adverse action on excessive unscheduled lwop

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

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

My Federal Disability

Helping Federal & Postal employees to get OPM Disability Retirement Benefits under FERS

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Federal Disability Retirement: The Right Time (Part 2)