Federal and Postal Service Disability Retirement: Don’t Act with Haste

This time of year can result in Federal and Postal employees acting “in haste” — of resigning; of receiving a denial on a disability retirement application and not properly making a decision for one’s future or self-interest; of responding to Agency actions in ways which will not benefit one’s future.

The “Holidays” can be a trying time; those considering filing for disability retirement under FERS & CSRS should take the time to consult with an attorney to review all of the options open, before making any hasty decisions which may impact one’s future and career with the Federal Government.

Remember, even if the Agency is making noises to file an adverse action during this time, or is about to place you on a PIP, or is calling you in for an “investigative interview”, there is always time to respond, and in most cases, a request for an extension of time to respond should, and will, be granted.  Retaliatory agencies and supervisors love to use this Holiday Season, when time is shortened, to file all sorts of adverse actions.

Don’t respond in an inappropriate way; consult an attorney.

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

Federal Disability Retirement: The Agency

I have written on this particular topic in the past, but certain issues seem to be “recurring thematic issues” which need constant vigilance in approaching it in the proper manner. Filing for disability retirement requires an affirmation of two foundational hurdles: (1) acknowledgment and acceptance that one has reached a point in one’s life that he/she can no longer perform one or more of the essential elements of one’s job.  This is the “psychological hurdle” which must be overcome.  And, (2) dealing with the Agency — trying to get the Agency to be “on your side” or, short of that, to render any potential agency action to become irrelevant or inconsequential.

As to the first hurdle, the Federal employee must always remember that filing for disability retirement is not a “shameful” thing — it is a pragmatic business decision:  No longer a good “fit” for one’s job, it is a benefit which one has had as part of the “employment package” that one accepted when one became a Federal employee.  Remember that, in the private sector, an employee may get a greater salary compensation package; in the Federal government, the employment package includes more than salary:  it includes health insurance, life insurance, disability retirement benefits, annual & sick leave, etc.  Filing for disability retirement is simply part of that compensation package.

As to the second, once an employee decides to file for disability retirement, it is important to try and convince the Agency that any adverse actions contemplated (putting you on a PIP; suspension actions; negative performance ratings; contemplated removal actions, etc.) will be vigorously contested — unless it is removal based upon a medical inability to perform one’s job.   Hurdles often arise through inaction and fear; this is your life; take the affirmative road, and begin tackling the issues “head-on”.  The time to file for disability retirement is now — not tomorrow.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Proper Response to the Agency

It is often difficult to inform an Agency of one’s decision to file for disability retirement. On the one hand, it is often a place where a Federal Employee has spent many years working for; with multiple years of interaction, both good and bad, it is a place which has grown to play a prominent role in the employee’s daily life, with necessary interpersonal infusions of personalities, playing such an influence as important as one’s personal family life — and, because a person may spend 8 – 10 hours a day, week after week, month after month, like life in a family, it has come to embrace a place of primary importance in one’s life.

As such, to inform such a place of one’s decision to file for disability retirement is, in effect, to inform them of one’s separation from that primary location of importance.  Such separation can be as psychologically devastating as a “divorce” which, in many respects, it is similar to.  That is often why the role of an attorney can be important.  An attorney can be a “middle-man”, an arbiter to soften the strain of such a separation from a federal employee from his or her “family”.

Remember, this is an administrative process; it need not be an adversarial process.  An attorney experienced in disability retirement law should know the process, and act to soften the separation which has been long in coming, and work to garner a sense of “teamwork” between Agency and employee, to attain as amicable a separation as possible.

Sincerely,

Robert R. McGill,Esquire

OPM Disability Retirement: The Time to File

A question often asked is, when is it the right time to file for Disability Retirement? Must you wait until one has been disabled for over a year? Do you have to file for Social Security first, before filing for OPM Disability Retirement? Should the Agency be notified at the beginning of the process, or some time later down the road? What is the best time to approach my doctor about getting his or her support for disability retirement? These are all “timing” questions — each important in its own right, as are all such timing questions.

Since the processing from start to finish, to obtain disability retirement benefits, may take 6 – 8, sometimes 10 months, it must be timed financially — is there enough sick leave, annual leave; should donated leave be requested? Once LWOP is taken, should one remain on LWOP throughout the entire process? As to whether one must wait for a year of being “disabled” before one can file — the answer is “no”. So long as the doctor believes that the medical disability will last for at least a year (within reasonable medical probability), one has the proper medical basis to file for disability retirement. As to filing for Social Security, the Office of Personnel Management actually only needs to see the receipt, showing that one has filed for SSD, at the time of approval of the disability retirement application. And how about notifying the Agency? This is a question which should be decided after discussion of several factors, with one’s attorney, who may provide for proper legal advice, the potential consequences of informing the Agency, etc. Ultimately, timing questions are a matter of particular importance — particular to the situation and circumstances of each individual case. With that in mind, it is often a good idea to have the counsel of an experienced attorney in the area of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Reaction of the Agency

I am often asked whether or not, at the beginning stages of the process of filing for disability retirement (when medical narrative reports, records, & other supporting information is initially being gathered), whether it is a good idea to notify the Supervisor and/or Agency of the intent to file for disability retirement benefits. That all depends upon multiple factors.

Often, the employee still desires to work. Because of the medical disabilities, and the continuing impact of the employee’s medical inability to perform one or more of the essential elements of the job, there is often the potential danger of an adverse Agency reaction — of using the statement of the employee to restrict or send the employee home, using the employee’s declaration of intention as an excuse that it was the employee’s own admission which resulted in such Agency action.

On the other hand, there are Agencies and Supervisors who, acknowledging the employee’s long tenure of loyalty, will “work” with the employee to provide some sort of temporary duties and accommodating employment stipulations. Such temporary measures are rarely considered to be “legally sufficient accommodations” under disability retirement laws, and therefore would have no impact upon any “accommodation issues” when the time of filing actually occurs.

In the end, the timing and manner of informing the Agency and the direct supervisor must have the input of the employee — who knows his/her agency, and the potential reactions therefrom.

Sincerely,

Robert R. McGill, Esquire