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Monday, 1 November 2010

The 5 Basic Elements of a Federal Worker Disability Retirement Application Form

Author:  Robert McGill

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A successful Federal Disability Retirement application under FERS or CSRS must meet the 5 basic elements of eligibility. The 5 elements can be further categorized into three main factors: (A) Basic time-sensitive requirements, (B) The sufficiency of the medical documentation, and (C) Impact upon the Federal position and the Agency. In preparing to file a Federal Disability Retirement application under FERS or CSRS, it is important to organize the potential submission into clear and concise categories, such that the ultimate presentation before the Office of Personnel Management is cogent, understandable, and incontrovertible, to the extent that it meets the legal standard of review: that of "Preponderance of the Evidence".
First, with respect to basic time-sensitive requirements: A Federal or Postal employee who anticipates filing for Federal Disability Retirement benefits must have completed either (A) 18 months of creditable Federal service if under the Federal Employee's Retirement Systems (FERS) or, a minimum of 5 years of creditable civilian service if under the Civil Service Retirement System (CSRS). This is a basic eligibility requirement which must be met.
Second, if a person meets the basic eligibility requirement as a Federal or Postal worker, then the next question to be asked and answered is whether the medical condition from which one suffers, will last for at least 1 year from the date that the application for disability retirement benefits will be filed with the Office of Personnel Management. Most treating doctors can provide a prognosis, within reasonable medical probability, of the length of time a medical condition, the symptoms, the impact upon one's physical or cognitive capabilities, will last. The chronicity of the medical condition, based upon clinical examinations, the diagnosis, and the experience of the treating doctor, will lead to the opinion of the doctor. One must remember that, in preparing a Federal Disability Retirement application, the potential applicant does not have to wait a year for the medical condition to last; rather, what is needed is an opinion from the treating doctor, that the medical condition is expected to last at least one year.
Third, the medical condition must occur while employed in a position subject to FERS or CSRS, resulting in a deficiency in performance, conduct or attendance or, if there is no such deficiency, the disabling medical condition must be "incompatible" with either useful and efficient service or retention in the position. There are obviously multiple "sub-requirements" contained in the umbrella requirement, as stated. For the Federal or Postal employee who is considering filing for Federal Disability Retirement benefits under FERS or CSRS, here are the important things to keep in mind: (A) Once the Federal or Postal employee has the minimum of 18 months of creditable Federal Service, the minimum eligibility requirement has been met. (B) If a medical condition occurs, it must have occurred during the time that you are a Federal or Postal employee (remember, though, that even if you are terminated, you can still file for Federal Disability Retirement benefits under FERS or CSRS up until one (1) year after being terminated or separated from Federal Service). (C) The medical condition must last for at least one (1) year. (D) The medical condition from which one suffers (either psychiatric or physical) must prevent one from being able to perform one or more of the essential elements of one's job. For this element, you need not overly complicate what it means. Basically, it means that the Federal or Postal employee who is applying for Federal Disability Retirement benefits has to be able to show that the medical condition somehow impacts one's ability to perform one's job. The term "incompatible" is more like a catch-all phrase which allows for a greater amount of flexibility. Remember that 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 reiterated the applicable standard for disability retirement determinations, stating 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." This is where the flexible standard of proof comes from, and it is helpful to keep it in mind.
Fourth, accommodation of the disabling medical condition in the position held must be unreasonable - or, to put it another way, the Agency must not be able to accommodate the medical condition. This is where many Federal and Postal employees get confused. The term "accommodation" has a legal, technical sense to it. To be "accommodated" means that an individual who has a medical condition will be able to continue to perform all of the essential elements of one's job, with a reasonable accommodation provided by the Agency. If the proposed accommodation is too burdensome, and therefore "unreasonable", then the Federal or Postal employee is eligible for Federal Disability Retirement benefits precisely because the Agency cannot provide for such unreasonable accommodations. By way of explanation, take the following example: A Letter Carrier has bilateral knee problems, with severe osteoarthritis and chronic pain. The essential elements of such a job would include: standing for prolonged periods of the day casing mail and carrying & lifting volumes of mail, as well as delivery of mail. Now, suppose that the U.S. Postal Service buys the Letter Carrier a $5,000.00 Segway (one of those scooter-like devices that can travel about 12 miles per hour). Would this constitute an "accommodation" under the law? Probably not - because even though the essential element of delivering the mail might be accommodated, the issue of standing for prolonged periods of time would still be a problem - as well as having to stand on the Segway. Furthermore, there would still be the question of whether spending $5,000.00 would be "reasonable". Another example: Take an IT Specialist or an Auditor for a Federal Agency, who suffers from Major Depression and anxiety. The Agency allows for the Federal worker to take Sick Leave, Annual Leave, and even LWOP in order to allow for "time off". Do these actions constitute an "accommodation" under the law? The answer is: No - because allowing for leave does not provide for the Federal employee to perform the essential elements of the job. In fact, it does the very opposite - it only serves to reinforce the obvious fact that the Federal employee is not able to perform many of the essential elements of the job, and that is why so much "time off" is needed.
And Fifth, that the Federal or Postal employee does not decline a reasonable offer of reassignment to a vacant position. The "vacant position" that is offered by an Agency must be at the same pay or grade. As a pragmatic matter, this is normally not an issue. Agencies rarely find another position which is deemed compatible with the Federal or Postal employee who already suffers from a medical condition. Often, the alike position at the same pay or grade presents the identical problems to the Federal or Postal employee, precisely because it was the medical condition which resulted in the inability to perform one or more of the essential elements to begin with.
The above constitute some of the basic elements of a Federal Disability Retirement application. While there are many other (and rather complex) issues which must be addressed in preparing, formulating and compiling a Federal Disability Retirement application under FERS or CSRS, it is always best to start with the basic elements, then construct an effective delineation of a compelling case - to be submitted to the Office of Personnel Management.

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