Search Results for: essential elements

Federal Disability Retirement Pros and Cons

September 13, 2014

Federal employees and Postal workers who suffer from a medical condition, where the seriousness of the medical condition begins to impact the ability and capacity to perform one or more of the essential elements of one’s job, must take a pragmatic, blunt assessment of one’s future — taking into account all of the factors necessary in order to make a proper decision.

For, in the end, the choices are starkly limited: Stay at one’s job (often not even a real choice, given that the medical condition and its impact upon one’s ability to perform the basic or essential elements of one’s job has forced the question itself to be asked); resign and walk away with nothing, with a deferred retirement at age 65 (again, not a realistic choice, and one which should not be considered, but in the universe of options, it is the non-choice of choices); file for Federal Disability Retirement through the U.S. Office of Personnel Management (this is, obviously, the most viable of the three alternatives).

One can weigh the pros and cons of filing or not filing: the daunting administrative and bureaucratic process which must be faced; the potential for reduced income; the loss of camaraderie enjoyed for these many years; the cutting short of projects and mission essentials labored upon for so long; and a multitude of similar changes. But in the end, all pros and cons must face in the same direction, and point to the inevitable game-changer: one’s medical condition, and the impact which it has upon one’s ability, inability, capacity, or lack thereof, in performing all of the essential elements of one’s job.

At the North Pole, all directions point south; for the injured Federal employee or the Postal worker with a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, the compass pointing to the need to file for Federal Medical Retirement is the direction mandated by circumstances, and not necessarily by whether the pros win out over the cons.

Sincerely,

Robert R. McGill, Esquire

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OPM FERS/CSRS Disability Retirement: The Law & Life’s Pragmatic Reality

September 26, 2013

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In a Federal Disability Retirement case, one of the ways to establish the nexus between one’s medical condition and the inability to perform one or more of the essential elements of one’s job, is to show a “service deficiency”. But as most Federal and Postal employees systematically receive satisfactory or higher ratings of workplace appraisals, and are passed through without thought in order for managers and supervisors to avoid contentiousness and adversarial encounters with their employees, it is rare that anyone can show poor performance and tie such a service deficiency to one’s medical condition.

Does one need to go to the supervisor and point out the service deficiencies and ask that the supervisor rate him or her as sub-par? No.

Does one have to grieve or contest a superior appraisal? Again, the answer is, No.

The intersecting contradiction between law and life often manifests itself in such circular absurdities. But how the law is read; the knowledge of a myopic understanding of the law without the greater context of the entirety of the evolution of case-law opinions and further expansive interpretation of the originating statute, can leave one to believe that the law makes no sense, and fails to reflect the pragmatic issues of reality.

Hint: Most Federal and Postal employees do not have a service deficiency; but since Federal Disability Retirement rules, regulations and statutes require that one’s medical condition must last for a minimum of 12 months, does that mean that one must show a devastation of one’s work ethic for a full year before you can even file? No.

The conflict between law and the pragmatic reality of life is merely an apparent one; once the truth is unraveled, there really is no conflict at all, internal, apparent, or otherwise, and Medical Retirement applications submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, in fact reflects the reality of life quite well. One needs to merely figure out and think away any such apparent self-contradiction.

Sincerely,

Robert R. McGill, Esquire

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Postal and Federal Disability Retirement: The Agency & the Burden of Proof

September 11, 2013

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In a Federal Disability Retirement case, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS, the burden of proving one’s medical inability to perform one or more of the essential elements of one’s job, always remains with the individual Federal or Postal applicant.

Certainly, there are actions by the agency which may add to such proof (e.g., declaring that the Federal or Postal worker is “not fit for duty” will further concretize an assessment made by a third party; or initiating a separation from Federal Service based upon one’s medical inability to perform the essential elements of the job will trigger the Bruner Presumption, which then invokes a rebuttable presumption and shifts the “burden of production” (note that it is not the shifting of the “burden of proof” — a conceptual distinction important to recognize) over to the U.S. Office of Personnel Management.

Waiting for one’s agency to act upon anything is, however, a very dangerous venture to begin with; thinking that one’s own agency will provide the proof necessary to establish one’s eligibility for Federal Disability Retirement benefits would not only be dangerous, but foolhardy. For, at its most fundamental level, the fact that the very entity which makes a decision on a Federal Disability Retirement application (OPM) is one which is separate and independent from the agency for which one works, creates a chasm which only further magnifies the inherent problem.

