The Covid-19 Nexus in a Federal Employee Disability Retirement Claim

Covid-19 and Federal Disability Retirement
Covid-19 and Federal Disability Retirement

This is a strange world we live in.  The Covid-19 Pandemic has impacted all sectors of the economy, devastated large segments of our society, ravaged the older generation and effectively shut down social interaction.  Federal employees and U.S. Postal workers may appear to be relatively unscathed because they remain employed, salaried and productive — much of it through teleworking arrangements.  Certain jobs, of course, cannot be accommodated through teleworking.  Thus, Air Traffic Controllers, Special Agents, TSA workers, Criminal Investigators, Correctional Officers, CBP Officers and a multitude of other positions do not easily lend to teleworking, and even those who have the limited capability of working from home must still come into the office to pick up mail, obtain files and otherwise interact and interface with other essential elements of the position.  Whether by actual consequences of the Corona Virus, or the potential thereof, Federal Disability Retirement must be an option open to Federal and Postal employees.

The laws governing Federal Disability Retirement are simple enough: A medical condition suffered while being a Federal or Postal employee, which results in a Federal or Postal Worker being prevented from performing one or more of the essential elements of one’s position.  In the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals there clearly stated the applicable standard for disability retirement determinations, stating therein that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.”  How will the potentiality of Covid-19’s after-effects — of attacking those who are vulnerable because of underlying medical conditions — impact a Federal Disability Retirement application?  For, it is one thing to assert that a specific medical condition prevents a Federal or Postal employee from performing an essential element of one’s job; it is quite another thing to argue that, because of an underlying medical condition, a person cannot return to one’s position because, to do so will unreasonably endanger a person by being exposed to a deadly virus that has already proven to ravage and take advantage of pre-existing medical conditions.  Of course, if a vaccine were to be produced, such issues may become a moot point. Until then, however, the issue of Covid-19 and its impact upon a Federal Disability Retirement application remains fluid, at best.

Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), of course, is another oft-cited case which clearly delineates the eligibility criteria for Federal Disability Retirement.  There, 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.” This 3-pronged clarification of the criteria for Federal Disability Retirement can be used in evaluating a case involving a Federal or Postal employee who suffers from underlying medical conditions which may potentially pose an unreasonable risk if exposed to the Covid-19 virus.  Take statutory criteria No. 1 — where the disabling medical condition “is expected to continue for at least one year”; are we referring to the underlying medical conditions in isolation from the potential impact of being exposed to Covid-19?  If so, unless the underlying medical conditions themselves prevent the Federal or Postal employee from performing his or her job functions, then it is unlikely that a Federal or Postal employee will become eligible for Federal Disability Retirement benefits in connection with the Corona Virus issue. However, if a treating medical doctor places unequivocal restrictions upon a person’s ability to go to work because of the potentially deadly impact that exposure to the Corona Virus would have upon that person’s health, would that be enough to qualify for Federal Disability Retirement benefits?  Especially, if no vaccine or reasonable treatment regimens have been discovered?  This is an open question that may have to be “explored” with test cases which will surely come about in the very near future.

With respect to criteria 2 & 3 of the Bracey decision, the same arguments would apply, of course.  Non-attendance and deficient performance because of a medical restriction imposed by a treating doctor upon a Federal or Postal employee with a compromised immune system, underlying medical conditions such as diabetes or preexisting respiratory illnesses, etc., will no doubt be a basis for filing a Federal or Postal Disability Retirement application.  Similarly, no Federal Agency or Postal facility will be able to guarantee that an “accommodation” can be provided where exposure to the Corona Virus will be prevented; for, in many instances, such exposure would essentially be a death sentence.  “Incompatibility” is the “4th” standard in a Federal Disability Retirement application, when a Federal or Postal employee lacks any deficiencies in performance, conduct or attendance, but where a person’s medical conditions are no longer consistent with continuation in a Federal or Postal position.

Additionally, the question for the future will be — to what extent can a Federal Agency “accommodate “the potency and potentiality of a deadly disease?  And, on the flip-side, what is a “reasonable” level of risk that a Federal or Postal employee who has an underlying medical condition must face before the law concludes that you are eligible for OPM Disability Retirement benefits?  These are, ultimately medical questions insofar as one’s treating doctor will have to weigh the severity and extent of a person’s underlying medical condition, and balance such medical facts as against the risk of exposure to the Covid-19 virus and the potential resulting consequences.  As more and more information is gathered by the Centers for Disease Control and Prevention and the rest of the medical community, some of these questions surrounding Federal Disability Retirement, accommodation needs and inherent risks in performing one’s Federal job or Postal craft will become clarified.  Ultimately, however, when preparing a Federal Disability Retirement application under FERS which involves a Covid-19 issue — whether of its potential danger because of an underlying medical condition or its direct impact because it involves a Federal or Postal employee who has already contracted and suffered from its toll — a proper nexus must be established that connects all of the “dots” between the medical conditions involved, the essential elements of one’s Federal or Postal position, and the ability and capacity of a Federal Agency or Postal facility to properly “accommodate” a person’s medical conditions.

