OPM Disability Retirement: Termination (Part 2)

There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.

Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.

The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.

As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Termination (Part 1)

Termination by a Federal Agency or the Postal Service can be a trying time, even if it has been a long time in expectancy.  The key is to try and begin negotiating with the agency even before the Notice of Proposed Termination is issued.

During that period when you know that the Agency is considering filing a Notice of Proposed Termination, is precisely the window of opportunity to try and convince & persuade the agency that the underlying basis of any proposed termination is and should be based upon your medical inability to perform one or more of the essential elements of your job.

This would be done through various means:  Submission of medical documentation to your supervisor, agency & Human Resources personnel; addressing key points concerning conduct or performance with medical evidence showing a direct and causal correlation between such conduct or performance with the medical evidence, etc.

If, on the other hand, a Notice of Proposed Termination is issued but one which is not based upon one’s medical condition, that does not mean that the window of opportunity has been lost — it just may mean that the strategy and tactic to try and persuade the Agency to amend the proposed termination may have to be adapted.  The key to all of this is to make sure and aggressively attack, rebut, and answer, at all stages of any proposed termination, in order to gain an advantage for one’s medical disability retirement.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: After a Resignation

Anyone and everyone who has followed my blogs or my more lengthy articles knows that an individual has up to one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS, after being separated from Federal service.  The clock begins to run upon a resignation by a Federal employee.  The actual date of separation should be ascertained on the “Form 50” or “PS Form 50”, as a personnel action.  There are many reasons why an individual resigns.  Perhaps it is because of an impending adverse action; a threatened adverse action; a fear of a future adverse action; or because a Federal or Postal employee can no longer perform one or more of the essential elements of one’s job. 

Whatever the reason, if an individual has a medical condition such that he or she could no longer perform one or more of the essential elements of one’s job, prior to the date of the resignation, then there is a good chance that the (now former) Federal or Postal employee may be eligible for disability retirement benefits.  Indeed, my view as an attorney who exclusively represents Federal and Postal employees to obtain Federal Disability Retirement benefits, is that if you have invested a considerable number of years of your life in Federal Service, then you should seriously consider whether your medical condition was a primary, or even a contributing, factor in your resignation decision.  Don’t let the clock run for too long; it may pass quietly, to a time when it is too late.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Be Careful

As part of a Federal or Postal employee’s process of filing for Federal Disability Retirement benefits, one may have to negotiate, respond to, or fight against an unfair Agency’s attempt to remove the Federal or Postal employee — based upon factors other than what is truly the underlying basis — of his or her medical inability to perform the essential elements of the Federal job.

For whatever reason — of incompetence, of pure unkindness, of personal vendettas, etc. —  Agencies will often refuse to remove an individual for the administratively neutral reason (by “neutral”, to mean that it is not an “adverse” action) of “medical inability to perform the essential elements of the job”.  Instead, they will often revert to other reasons:  “excessive absences”, “AWOL”, “excessive LWOP“; “violation of a PIP”, and other such overtly misleading reasons.

When, the truth of the matter is/was, the Federal or Postal employee was sick, has a medical condition, and could not come to work because of medical reasons.  Be careful.  Fight the removal action.  Don’t accept the unfair basis.  File an appeal with the Merit Systems Protection Board.  Remember, a removal for medical inability to perform the essential elements of the job can help you get an approval in a disability retirement application.  Better yet, hire an attorney who will fight for you.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

 

OPM Disability Retirement: Agency Actions, Part I

Can adverse agency actions to terminate a Federal employee impact a potential disability retirement application?  The short answer is “yes”, but the longer answer would have to consider multiple factors:  what is the underlying basis of the adverse action?  Does a person’s medical conditions (often psychiatric, cognitive dysfunctions impacting upon less than stellar performance ratings, or perhaps impacting upon the essential elements of one’s job in other ways) explain, in whole or in part, the “adverse” nature of the action?

Also, has there been a “paper trail” established with respect to informing the Agency of medical conditions, such that it can “explain” — again, in whole or in part — the apparent basis of the adverse action?  Is the Agency open to negotiating a material change in the proposed removal — i.e., from one which is adversarial (and therefore would be appealed to the Merit Systems Protection Board) to one based upon one’s medical inability to perform the essential elements of one’s job (with a stipulation that no appeal will be filed, thereby saving the Agency’s time, resource, and personnel).