OPM pays little to no attention to what the agency does — except, perhaps, when the agency attempts to directly confront and challenge a Federal Disability Retirement application. Otherwise, don’t look for help from one’s agency (generally speaking) when one is filing for Federal Disability Retirement benefits; such unfounded reliance will only disappoint, at best.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Foundational Paradigm

July 8, 2013

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Ultimately, Federal Disability Retirement is based upon the persuasive delineation of three primary elements: A medical condition; impact of the medical condition upon one or more of the essential elements of one’s job; and an inability on the part of the agency to accommodate the resulting impact of the medical condition upon one’s inability to perform all of the essential elements of one’s job.

How one proceeds to “prove” the case; what “kind” of evidence one needs to provide; the qualitative nature of the proof to be submitted; the quantity and volume of the type of evidentiary submissions to be included; these are determined by necessity based upon the nature of the medical condition itself.

Thus, some medical conditions may require merely a few pages; others, extensive supporting documentation, including treatment notes, diagnostic test results, explanatory clinical encounters and narratives which show a history of treatment-resistant modalities of medical applications as well as fulfillment of such extensive attempts which validate that the patient/applicant is not a “malingerer”, but rather exhibits symptoms which defy traditional approaches both for diagnoses and treatment.

It is always upon the first of the three elements identified which forms the foundational basis of a Federal Disability Retirement application; the sequential nexus of the two following almost creates itself, like the phoenix arising from the ashes, only in this case, from the debilitating medical condition from which one suffers.

Sincerely,

Robert R. McGill, Esquire

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CSRS & FERS Medical Disability Retirement: Tying Together the Loose Strands

December 29, 2012

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When a medical condition impacts a Federal or Postal employee, whether under FERS or CSRS, and prevents him or her from performing one or more of the essential elements of one’s job, the process of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management begins.

One may conceptually distinguish between a “formal” beginning of the process, as opposed to an informal or “real-time” beginning; but in any event, from a retrospective vantage point, it is clear that the “beginning” occurred at that point when the coalescence of medical-to-job impact manifested itself and it became obvious that the Federal or Postal employee could no longer continue in the same fashion as before.

During this initial part of the process, when the Federal or Postal employee is simply struggling to survive — by going to medical appointments; attempting to continue to work; trying to ignore the reality of the medical condition by striving to perform all of the essential elements of one’s job as before; attempting to maintain the same balance of work-to-personal life, etc. — there is rarely a coordination of efforts, and the disparate strands of life’s compartments never come together in any comprehensible manner.

But at the “formal” point of preparing and formulating a Federal Disability Retirement application, it is important to engage in the “tying” together of the disparate strands of life — if only to package a cogent and coherent presentation of one’s Federal Disability Retirement application to the U.S. Office of Personnel Management.

Life may be a series of messes; a successful Federal Disability Retirement application, however, should be a serious compilation of proof, evidence, argumentation and logical structure.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Medical Disability Retirement: The Leisure of a Painless Life

December 24, 2012

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For Federal and Postal employees suffering from a chronic medical condition which impacts one or more of the essential elements of one’s job, the times of “leisure” have little or no meaning.

Leisure implies the ability to enjoy a world apart from the everyday world of work and worry; it is a short respite from the treadmill of life, obligations and duties, which we all have. The “Holidays” are also such a period; a time to set aside in order to attend to those meaningful compartments of personal relationships, family ties, and friendships once formed, lessened over time, and fractured through life’s daily struggles.

For the Federal or Postal employee who suffers from a medical condition, whether physical, psychiatric, emotional — or a combination of a compendium of all three — “leisure” is a foreign concept precisely because the escape into a surreal world of pausing the anxieties of the universe cannot ever be achieved. Such a point in life indicates the necessity of considering Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, precisely because the escape-hatch is a human need.

The deterioration and progressive pounding of a medical condition which impacts the Federal or Postal employee’s ability to perform all of the essential elements of one’s job, is a red-light indicator. Listen to it; as leisure is a world of solace, so the medical condition is a voice which shouts for a change.

Sincerely,

Robert R. McGill, Esquire

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CSRS & FERS Medical Disability Retirement: The Problem with OWCP

June 10, 2011

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Agencies which have employees who cannot perform one or more of the essential elements of one’s job will often encourage him or her to file for Department of Labor, Office of Workers’ Compensation Program benefits (DOL/OWCP), if the injury or medical condition occurred as a result of an on-the-job incident, or can be shown to have an occupational cause.

