Federal OPM Disability Retirement and “the Decision”

The decision to finally go forward and start the process of filing for Federal Disability Retirement under FERS or CSRS is often a hard one.  One needs to consider multiple factors, and the process of deciding to move forward in and of itself can be a complicated one.  Such factors as the medical condition itself and how progressively deteriorating it is; whether and for how long you can “mask” the medical condition; how perceptive your supervisor is; whether your supervisor and coworkers will continue to provide cover for you, and overlook some of the growing deficiencies; whether, even if you cannot do one or more of the essential elements of your job, whether the amount and type of work you are doing are significant enough for you to continue; whether you have a good rapport and relationship with your doctor; whether your doctor will be supportive and understanding; whether your agency will suddenly and without notice place you on a PIP or file a Notice of Proposed Removal; and a host of many other reasons and factors need to be considered.  For many of these questions, an attorney who specializes in Federal Disability Retirement law under FERS & CSRS can be of help.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Right Question (Part I)

Often, a person who is contemplating filing for Federal Disability Retirement benefits under FERS or CSRS doesn’t know the “right question” to ask in order to make a proper decision.  Because a medical condition often leaves a person with daily and profound fatigue  (both physical and cognitive), it is enough just to get through the day, come home and attempt to recuperate and regain enough strength to try and make it back to work the next day.  Then, of course, there are the financial worries — whether or not the disability annuity will be enough to support a family; whether a person will be able to supplement his or her income with a part-time job in this tough economy; or whether Social Security Disability benefits can be approved and, even with the offset, allow for enough income for some semblence of financial security.

All of these questions — or concerns — are clearly legitimate ones, and provide a good foundation for determining the viability for filing for Federal Disability Retirement benefits under FERS or CSRS.  But there are others, also:  What will happen if you don’t file for disability retirement benefits?  Will you be placed on a PIP?  Will you receive an unsatisfactory performance rating?  Will you last until retirement age?  If you last until retirement age, will you have the health necessary to enjoy your retirement?  Is it time to start a small business venture in this tough economy, and if so, when the economy begins to recover, will your small business grow with a growing economy?  Will your supervisor support your extended absences or over-use of sick leave for much longer?  Is the work that is getting backed up placing more pressure on you, such that it is exacerbating your medical condition further?  Think through the questions seriously.  It may be time to file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

 

[ See also: ”CSRS & FERS Disability Retirement: Right Questions (Part 2)” ]

Federal Disability Retirement in a Tough Economy

Healthy individuals may wonder why, in such a tough economy, an individual would consider filing for Federal Disability Retirement under FERS or CSRS.  This is an economy which has been shrinking and shedding employees.  Yet, for the Federal or Postal employee whose health and increasingly debilitating medical conditions directly impact one’s ability to perform the essential elements of one’s job, the choice is actually not all that convoluted.

Where a Federal or Postal employee can no longer perform the job; where sick leave and annual leave have been exhausted to go to doctors’ appointments, or just to stay home to recover enough to make it into the office for another day; or for those who are on LWOP for greater than the time working; in such circumstances, the stark reality is that a disability annuity is better than what the future may offer otherwise.  Removal for unsatisfactory performance; being placed on a PIP; being told that there is no more work at the Postal Service; being counseled for performance issues; these are all indicators of the proper choice to make.

Yes, it is a tougher economy; but when the economy begins to rebound, the first people that private employers turn to hire are those who are essentially independent contractors; and, especially with the looming overhaul of private health insurance, a former government worker who carries his or her own health insurance is, and can be, an attractive worker to a private employer.

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

Federal Disability Retirement: The Agency

I have written on this particular topic in the past, but certain issues seem to be “recurring thematic issues” which need constant vigilance in approaching it in the proper manner. Filing for disability retirement requires an affirmation of two foundational hurdles: (1) acknowledgment and acceptance that one has reached a point in one’s life that he/she can no longer perform one or more of the essential elements of one’s job.  This is the “psychological hurdle” which must be overcome.  And, (2) dealing with the Agency — trying to get the Agency to be “on your side” or, short of that, to render any potential agency action to become irrelevant or inconsequential.

