Federal and Postal Service Disability Retirement: After Separation from Service (Part 1)

It should be well established for anyone who has looked into Federal Disability Retirement issues, that a person has one (1) year from the time of separation from Federal Service to file for Federal Disability retirement benefits.  Separation from Federal Service can take many different forms:  Resignation; separation for cause; administrative separation based upon one’s medical inability to perform one or more of the essential elements of one’s job; etc.  The latter of these delineated forms (separation for medical inability to perform) is obviously the most beneficial to one contemplating filing for Federal Disability Retirement (first and foremost because it allows for the Bruner Presumption to be applied).

On the other hand, separation based upon a resignation is often neutral for issues concerning disability retirement (unless, of course, one has been foolish to put into his or her letter of resignation that the reason for the resignation is to go and become a professional poker player for the next year — but even then, if a medical condition existed prior to resignation, one might still be eligible for disability retirement benefits under FERS or CSRS); and, obviously, if the resignation was accompanied by a medical reason, and that particular medical reason was reflected in the SF 50, all the better.  Even separation for adverse actions — if there was a medical condition which existed prior to separation — can be explained away and fought for.  The point here is, regardless of the nature, reason and expressed rationale for separation from service, if a medical condition existed prior to separation from service, such that the medical condition prevented one from performing one or more of the essential elements of one’s job, there is a viable basis for filing for, and fighting for, Federal Disability Retirement benefits under FERS or CSRS.

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

OPM disability retirement: Clarification of issues for FERS & CSRS employees

In moderating the Martindale-Hubbell Message Board for Federal Disability Retirement Issues, two areas of law need clarification for those out there contemplating filing for Federal Disability Retirement under FERS or CSRS: First, the issue of whether a potential applicant needs to wait to be separated from Federal Service in order to obtain the “Bruner Presumption“, before filing for disability retirement.

The short answer is an unequivocal, “No”. To wait for an agency hoping that they will separate you for your medical inability to perform your job, is like waiting for your rich uncle to die and leave you an inheritance: It may never happen, and even if it does, it may not be worth it. While the Bruner Presumption is a nice additional weapon to have in arguing for an approval, it is not a necessary element.

The most important element in an OPM disability retirement case is to have a supportive doctor. Application of the Bruner Presumption — a recognition by the Agency that they cannot accommodate you, and further, that you cannot perform your job as a result of your medical condition, while a weapon in arguing for an approval to OPM, is not necessary in most cases. The point is to make sure your supporting medical documentation is strong, thereby negating the need for the Bruner Presumption.

Further, another common confusion which people have is what it means to be “separated from service”. The Statute of Limitations in Federal Disability Retirement cases is 1 year from the date a Federal Employee is separated from Federal Service. The 1-year does NOT begin when a person is on LWOP, or when a person is on FMLA, or any other reason. The 1-year begins when a person is officially terminated, separated, or taken off of the rolls of Federal Service, or when a person resigns from the Federal Service. It is 1 year from that date that a person must file for Federal disability retirement benefits, or you lose your right forever to do so.

Second, and finally (at least for this particular Blog piece), with respect to the 80% rule — where a person can earn income up to 80% of what one’s former Federal job currently pays: this is in addition to the disability retirement annity that a person receives.

Think about it, and it is logical: disability annuity is not “earned income”; the 80% rule applies only to “earned income”. Thus, for example, a person who was making $60,000 at a Federal job, who goes out on disability retirement, would get $36,000 the first year under FERS (60%), and $24,000 per year every year thereafter (40%). At the same time, that person can go out and make up to $48,000 per year (80% of $60,000), with that amount going up slightly each year (assuming that the payscale in the Federal system goes up each year for that same pay and grade). I hope this clarifies some of the issues that may have given rise to some confusion.

Sincerely,

Robert R. McGill, Esquire

The Bruner presumption

Just some comments about this important concept and one which all disability retirement applicants should be aware of.  It is well-established law that an employee’s removal for his or her physical inability to perform the essential functions of his job or position, constitutes prima facie evidence that he is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); and Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998).

What this means, essentially, is that if a Federal or Postal employee is removed for his or her medical inability to perform his/her job, the “burden of production” is placed onto OPM.  It is as if OPM must “disprove” a disability retirement case, as opposed to an individual having to prove his/her right to disability retirement. It is a “prima facie” case, in that, by having your Agency remove you for your inability to perform your job, it is considered a valid case “on its face”.

Further, in more recent cases, the Merit Systems Protection Board has held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002).

This means that the removal itself need not specifically state that you are being removed for your medical inability to perform your job; it can remove you for other reasons stated, such as “extended absences”, as long as you can establish a paper-trail showing that those extended absences were based upon a medical reason.

Sincerely,

Robert R. McGill, Attorney