It is important to “get involved” in the process of any contemplated Agency action — early.  If the Agency puts an employee on a Performance Improvement Plan (PIP), it is time — in fact, overdue — to become active in the future plans for filing a disability retirement application.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Lawless Supervisor

Every now and then (or perhaps more often than we like to think) a Supervisor will fill out the SF 3112B (Supervisor’s Statement) with such venom and innuendo and half-truths, as to make the disability retirement applicant out to be John Gotti’s half-brother and reincarnate of the conceptual paradigm of the greatest incompetent the Federal Government has ever seen (next to the Supervisor himself, of course). Or, it will state that the applicant has been “under investigation”, or that he/she has “mislead” the Agency, or other such half-truth, unsubstantiated allegation.

The problem in addressing such a Supervisor’s Statement with the Office of Personnel Management (if, in fact, one has the opportunity to address the issue before it gets to OPM or, as is more often the case, if the disability retirement application is denied, and the Supervisor’s Statement is referenced in the initial decision of denial), is the following: If you address it too forcefully, or emphasize it, then you are in danger of focusing the “fight” on the truth or falsity of what the Supervisor has said. In other words, you have essentially allowed the Supervisor to win the fight by shifting your focus upon the venom of the Supervisor.

It is more likely the wiser course of action to grant minimal attention to the Supervisor’s Statement; give it the due response it deserves, addressing the falsity of the statement, and how it is entirely unsubstantiated; and, sometimes, express outrage that OPM would have even considered such scandalous charges when it has been unverified; then focus most of the attention upon the validity and force of the Medical Narrative Report that accompanies the disability retirement application.

For, after all, always remember that this is a “Medical Disability Retirement Application” — with the emphasis upon “medical”, and not “Supervisor”.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The OWCP Danger of Complacency

I have had far too many calls by individuals who were complacent with being on OWCP/DOL temporary total disability compensation. The old adage, “Ignorance of the law is not an excuse”, is still generally true. It is the responsibility of the Federal or Postal employee to file for Federal Disability retirement benefits under FERS or CSRS in a timely fashion — within one (1) year of being separated from Federal Service.

The fact that an individual is on the rolls of Worker’s Comp, receiving Worker’s Comp, receiving a scheduled award, going through rehabilitation or job retraining does not protect or extend the Statute of Limitations of 1 year.

Many people, especially Postal Workers, become separated from service without being properly notified.  A hint:  If you all of a sudden stop receiving those “Zero-balance” pay checks, chances are, you have been terminated & separated from service.  The burden is on the Federal employee to keep on top of things:  ask for your PS Form 50, or SF-50, whichever the case may be; call your agency on a regular basis to make sure that you are still on the rolls of the Agency.

If you have been separated from service, a personnel action should have been initiated.  From that moment — when you have been separated from Federal Service — you have one — I emphasize and reiterate — ONE YEAR from the date of separation from Federal Service to file for disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The “No Other Choice” Case

Then, of course, there are cases where an individual has “no other choice” than to file for disability retirement. Sometimes, it is a chance that is taken — the chance of paying an attorney. Yes, adverse removal actions can impact one’s chances of obtaining disability retirement benefits. A case study: A recent client was removed from a Federal Agency for criminal conduct (obviously, no names will be used, and the facts will be somewhat altered to protect the client’s confidentiality of information). The individual was nowhere near retirement age; but suffice it to say that he/she had been a loyal employee for 20 years. He/she had a medical condition — a psychiatric condition, which pre-dated the criminal conduct. He/she hired me to obtain disability retirement.

What choice did the person have? He/she really had “no other choice” other than to walk away with nothing, or take the chance of paying an attorney (in this case, me). I was blunt about the entire affair: Normally, I am able to get most of my clients approved at the first or second stage of the process, and I will normally ascribe a “success-rate” to a case; in this instance, the probable rate of success, in my opinion, was lower than my normal prediction. Nevertheless, he/she wanted to go forward with it. I contacted the doctors and guided them into writing a forthright medical report; today, the client is receiving his/her disability retirement annuity. Did the person “deserve it” despite the criminal conduct? Absolutely! His/her medical condition pre-dated the criminal conduct, and in fact was a major factor in the actuation of the criminal conduct itself. I am happy for the client, and from a professional standpoint, it is always satisfying to win a case where a client entrusted a case in which he/she had “no other choice” — but once the choice was made, to have made the right choice.

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