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

CSRS & FERS Disability Retirement: Agency Supervisors

Federal Agencies, and the Postal Service, can act as little fiefdoms, with minimal oversight in the use of power. There is no school which teaches the proper use of power; power is something which is too often misused, misapplied, and abused. And, those who possess power, often exponentially apply it when the focus of such power has become vulnerable. Federal and Postal workers who suffer from a medical condition, who are in the vulnerable position of necessarily filing for disability retirement benefits under FERS & CSRS because of the imposition of an unwanted medical condition which impacts and impedes his or her ability to perform one or more of the essential elements of one’s job, are especially in a sensitive position, precisely because they are at the complete mercy of the Supervisor.

Supervisors need to understand and appreciate the great power which he or she possesses. The powerful need not misuse such power in order to show how powerful he or she is; indeed, it is in the very act of kindness, empathy, and the ability to show sensitivity and “human-ness” which is the true showing of the powerful. Supervisors should “bend over backwards” to show what it means to truly be a Supervisor — one who recognizes and appreciates the long years of loyal service the disabled employee has shown; empathy for the vulnerable situation the employee now finds him/herself in; kindness in the treatment of the employee. Such kind treatment will go a long way towards encouraging a sense of community and family within an agency, and will foster the other employees in the department, office, and greater agency to work that much harder, knowing that it is not “just a job” — but a career worthy of greater devotion.

Sincerely,

Robert R. McGill, Esquire

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