Beyond knowing the basic components of what it takes to become eligible for Federal Disability Retirement under FERS, to be submitted to the U.S. Office of Personnel Management, every Federal Disability Retirement Applicant needs to know at least 5 components of the process.
Separation
First, know that from the vantage point of the U.S. Office of Personnel Management, every post-separation filing of a Federal Disability Retirement application presents a problematic case. That is because, while once separated, the law allows you to file within 1 year of being separated from Federal Service. However, the problem lies in the argument that (which OPM systematically makes) there is no way for the Agency (or OPM) to determine whether or not you could have been accommodated during the time you were a Federal employee. Furthermore, as you must prove that you were disabled during the pendency of your Federal employment, your medical documentation will likely post-date your separation from Federal Service, and OPM will argue that — as such — they are inapplicable. DO NOT let OPM get away with such specious arguments.
The Medical Documentation
Doctor’s know how to treat; they rarely know how to write an effective medical report. As such, it is important to obtain the services of a competent lawyer in order to aid in helping the doctor(s) prepare an effective medical report. No matter how serious the medical conditions, it is highly unlikely that merely gathering the compendium of your medical records will suffice in winning a Federal Disability Retirement claim with OPM.
SSDI
Yes, it is a formality and a prerequisite for filing a Federal Disability Retirement Application, and most applicants will become immediately denied because — as a Federal employee — your continued employment will automatically disqualify you for SSDI benefits. However, if you do get approved for SSDI, it can greatly enhance your chances for a FERS Disability Retirement approval from OPM.
The Bruner Presumption
If you become separated from Federal Service, it is important to consider the basis of your removal. If you are removed for your medical inability to perform the essential elements of your job, this may trigger what is called “The Bruner Presumption” — a legal mechanism where the burden is essentially placed on OPM to “disprove” your legal right to Federal Disability Retirement benefits. Furthermore, removal for excessive absences may still allow you to qualify for the Bruner Presumption, especially if there is an acknowledgment by your Agency that such absences were based upon your medical conditions.
Bracey v. OPM
There are, in fact, many cases which are clearly supportive of a Federal or Postal Disability Retirement application, such as Bracey v. OPM, which outlines what is or is not considered a legally-viable accommodation. Often, Agencies try and say that they provided or did X, Y and Z, assuming that such applications constitute an “accommodation” under the law. Do not fall for such assertions. An “accommodation” is a technical term of art, and just because your Agency thinks that they have “accommodated” you, the likelihood is that they have not.
Sincerely,
Robert R. McGill
Attorney specializing in Federal Disability Retirement Law
Robert R. McGill, Esquire is a FERS Medical Retirement Attorney who specializes exclusively in fighting for Federal and Postal employees to obtain Federal Disability Retirement benefits. He has been in private practice advocating on behalf of Federal employees for over 30 years.
Note: This article was originally published in Avvo.com.
Photo credit Scyther5 from iStock.