As to the first hurdle, the Federal employee must always remember that filing for disability retirement is not a “shameful” thing — it is a pragmatic business decision:  No longer a good “fit” for one’s job, it is a benefit which one has had as part of the “employment package” that one accepted when one became a Federal employee.  Remember that, in the private sector, an employee may get a greater salary compensation package; in the Federal government, the employment package includes more than salary:  it includes health insurance, life insurance, disability retirement benefits, annual & sick leave, etc.  Filing for disability retirement is simply part of that compensation package.

As to the second, once an employee decides to file for disability retirement, it is important to try and convince the Agency that any adverse actions contemplated (putting you on a PIP; suspension actions; negative performance ratings; contemplated removal actions, etc.) will be vigorously contested — unless it is removal based upon a medical inability to perform one’s job.   Hurdles often arise through inaction and fear; this is your life; take the affirmative road, and begin tackling the issues “head-on”.  The time to file for disability retirement is now — not tomorrow.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Using the Law

The growing body of law is a pliable, ever-changing process, and where appropriate, it is the implied duty of the attorney to apply arguments and persuade by analogy. Sometimes, actions by agencies which, in one particular context, may be deemed as a negative factor, yet in the context of filing for disability retirement, it can be turned around and applied as “proof-positive” that, indeed, it only further shows that one’s medical condition has impacted one’s ability to perform the essential elements of one’s job.

Thus, while an employee may be placed upon a PIP (“Performance Improvement Plan”) or placed on LWOP and subsequently terminated and separated from federal service based upon unacceptable attendance (and in such termination cases, perhaps the Bruner Presumption would not be applied in a technical sense), it is appropriate to argue to the Office of Personnel Management, and further, to the Judge at the Merit Systems Protection Board, that while the technical application of the Bruner Presumption may not apply, nevertheless, such Agency actions are indicators of the acknowledgment and concession, that the employee suffered from a medical condition, that the medical condition indeed impacted his or her ability to perform the essential elements of the job, and that is why unacceptable attendance and/or a PIP plan was initiated. Negative agency actions, in the context of applying for disability retirement, must be interpreted and argued in the best light possible, in each instance.

Sincerely,

Robert R. McGill, Esquire

Is There Life after a Disability in the Federal Workplace?

In tough economic times, it is often difficult to find that “silver lining”. This is even truer for my clients who obtain disability retirement benefits from the Federal Government, as well as those contemplating it. For, ultimately, I always find (without exception) that Federal and Postal Workers who are contemplating filing for disability retirement don’t want to be in the position he/she finds him/herself in.

They have been loyal and hard working Federal employees.  They have shown such loyalty through years and years of committed service.  But, for whatever reasons, and for whatever circumstances and situations, a sudden medical condition, or a degenerative medical condition, has brought that loyal employee to a point where he or she is no longer a “good fit” for a particular kind of job.

Such an employee can often be placed on a PIP (“Performance Improvement Plan”), or be given a Letter of Warning, or be placed on Leave Restrictions, or be told that no more light duties are available — all indicators that the Federal Agency or the particular Post Office is no longer willing to engage in “bilateral loyalty” — in other words, your 20 years of Federal Service will be rewarded with a boot out the door.

But such Federal and Postal employees must always have a positive attitude:  disability retirement benefits are there for you when they are normally unavailable in the private sector; while it pays a flat amount which one may not be able to necessarily live on, it is nevertheless a “base annuity” that can be depended upon.  And, further, a recent New York Times article concerning the state of the present economy pointed out what I have noted in the past:  Private Companies are hiring more and more older workers who have their own health insurance benefits, and who can work part-time without benefits.

That accurately describes the disability retirement annuitant, who is able to make up to 80% of what his/her former position pays now, on top of the disability retirement annuity, and retain life & health insurance benefits.  Always look for the silver lining.

Sincerely,

Robert R. McGill, Esquire