Federal OPM Disability Retirement: Be Discerning

In many ways, there is too much information “out there” about anything and everything.  The area of Federal Disability Retirement Law under FERS & CSRS is no different (and, admittedly, the irony is that I may be adding to the compendium of information with my incessant blogs, articles, reflections, etc.).

The real problem, however, is not necessarily the quantity of information, but rather the quality — and for Federal and Postal employees who are attempting to understand all of the issues surrounding Federal Disability Retirement, it is often difficult to categorize and separate and distinguish between “good” information and “bad” information.

For instance, there is the local/district Human Resources personnel for an employee’s Agency.  Agency H.R. offices are made up of “people” — both good and bad, both competent and incompetent; both helpful and downright ornery.  Then, there is the Office of Personnel Management.  There are multiple internet sites, blogs, a plethora of lawyers (though, there are not that many lawyers who are versed in the area of Federal Disability Law).

The bottom-line issue is not one of “quantity” of information, but how to discern between “good” information and “bad” information.  Too often, a person will call me and tell me that “so-and-so told me that X occurs when you file for Federal Disability Retirement — is that true?”

My response as a Federal Disability attorney is of a standard nature:  I do not sit and argue or contradict some third person whom I have never met, and against a statement which may have been taken out of context.  Instead, I ask my caller, potential clients, and anyone and everyone who reads my writings, to look at the substance of what I write and say; review the consistency of what I have written, and make your own judgment:  Discern well by checking out the facts, and seeing if what others have said about me, or what I have said, rings true.  Be discerning.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Bruner Presumption – Agency Actions, Part II

One must never misunderstand the law and its application.  This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences:  the failure to secure disability retirement benefits and, therefore, the financial security for one’s future.

The “Bruner Presumption” is one such application of law which is often misunderstood.  Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong.  The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job.

With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant.  One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort.

This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force).

Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability retirement: End of Summer and Postal VER

Summer is almost at an end. The Postal Service, through the auspices of the Office of Personnel Management, is offering Voluntary Early Retirement (VER). For many, this is a positive thing; the decision to take the VER should be a financial decision. An analysis comparing the monetary return should be made between what an employee would receive under the VER and under disability retirement; if the financial difference is great, then obviously the employee should consider filing for disability retirement after the VER has been approved.

Remember that the employee would have one (1) year to file for disability retirement benefits, after the individual has been separated from service. Steps should be taken now, however, before accepting/filing for the VER, to establish the medical condition and disability prior to separation from service. This can be done by discussing the medical condition with one’s treating doctor, before the VER is applied for. Such early steps will help ensure the success of a future filing for disability retirement benefits — because the employee must establish that the medical condition impacted one’s ability to perform the essential elements of one’s job prior to separation from Federal Service.

Sincerely,

Robert R. McGill, Esquire