That is fine, so far as it goes. For, OWCP is set up with the intent of addressing those medical conditions and issues which are work-related. However, when agencies begin to use OWCP as the dumping ground for workers they don’t believe are fully productive, it becomes a problem because OWCP is not intended for long-term compensation, but merely a venue in order to compensate a Federal or Postal employee for a temporary time in order for the worker to recuperate from his or her medical condition or injury, then to return to full duty. It is not meant to be a retirement system.

Further, it only compensates for those injuries which are causally related to the workplace. As a dumping ground, it makes it easier for the Federal agency or Postal Service to deny the ability to accommodate the Federal or Postal Worker, or to reassign the individual, and instead to provide the proper forms to file for Workers’ Compensation benefits. This doesn’t mean, however, that OWCP will accept the claim, either as an original claim or as a recurrence. OWCP is not a retirement system.

On the other hand, OPM Disability Retirement under FERS or CSRS is meant to compensate Federal or Postal employees who have a long-term medical condition. If the agency cannot accommodate the disabled Federal or Postal Worker, that is an option to be considered. If you are “unwanted” — and the agency shows every inclination of that — it may be time to consider the option of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

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Disability Retirement for Federal Workers: The Benefit Needs No Apology

May 23, 2011

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A Federal Disability Retirement annuity under FERS or CSRS allows one to receive an annuity because the Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job.

Under FERS, while the Federal or Postal employee is required to apply for SSDI to determine if one is concurrently eligible for that benefit (and, if one is, to have an offset between SSDI and FERS), most Federal and Postal employees fail to qualify for SSDI precisely because he or she is not “totally disabled” (the general legal standard for SSDI eligibility), but merely unable to perform one or more of the essential elements of one’s particular Federal or Postal job.

This allows for two consequential benefits which help both the society at large as well as the individual Federal or Postal employee: It allows the individual to have the necessary time for recuperation and healing from one’s medical conditions, and further, it provides for the former Federal or Postal employee to seek other employment in the private sector, and be able to make up to 80% of what one’s former Federal or Postal position currently pays.

Thus, many Federal Disability Retirement annuitants go on to become employed, productive and tax-paying individuals, contributing to the very tax-base which pays for the Federal Disability Retirement annuity. It is, in many ways, a “pay-as-you-go” system, and is self-sustaining precisely because it is not purely benefit-dependent, but has a great percentage of benefit-recipients actually paying back into the system.

As a social policy, it is an inherently intelligent system, and requires no apologies for its intelligent design.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Stress

February 7, 2011

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“Stress” is always the “problem child” in a Federal Disability Retirement application under FERS or CSRS. If a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job because of an intolerance to a certain level of stress, then certainly it should be considered as a basis for preparing, formulating and filing a Federal Disability Retirement application, either under FERS or CSRS. However, treatment modalities must be engaged — normally, via a psychiatrist or psychotherapy.

Further, there are always issues which will come about in basing the primary medical condition as “stress” — aside from the fact that it is a generic designation which will often have corollary designations, such as Major Depression, Generalized Anxiety Disorder, etc. For example, can one define “tolerance to stress” as an essential element of one’s job? It is certainly an inherent element, implicit in many multi-tasking jobs and ones which require a high level of responsibilities or is subject to timeliness in quotas and work production. But when issues concerning stresses which arise as a result of “personnel issues” (i.e., interaction with supervisors, coworkers, etc.), then it becomes a “problem-child” which is best avoided, for numerous reasons, including the possibility and danger of having one’s Federal Disability Retirement application denied based upon a “situational disability“. Concepts and thoughts to ponder, when preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

October 21, 2009

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For whatever reasons, Federal Agencies rarely accommodate an individual who has a medical condition which impacts one or more of the essential elements of one’s job. Whether the Supervisor is too busy to craft a viable accommodation plan, or whether the Agency is simply following the standard thoughtless response of the Federal Sector in general, the truth is that Agencies rarely, if ever, provide a truly viable, legally defined accommodation. I receive calls every day from Federal and Postal employees who will state that the Agency is currently “accommodating” him/her; upon closer questioning, however, it always turns out that the term “accommodation” is being used in a non-artful, general sense, as in: The Agency is letting me take LWOP; the agency is letting me take sick leave; the agency is letting me not travel too much; the agency is letting me… What the agency is doing, whatever it is, is to temporarily keep you around until they decide your services are no longer needed. That may be just around the corner, or you may be forgotten for some considerable amount of time. Regardless, don’t be fooled; agencies rarely accommodate, and it is most likely the case that whatever “accommodations” the Federal or Postal employee believes that the Agency is providing, it does not fall under the legal definition of the term.

Sincerely,

Robert R. McGill, Esquire

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