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Disability Retirement and the Federal Employee

By Robert R. McGill

Friday, April 3, 2009

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Attorney Robert R. McGill specializes in federal disability retirement cases helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, visit his CSRS and FERS Disability Retirement Website.

This is a time of economic turmoil, where job security is in question, the financial markets appear to be in a constant state of jittery hiccups, and the expanding Federal deficit is looked upon with trepidation. Such issues are considered "macroeconomic" in scope, and impacts both the private sector employee as well as the Federal sector employee. When a medical condition or disability is thrown into the mix, impacting a Federal employee and his or her inability to perform the essential elements of one's job, then it becomes a "microeconomic" issue.

The difference between a macroeconomic issue and a microeconomic issue involves a simple distinction: When it impacts your neighbor, it is the former; when it impacts you, it is the latter.

Fortunately for Federal and Postal employees, disability retirement benefits exist as part of the "employment package" which constitutes the career-choice made when one decided to forego the private sector. This may have occurred for many complex reasons, or for a combination of some or all: job security; career opportunity; total benefits package; consistent COLAs and step increases; disability retirement benefits. The list is not exhaustive, but for purposes of this article, it is the latter benefit which this article will focus upon.

Disability retirement benefits – perhaps it was merely a minor footnote in the total employment opportunity which was considered before accepting a position as a Federal or Postal employee. Yet, as with all things medical, it is a benefit which becomes important only when the necessity arises. When one is twenty-something, one is invincible; when thirty-something, somewhat vulnerable; when over forty, the aches and pains of a lifetime begin to take their toll. For the Federal employee who finds that he or she is facing not only a medical condition (which would be serious enough), but further, that the medical condition is impacting one's ability to perform one or more of the essential elements of one's job – the prospect of having the security of disability retirement benefits transforms that formerly "minor footnote" into a wise employment choice of great foresight at the beginning of the employee's career.

The Office of Personnel Management website and many other sources provide the "basics" involving the eligibility requirements, the "process" involved in filing, and the various administrative steps one must go through to obtain Federal Disability Retirement benefits. The initial application is submitted to the Office of Personnel Management (it must be filed with them within 1 year of being separated from Federal Service, or one forever loses the right to file) – if still will on the rolls of the Federal Government, or recently separated from service but not more than 31 days, then the application must first be routed through the Agency personnel department; if separated from Federal Service for more than 31 days, then the application is submitted directly to OPM in Boyers, PA.

If, once the Office of Personnel Management reviews the disability retirement application, the agency finds that you meet the eligibility criteria, then the process ends, you are happily retired, and your annuity checks will be directly deposited into you bank account. If it is denied at the initial stage, however, then you have the right to "Request Reconsideration" of the denial. Such a request for reconsideration must be submitted to OPM within thirty days of the denial; during this process, you may request an additional thirty days within which to obtain, and submit, additional supporting medical documentation to bolster your case. If your Request for Reconsideration is denied, then you will be accorded the opportunity to file an appeal of the entire matter to the "Third Stage" of the process – the Merit Systems Protection Board.

Thus, as you can see, the process of attempting to obtain disability retirement is not a simple matter. It is a "benefit" – one which all Federal and Postal employees under FERS and CSRS "signed onto" as part of the "total employment package" with the Federal Sector. However, as with most benefits, it must be fought for. To "win the fight", it is important to be knowledgeable about the "rules of the fight".

Here are some basics to know:

To be eligible for a disability retirement annuity under the FERS or CSRS, a Federal or Postal employee must establish by a preponderance of the evidence that:

  1. He or she has completed 18 months (for FERS) or five years (for CSRS which, presumably, all CSRS employees already have the minimum eligible period of federal service) of civilian service;
  2. while employed in a position subject to FERS or CSRS, he or she became disabled because of a medical condition (note, however, that unlike OWCP – Department of Labor requirements, the medical injury or condition does not need to be caused at or by the job; indeed, one may have received the injury while skiing in the Alps and still be eligible for disability retirement), resulting in a deficiency in performance, conduct, or attendance, or, absent such deficiency, the medical condition must be incompatible with either useful and efficient service or retention in the position;
  3. the disabling medical condition is expected to continue for at least one year from the date the application is filed; and
  4. accommodation of the disabling medical condition in the appellant's former position or in an existing vacant position must be unable to be accomplished by the agency. 5 U.S.C. § 8337(a); 5 C.F.R. § 831.1203(a).

The Federal employee need not prove that he or she is "totally disabled"; rather, the standard of proof which must be met is to merely show that he or she is unable, because of disease or injury, to render useful and efficient service in the position occupied. Baumann v.Office of Personnel Management, 42 M.S.P.R. 257, 259 (1989). "Useful and efficient service means (1) acceptable performance of the critical or essential elements of the position, and (2) satisfactory conduct and attendance." 5 C.F.R. § 831.1202.

There are multiple complex surrounding legal issues which may clearly impact a disability retirement application. For instance, an employee's removal for physical inability to perform the essential functions of his or her position constitutes "prima facie evidence" that a federal employee is entitled to disability retirement. Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993). This is often referred to as the "Bruner Presumption".

Based upon this presumption, the burden then shifts to OPM to produce enough evidence from which a reasonable fact finder could conclude that the appellant did not qualify for disability retirement. Trevan v. Office of Personnel Management, 69 F.3d 520, 526 (Fed. Cir. 1995); Klein v. Office of Personnel Management, 71 M.S.P.R. 366, 370 (1996). OPM can, of course, meet its burden of production to rebut a presumption of disability "by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements." Trevan, 69 F.3d at 526-27 (citations omitted).

If the Office of Personnel Management meets its burden of production, the Merit Systems Protection Board then considers the totality of the evidence in deciding the disability issue, including objective clinical findings, diagnoses and medical opinions, testimony of all parties, review of all submitted documents, subjective evidence of pain and disability, evidence relating to the effect of the applicant's condition on his or her ability to perform in the grade or class of position the employee last occupied, and evidence that the applicant was not qualified for reassignment to a vacant position at the same grade or level as the position which was last occupied. Dunn v. Office of Personnel Management, 60 M.S.P.R. 426, 432 (1994), dismissed, 91 F.3d 169 (Fed. Cir. 1996). Regardless of the shifting burdens of production, the disability retirement applicant always retains the burden of persuasion – meaning merely that at all times, the applicant is the "primary person" to establish entitlement to disability retirement.

Then, of course, there are more recent wrinkles in the process – for example, where the Merit Systems Protection Board more recently held that a removal of an employee based upon "extended absences" can be considered "equivalent" to a removal for inability to perform for medical reasons where it is accompanied by specifications showing that the decision to remove was based upon medical documentation which suggested that the appellant was disabled and unable to perform his or her duties.

Such are the legal mazes which potentially confront a Federal Disability Retirement applicant – and those mentioned herein are the "tip of the iceberg".

Conclusion

When a medical condition enters into the fray of life, the greatest consequential impact always involves the financial stability and security of the Federal or Postal employee. In these times of economic turmoil, it is important to know the eligibility criteria, the administrative procedures involved, and the potential legal impediments which comprise the totality of the process called, "Federal Disability Retirement".

If a medical condition or injury begins to impact one's ability to perform the essential elements of one's job, it is important to consider all available options – including disability retirement. In considering such an option, it is vital that the Federal or Postal employee become armed with the knowledge necessary to secure the financial future for not only him or herself – but also for one's family. While the concept of disability retirement may have begun as a "minor footnote" at the beginning of one's career, let it not remain so when the need arises at the sunset of one's life.
 


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