The Covid-19 Virus is, as many have characterized it, invisible, deadly, and still mysterious.  What impact it has upon Federal employees and Postal workers who suffer from co-morbidities which, in and of themselves may not qualify for Federal Disability Retirement benefits; the extent of the potential for serious medical consequences if one contracts the Corona Virus; and the type of reasonable accommodations which must be offered by a Federal Agency or the Postal Service — these are still open-ended questions to be answered, perhaps by rulings in cases at the U.S. Merit Systems Protection Board.  In the end, Federal employees should not have to face a choice between one’s job and the potentiality of exposure to the Covid-19; but in preparing an effective Federal Disability Retirement application involving the Corona Virus and its potential impact, a proper nexus will have to be established to show that an incompatibility exists between one’s Federal or Postal job and the medical risks involved.

 

About the Author

Robert R. McGill is an expert advisor for Federal Disability Retirement claims, a highly specialized legal practice which he, as a Federal employee attorney, dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his Federal Disability Retirement blog.

 

This article was originally published in the HG.org directory (5/14/20)

Federal Disability Lawyer Fees

Federal employee with disabilities

Should you worry about how much it will cost you to hire a Federal Disability Lawyer?

It is a genuine worry.  There are plenty of lawyers on the Internet who say that they “guarantee” —  with a “money-back” promise  — a successful outcome.  But what good is it to give you back your money if your application is denied at the first hint of trouble, and how much work and effort do you think such a law firm will put into your case?  At first sight, a “money-back” guarantee may seem like an attractive proposition.  You’ll get your money back if a Federal Disability Lawyer can’t deliver.  The problem is:  How much “delivery” will there be to begin with?  And what good is the money returned if you have not secured your Federal Disability Retirement benefits — and more importantly, if you didn’t even put enough effort into a case to give it a fighting chance?

By the time you come to a point where filing for Federal disability retirement benefits becomes a reality, you have already invested both time and money into a career whose goal was to create a “nest egg” for retirement purposes.  You may have already invested 10, 20 or even 30 years in a Federal career, and you are about to lose everything because of an injury or a medical condition.  Taken in that context, “How much”  you will be paying to your attorney shouldn’t be your primary concern.  The attorney you hire might promise you your money back — but what good is that if you haven’t taken your “best shot” at securing your future?  In filing for Federal Disability Retirement benefits, you are given only one opportunity to save your 10-30 years of hard work before it is thrown out the window.  Who you hire as your Federal Disability Lawyer; how much he is willing to fight on your behalf; what effort will be expended on your behalf; whether he is accessible to you throughout the process — these and many more considerations should be part of the “investment” into your own future.  On the other hand, your “Federal Disability Lawyer” who gives you that “money-back guarantee” might realize that your case is too hard to fight for, that it was not “easy money” and he/she might therefore decide to quit on you.  Yes, it can happen.  It has happened to others.

Meanwhile, your Agency or the Postal Service might have already let you go because you filed for Federal Disability Retirement.  The potential disaster is that you were “medically separated” but you didn’t qualify for Federal Disability Retirement benefits.  Yes, it can happen.  It has happened to others.

When you are struggling to survive after spending a 10-30 year career with the Federal Government, your legal fees are still an important consideration — but even this financial consideration should really be comparatively unimportant when considering the bridges you might be burning behind you.  Don’t be fooled by the “100% Money Back Promise‎”.

Be smart.  Hire the best Federal Disability Lawyer you can find.  Do your homework: Ask former Federal employees who have already successfully filed for Federal Disability Retirement benefits (nothing can beat a personal recommendation); consult with an honest union steward; and research for the best attorney in the field.  Read real reviews (a tip: if an attorney can write his/her own review on his website or even in Google reviews, that might not be a good basis upon which to make a decision); go instead to reputable lawyer directories, public forums, or even the BBB after finding potential Federal Disability Lawyers.

In the end, saving a few hundred of dollars might cost you the rest of your life savings.  Be smart.  Medical conditions can become a disaster in the life of the Federal or Postal employee.  Don’t let a medical disaster become a legal disaster.

Yes, it can happen.  It has happened to others.

 

AllLawyers.org