Tag Archives: stating the facts about the essential element of the job

OPM Disability Retirement: Applicant’s Statement & Essential Elements

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When an applicant for FERS Disability Retirement benefits begins to craft his or her Applicant’s Statement of Disability, certain foundational questions must be considered before composing the historical, emotional, substantive and impact-descriptive narrative.  For instance, to the legal criteria, to be eligible for Federal Disability Retirement benefits, one must show that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job — the initial and most foundational question obviously is:  What are the “essential elements” of one’s job?

Now, that may seem like a simple — even simplistic — question.  One needs only to look at the official position description and pick out the major factors of the position.

If only it were that easy.  For, there are many “implicit” essential elements which are not explicitly stated, and it is often those unspoken, “un – described” elements, which are directly impacted by one’s medical conditions and disabilities, which must be creatively woven into the narrative of one’s written statement.  Always remember to take care of the “foundational” issues first; thereafter, the narrative can extrapolate from the major factors of the position description.

Sincerely,

Robert R. McGill
OPM Disability Lawyer

 

OPM Disability Retirement: Termination (Part 2)

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There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.

Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.

The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.

As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Long, Longer & Longest View

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I have often spoken of the need to take the “long-term” view in filing for Federal Disability Retirement benefits under FERS & CSRS — both in terms of having patience for the inherently long process in terms of time, as well as in terms of preparing a case for not just the First Stage of the process, but further, for the second Reconsideration Stage, as well as for an Appeal to the Merit Systems Protection Board.

This “long-term” view is meant to prepare a potential applicant for what it means to file for Federal Disability Retirement benefits; to not be overly concerned if you are denied at the first, or even the second stage of the process; and to be prepared financially to weather the “long haul”.  In short, it is meant to prepare the potential applicant for the long, and longer, view of filing for Federal Disability Retirement benefits.

It is also necessary, however, to prepare one’s self for the “longest” view — that of maintaining and keeping safe the disability retirement benefits once it is approved — by preparing to be randomly selected every two years or so with a periodic “review” with a Medical Questionnaire.  The Medical Questionnaire is an innocuous looking form, asking for an “update”, and giving you 90 days to respond.

Be cautious.  Be aware.  Take it seriously.

Don’t wait for the 89th day to begin responding to it.  None of my clients who have gotten his or her Federal Disability Retirement benefits has ever lost it; people who have gotten Federal Disability Retirement benefits on their own and have later lost the benefit, have come to me to regain it; I have been successful in recovering the benefit, in every case.  However, it is not always easy — if only because the disability annuitant initially thought that it was an “easy-looking” form.

Preparation for the “longest view” begins not upon receipt of the Medical Questionnaire; it begins at the very, very beginning — when one first decides to file for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire