Tag Archives: Notice of Removal

OPM Disability Retirement: Termination (Part 1)

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Termination by a Federal Agency or the Postal Service can be a trying time, even if it has been a long time in expectancy.  The key is to try and begin negotiating with the agency even before the Notice of Proposed Termination is issued.

During that period when you know that the Agency is considering filing a Notice of Proposed Termination, is precisely the window of opportunity to try and convince & persuade the agency that the underlying basis of any proposed termination is and should be based upon your medical inability to perform one or more of the essential elements of your job.

This would be done through various means:  Submission of medical documentation to your supervisor, agency & Human Resources personnel; addressing key points concerning conduct or performance with medical evidence showing a direct and causal correlation between such conduct or performance with the medical evidence, etc.

If, on the other hand, a Notice of Proposed Termination is issued but one which is not based upon one’s medical condition, that does not mean that the window of opportunity has been lost — it just may mean that the strategy and tactic to try and persuade the Agency to amend the proposed termination may have to be adapted.  The key to all of this is to make sure and aggressively attack, rebut, and answer, at all stages of any proposed termination, in order to gain an advantage for one’s medical disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Actions, Part I

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Can adverse agency actions to terminate a Federal employee impact a potential FERS 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 Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

The Bruner presumption

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Just some comments about this important concept and one which all disability retirement applicants should be aware of.  It is well-established law that an employee’s removal for his or her physical inability to perform the essential functions of his job or position, constitutes prima facie evidence that he is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); and Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998).

What this means, essentially, is that if a Federal or Postal employee is removed for his or her medical inability to perform his/her job, the “burden of production” is placed onto OPM.  It is as if OPM must “disprove” a disability retirement case, as opposed to an individual having to prove his/her right to disability retirement. It is a “prima facie” case, in that, by having your Agency remove you for your inability to perform your job, it is considered a valid case “on its face”.

Further, in more recent cases, the Merit Systems Protection Board has held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002).

This means that the removal itself need not specifically state that you are being removed for your medical inability to perform your job; it can remove you for other reasons stated, such as “extended absences”, as long as you can establish a paper-trail showing that those extended absences were based upon a medical reason.

Sincerely,

Robert R. McGill, Attorney

Things you shouldn’t do when filing for FERS disability retirement

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First, a quick clarification: I have had periodic calls concerning the time-frame in filing for disability retirement. The Statute of Limitations in filing for disability retirement is one year from the date you are separated from Federal Service — not from the date you were injured, or from the time you stopped working, etc. Next, many Federal and Postal Workers ask me to represent them in obtaining disability retirement at the Second Stage (OPM’s Reconsideration Stage), after having filed without representation. I have no problems with that — indeed, sometimes (though rarely), individuals have such a severe degree of medical disabilities that an attorney is not necessary. For the majority of Federal and Postal Workers, however, representation beginning at the initial stage of a disability retirement application is necessary. If, however, for financial or other reasons (including stubbornness), an individual insists upon filing for disability retirement without a qualified Attorney, the following are a few things which you should NOT do in preparing your application:

Do not become non-compliant in a treatment regimen, medication regimen, or any aspect of a reasonable medical regimen designed to treat the disease or injury. This is a sure way to have your disability retirement application denied. For, when an employee “is unable to render useful and efficient service because that employee fails or refuses to follow or accept normal treatment, it is wholly proper to say that the employee’s disability flows, not from the disease or injury itself (as the statute requires), but from the employee’s voluntary failure or refusal to take the available corrective or ameliorative action.” Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed. Cir. 1986) (A word of caution: this does not mean that all surgeries must be consented to).

Do not ignore the basis of a Notice of Removal. I have previously discussed the importance of obtaining the Bruner Presumption, whenever possible, in a disability retirement case. Beyond getting the Bruner Presumption, however, is the fact that any implication of misconduct or willful failure on the part of the Federal or Postal Employee should always be appealed, if not to have it completely amended, then to at least have such a basis for removal expunged, and instead to allow for the employee to resign, thereby nullifying misconduct as a basis for separation. Never give the Office of Personnel Management an additional reason to deny your disability retirement application.

Do not have your treating doctors send in medical documentation directly to the Agency Personnel Office. Always take charge of your own disability retirement application. Have the doctors send the medical documentation to you, and personally review and inspect each page of your submission for accuracy, relevance, and applicability to your medical condition. Never blindly submit medical documentation to the Office of Personnel Management. Again, never give the Office of Personnel Management an additional reason to deny your disability retirement application. This advice, of course, goes “hand-in-hand” with my policy of never signing the SF 3112C (Physician’s Statement), which often releases all of the medical documentation directly to the Agency.

These are just three fundamental “Do Not” rules in preparing and filing for disability retirement. When a Federal or Postal Employee comes to me at the Reconsideration Stage for legal representation, I find that I must first correct several fundamental errors committed by the applicant. While I can almost always correct the mistakes already made, the damage can only be minimized, and never completely eradicated, because the error is already known to the Office of Personnel Management. Still, I am normally able to convince the Office of Personnel Management to approve the disability retirement application.

In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual’s choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available — knowledge. Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength — and this requires knowledge. Like the Mother Rabbit who cautions her bunnies, do not allow lack of knowledge to be your stumbling block.

My name is Robert R. McGill. I am an attorney who specializes in disability retirement claims for Federal and Postal Employees. If you would like to discuss your particular case, you may contact me at 1-800-990-7932, or email me at federal.lawyer@yahoo.com.