Federal Disability Retirement: Developing a Case

In most cases, the normal process of disability retirement for the First Stage of the process is anywhere from 6 – 8 months; some fall towards the 6-month range; some take longer than the 8-month range.  The difficulty in most cases is that the potential disability applicant/annuitant obviously wants to get through the process as quickly as possible, most often in order to get a sense of security for the future, that he or she will have the certainty of the Federal Disability Retirement annuity.  All of this is understandable.

The process — of preparing; of submitting; of waiting as it winds through the various Agency channels and finally to Boyers, PA and then to OPM in D.C. — is a process of high anxiety and anticipation.  Sometimes, however, cases must be patiently developed.  By “developed”, I merely mean that, at times, the doctor is not ready to provide the proper medical narrative report, or to state in explicit terms that a person is no longer able to perform one or more of the essential elements of his or her job, and that the medical condition will last for at least one (1) year.  Patience with the doctor as different modalities of treatments are applied, is often crucial in the development of a case.  My involvement in a case, even before it is fully developed, is preferred, only if to guide the client as the medical case develops, or — as is often the case — on issues involving how to respond to an Agency which is just as anxious for the whole process to begin and end, as is the client.

Sincerely,

Robert R. McGill, Esquire

 

December 3rd, 2009

OPM Disability Retirement: After Separation from Service (Part 2)

Of course, it is always the separation from service based upon reasons delineated other than medically-based reasons which give rise to concerns in a federal disability retirement case.  Understand, however, that the “Bruner Presumption” is essentially a “scale-tipper” for the Office of Personnel Management (supposedly) and for the Administrative Judge at the Merit Systems Protection Board (of somewhat greater certainty).  By this, I mean merely that, with or without the Bruner Presumption, a Federal Disability Retirement applicant under FERS or CSRS must still prove by a preponderance of the evidence that he or she is eligible and entitled to federal disability retirement benefits. “Preponderance of the evidence” is essentially proof such that it is “more likely the case than not”.  Thus, when all things are equal, the Bruner Presumption is supposed to tip the scale in favor of the federal disability retirement applicant. 

On the other hand, if an individual was removed for reasons other than medically-based reasons — i.e., as a hypothetical, let’s say he was removed “for cause” — an act of dishonesty; failure to follow certain agency procedures; or whatever the case may be.  Does such a removal tip the scale the other way?  Not necessarily; however, it makes gathering the proper medical evidence that much more important, and what I often do is to try and tie in the underlying behavior which resulted in the removal “for cause”, with the medical basis — if at all possible.

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

OPM Disability Retirement: Social Security Disability

Under the rules concerning FERS disability retirement applications, one must file for Social Security Disability.  As most people already know, there is an interaction/offset between Social Security Disability benefits and FERS disability benefits, if both are approved (100% offset in the first year of annuity, 60% offset every year thereafter).  One would assume (dangerously, as it turns out), that if an application for Social Security disability is approved, that it would automatically render an approval under FERS disability retirement a “sure” thing.  Nothing could be further from the truth. 

The fact that Social Security has a higher standard of proof — where one must be considered “totally disable” as opposed to (under the legal standards for FERS) “disabled from performing one or more of the essential elements of one’s job”) — one would think that, legally and logically, if you have met the higher legal standard of proof, then the lesser standard would have been automatically met.  Unfortunately, because the two standards are applied in different, independent agencies, the fact that Social Security Disability benefits are awarded is not a guarantee that the FERS disability retirement application will automatically be granted.  However, there is clear case-law stating that OPM must consider the approval by SSD as one factor among many in the consideration of FERS disability retirement applications.  It is important to cite such cases in support of your application for FERS disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law.

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire