CSRS & FERS Disability Retirement: Supervisors, Agencies and H.R. Personnel

I am sometimes pleasantly surprised at Supervisors — ones who actually recognize that an individual filing for Federal Disability Retirement under FERS or CSRS does so out of necessity, and not out of any personal or professional spite against the Supervisor or the Agency, and that the proper response to convey is one of support, empathy, and cooperation, without needing to compromise the goal and mission of the Agency.  Further, I am taken aback by the unprofessional and utterly unhelpful attitude of many Human Resources personnel in the processing of a Federal Disability Retirement application.

Too often, the H.R. person finds it his or her mission in life to be an obstacle to the smooth processing of a disability retirement application under FERS or CSRS.  Yet, the law is clear (though not to many of the H.R. Departments at various agencies):  it is the Office of Personnel Management which has the sole legal authority to make a positive or negative determination on a Federal Disability Retirement application; at the agency level, the role of the Human Resources person is to try and expedite and efficiently process the disability retirement application.  Hopefully, those who have the positional designation of “Human Resources” will come to realize what it all actually means:  he or she is supposed to be a “resource” (a positive one, for that matter) with a “human” emphasis.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Helpers

Then, of course, there are those Human Resources and OPM personnel who have been, continue to be, and will always be, greater helpers throughout the process in assisting Federal and Postal employees to obtain disability retirement benefits under FERS & CSRS.  They are diamonds in a sea of hindrances and obstacles.  And when you come across such an individual, at any stage of the process, one must always express one’s gratitude.

One might argue that they are “just doing their job”, but what such individuals do is clearly beyond the job that they are paid to do.  No only do they assist in the process, but they “humanize” the process; and, especially when a Federal or Postal employee who has a medical disability receives not only assistance in the process, but guidance in providing help to ease and smooth the road to approval, it is indeed a pleasant experience to come across the human touch. A word of thanks to all such Human Resources Personnel.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Hindrances

One would think that the Human Resources Department of the Agency from which a Federal or Postal employee is attempting to file a Federal Disability Retirement application, would be a “helpful” entity.  It is indeed a baffling phenomena when one pauses and reflects upon it:  What is the purpose of the Human Resources Department?  Specifically, what existential purpose does a person serve, who has a positional designation of “Disability Retirement Specialist”?

Let me attempt to answer the question in the way it is supposed to be answer:  1.  The purpose of the Human Resources Department is to help the Federal and Postal employees of the Agency or Department of which they have been established.  2.  The person who holds the designated job entitled, “Disability Retirement Specialist” is one who, theoretically, is there to assist in any way, within the legal confines established by the Agency, in as much as possible, to help the Federal or Postal employee to finalize and complete the disability retirement packet for submission to the Office of Personnel Management.

Now, let me pose the following hypothetical:  an H.R. person calls up and says, “I cannot forward the disability retirement packet because Box Number ___ on Standard Form _____ has not been checked.”  Does this sound like the Human Resources Department is fulfilling the existential purpose for which it was established?  On the other hand, rhetorical questions are fun to ask, precisely because they are rhetorical, and allow one to expiate some build-up of frustrations on a Friday night, after a long week dealing with multiple agencies.  Have a good weekend.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

For whatever reasons, Federal Agencies rarely accommodate an individual who has a medical condition which impacts one or more of the essential elements of one’s job.  Whether the Supervisor is too busy to craft a viable accommodation plan, or whether the Agency is simply following the standard thoughtless response of the Federal Sector in general, the truth is that Agencies rarely, if ever, provide a truly viable, legally defined accommodation.

I receive calls every day from Federal and Postal employees who will state that the Agency is currently “accommodating” him/her; upon closer questioning, however, it always turns out that the term “accommodation” is being used in a non-artful, general sense, as in:  The Agency is letting me take LWOP; the agency is letting me take sick leave; the agency is letting me not travel too much; the agency is letting me…

What the agency is doing, whatever it is, is to temporarily keep you around until they decide your services are no longer needed.  That may be just around the corner, or you may be forgotten for some considerable amount of time.  Regardless, don’t be fooled; agencies rarely accommodate, and it is most likely the case that whatever “accommodations” the Federal or Postal employee believes that the Agency is providing, it does not fall under the legal definition of the term.

Sincerely,

Robert R. McGill, Esquire

 

Federal & Postal Service Disability Retirement: Agency Support

Sometimes, the question comes up as to whether or not it is important to have the blessing or support of the Agency or the USPS, when filing for Federal Disability Retirement benefits under FERS or CSRS.

My answer to such a question is fairly uniform and redundant:  this is a medical disability retirement; it is unwise to proceed to apply for Federal Disability Retirement benefits on the assumption that your Supervisor or Agency will be supportive, for there is no guarantee as to what “supportive” means (they may have a completely different understanding or definition of the concept than you do — something which you probably learned over many years of working in the Federal Sector), and further, the primary focus from the perspective of the Office of Personnel Management, is upon the medical evidence presented and how the medical condition impacts one or more of the essential elements of your job.

The Supervisor’s Statement should be minimized in importance and relevance, as much as possible, by ensuring that the rest of the disability retirement application is “excellent”.  By doing this, you neutralize any undue dependence upon an Agency’s alleged “support” of your application.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: The Futility of Waiting for an Agency

In Federal Disability Retirements, the general rule is as follows:  waiting for your agency to act in some way that may prove to be beneficial to your case, is an act of futility.

Whether it is to wait for a performance appraisal; whether to see if the Agency will accommodate you, or not; whether you are waiting for a response from your Supervisor to see if he or she will support your Federal Disability Retirement application, etc. — in the end, a disability retirement application under FERS or CSRS is a medical issue.  It is not an “Agency Application for Disability Retirement”; it is not a “Supervisor’s Application for Disability Retirement”.  It is a medical disability retirement, inseparable from the Federal or Postal employee who is filing for the benefit.

As such, the proper focus should be placed upon the sufficient and substantiating medical documentation.  If the medical documentation, combined with the applicant’s statement of disability, are persuasive with respect to the correlative force of being unable to perform one or more of the essential elements of one’s job, then such a combined force makes all other issues essentially moot and irrelevant.  Don’t wait upon an agency to act; to act affirmatively without depending upon the agency is always the best route to follow.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case.

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire