argument, if relied upon exclusively, is threefold:  (1)  The statutory mandate as to which agency makes a determination upon a Federal Disability Retirement application under FERS or CSRS is misplaced, (2) The Agency, whether the Flight Surgeon at the FAA who determines that an Air Traffic Controller is medically unqualified to continue in his or her job, or the Postal Service who determines pursuant to the National Reassessment Process (NRP) that there is no longer a job available at the Postal Service, or any other agency which determines that no accommodations can be provided — has not applied all of the legal criteria under the laws and statutes governing Federal Disability Retirement applications, and (3) the focus from the perspective of the agency is a “second-tier” focus — of whether an accommodation can be provided to the Federal or Postal employee to see if the efficiency of the Agency can continue, as opposed to the “first-tier” issue of whether the Federal or Postal employee has a medical condition such that it satisfies all of the criteria for a Federal Disability Retirement application.  

As such, it is the focus of the respective agencies which differentiate the possibility of an agency action being merely persuasive, as opposed to determinative, in a Federal Disability Retirement applicationunder either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Continuing Confusions

In Federal Disability Retirement law under FERS & CSRS, the issue concerning accommodations can continue to remain a rather confusing area of law.  This is especially true when an Agency allows for an individual, either in the Postal Service (which is becoming rarer because of the prevailing winds of the National Reassessment Program) or in the non-Postal, Federal sector, to remain in a position and perform much of the lighter duties of the job, and to allow for one or more of the essential duties of the job to be delegated to others, or not be performed at all.  Now, such a situation can continue on for years, and there is nothing inherently wrong with such an arrangement (aside from the fact that the other Federal workers to whom such work is “delegated” may grumble and complain about fairness or, more likely, that some of the work is never completed), especially if the work which the injured individual performs is valuable to the Agency — even in such a “light duty” status.  

What must be kept in mind, however, regarding the relevance and significance to filing a Federal Disability Retirement application under FERS or CSRS, is that throughout the entire time-period of being on such light duty, the Federal or Postal worker could have, at any time, filed for Federal Disability Retirement benefits and should have been approved.  This is because such temporary “light duty” arrangements never constituted an “accommodation” under the law, and the Federal or Postal worker was eligible for Federal Disability Retirement benefits regardless of remaining in the “light duty” job.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: On the Other Hand

On the other hand, there is no such thing as a “lost cause” case.  To assert such a conclusion would be to presumptively admit defeat.  In Federal Disability Retirement cases, there is always a good chance of prevailing, whether or not a mistake was made; whether or not a doctor annotated, on a particular day in a moment of hope, that the patient showed “hopeful improvement”.  Yes, it is the job of the Office of Personnel Management to cling onto such peripheral statements, and to magnify such statements such that they appear to encompass the essence of the medical condition.

It is always with some amusement that I hear an agency Human Resources person state something to the effect of:  “Well, you know, Mr. McGill, this is not an adversarial process.  We and the Office of Personnel Management are merely here to determine the eligibility of the Federal worker, and to make sure that he or she fits the criteria.”

Not an adversarial process?  Is the Office of Personnel Management “there” to help you?  Is that why, in their template denial letters, they latch onto the most peripheral of issues and emphasize those points which allegedly present a problem, and ignore the rest of the medical evidence?  Any Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS would be wise to see the entire Federal Disability Retirement process as one of an “adversarial process”.  If you don’t, you proceed at your own peril.  On the other hand…

Sincerely,

Robert R. McGill, Esquire