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: When to File

I still get calls by people who state that (A) they are waiting for a year before they are going to file for FERS or CSRS disability retirement, (B)  It hasn’t been a year since they have been on LWOP, but it almost will be, or (C) They are waiting to be terminated so that their year will begin.  Quiz:  Which of the above (A, B or C) is the correct basis upon which to decide to file for Federal Disability Retirement benefits?  Answer:  None of the Above.

Since OPM disability retirement can take anywhere from 6 – 8, sometimes 10 months to get (beginning the time-sequence from the time a doctor is contacted to provide a medical report, to putting the entire packet together, to getting it to the Agency Human Resources Personnel, to getting it to Boyers, PA, to getting it to Washington, D.C., to getting an initial approval, etc.), it is:  A.  Not a good idea to “wait a year” because there is no reason to wait; B. You don’t need to wait a year on LWOP to file for Federal Disability Retirement benefits, and:  C.  You don’t need to get terminated, or separated from Federal Service, in order to file for Federal Disability Retirement benefits.

Let me re-emphasize:  The “1-year rule” has to do with the following:  A.  You have one (1) year from the date you are separated from Federal Service to file for disability retirement — but you can file at any time, whether separated or not, as long as it is not after 1 year after being separated from service.  B. Your medical condition must be expected to last for a minimum of 12 months — but your treating doctor should be able to tell quite easily whether or not the medical condition for which you are being treated will last that long — normally within a couple of months of treatment.

Sincerely,

Robert R. McGill, Esquire

 

August 13th, 2009

Accommodation under FERS & CSRS Disability Retirement

The issue of Accommodations is always an important one in FERS & CSRS disability retirement cases. Agencies on the one hand will often attempt to “put together” a set of duties for the employee to perform, and try and keep a productive employee with the Agency.

There is nothing wrong with this. Indeed, it may even be commendable for the Agency to try and “accommodate” a good employee in such manner. However, such an ad hoc set of duties is not legally an acceptable “accommodation”, and when it comes to filing for disability retirement, it does not preclude a person from being able to file for, and be eligible for, disability retirement. Court cases have upheld this view.

Thus, in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

Note this last provision, because that is the “all-important language” with respect to the issue of accommodations. What the Court in Bracey stated, is that the term “accommodation” is a legal, precise term, and it means that in order to be a true accommodation, the Agency must do one of two things: Either, provide for working conditions such that an employee can continue to perform all of the essential elements of the position that the employee is occupying, or place that employee into an existing vacant position — at the same pay or grade. This latter point is also important: in Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Remember: if you have a medical condition such that you can no longer perform one or more of the essential elements of your job, your Agency can certainly give you a set of duties to keep you in that position, and if you can do those duties, and like the type of work provided, that is great. However, if and when a new supervisor comes he, that supervisor can negate such an ad hoc set of duties, and declare that all employees must henceforth be able to do all of the duties of the official position description. That is why an ad hoc set of duties does not constitute an “accommodation” under the law — because what is assigned “ad hoc” can also be taken away “ad hoc”.

Unless a Federal Employee is legally accommodated, he or she has the option of filing for disability retirement. Don’t be fooled by an Agency who says, “Don’t worry; we’ll reduce your workload and let you work a light-duty position.” That “light-duty” position will not necessarily be permanent, especially when the next Supervisor comes along.

Sincerely,

Robert R. McGill, Attorney