I am receiving too many phone calls from people who have been fooled by his/her Agency that they have been "accommodated", and therefore they cannot file for disability retirement. From Federal Workers at all levels who are told that they can take LWOP when they are unable to work, to Postal Workers who are given "Limited-Duty Assignments" -- all need to be clear that your are NOT BEING ACCOMMODATED, AND THEREFORE YOU HAVE A RIGHT TO FILE FOR DISABILITY RETIREMENT. Let me clarify this issue by first discussing the important case-law of Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001). Bracey was, and still is, a landmark decision -- one of those cases that pushed back the attempt by the Office of Personnel Management to create a broad definition of what "accommodation" means, and thereby try and undermine a Federal and/or Postal Employees' right to disability retirement.
5 U.S.C. 8337(a) states that a disabled employee is eligible for disability retirement unless the employee is able to render "useful and efficient service in the employee's position", or is qualified for reassignment to an existing vacant position in the agency at the same grade or level. What this basically means is that, if you have a medical condition and you cannot do one or more of the essential elements of your job, you are entitled to disability retirement unless your Agency can (a) do something so that you can continue to work in your job, or (b) reassign you to an existing vacant position at the same pay or grade (all of those words are key to understanding the Bracey decision). As to the first issue, if your medical condition, either physical or psychiatric, is impacting your ability to perform the key functions of your job (in other words, "useful and efficient service" means that you must be able to perform the "critical or essential" elements of your position), then it means that you are eligible for disability retirement -- unless the Agency can reassign you to an existing vacant position (the second issue). As to the second issue, what the Court in Bracey meant is that there has to be an actual position existing, which is vacant, to which a person can be reassigned and slotted into, at the same pay or grade.
In Bracey, the Office of Personnel Management was trying to have it both ways: they argued that (a) an individual is "accommodated" if he can do his "job", and the "job" which the Agency was having Mr. Bracey do was a "light-duty" job that was made up by the Agency. As a result, the Office of Personnel Management had denied Mr. Bracey's application for disability retirement, and the case reached the Merit Systems Protection Board, and then to the U.S. Court of Appeals for the Federal Circuit on appeal. More recently, Agencies have been trying to convince Federal workers that they can take "Leave Without Pay" and work less hours; or revert to part-time status; or perform some other functions -- and this constitutes an "accommodation". Or, in the case of Postal Workers, especially those who have intersecting OWCP issues, one is often told that "Limited-Duty Assignments" constitute an "accommodation". However, for the latter, it is important to review such assignments -- does it include jobs from another craft? Are you offered a new "Limited Duty Assignment" each year, or every two years (which would imply that it is not a permanent assignment)? Can a new supervisor or Postmaster come in tomorrow and declare that there are no longer any "Limited Duty Assignments" available (which is often the case)?
Remember that a "position" in the federal employment system is "required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it. The 'resulting position-classification' system is 'used in all phases of personnel administration'. 5 U.S.C. 5101(2)" (Bracey at page 1359). It cannot be a position "consisting of a set of ungraded, unclassified duties that have been assigned to an employee who cannot perform the duties of his official position." Id.
Similarly, for Postal employees, you cannot be slotted in your craft position, but then be given duties crossing over from other crafts; and you cannot be told that you have been slotted into an already existing "vacant" position, but then be offered the same "Limited-Duty" position a year later. If it was truly a permanent "vacant" position, why would you be offered the same position a year later?
Remember that under 5 C.F.R. Section 831.502(b)(7), an offered position must be, among other things, of the same tenure as the position from which the employee seeks disability retirement. "Tenure" is defined at 5 C.F.R. Section 210.102(b)(17) as "the period of time an employee may reasonably expect to serve under his current appointment."
If you are a Federal or Postal employee, and you find this discussion about the Bracey decision to be somewhat confusing, do not let the complexity of disability retirement laws keep you from inquiring about your eligibility. In its simplest form, disability retirement is about 2 issues: Are you able to perform the essential elements of your job? If not, Can your Agency slot you into an already-existing position at the same pay, grade and tenure, and not just in some "made up" position that hasn't been graded and classified"? If your answer is "No" to both questions, then you are entitled to disability retirement benefits.
As true with all things in life, it is always better to affirmatively act with knowledge, especially knowledge of the law. Like the Tibetan proverb, to act without knowledge of the law is to act blindly. To fail to act, or to allow your circumstances to control your destiny, is to allow your Federal Agency or the U.S. Postal Service to dictate your future for you. If you are disabled, and unable to perform the critical elements of your job, then you should consider the option of disability retirement. Opting for disability retirement does not mean that you can no longer be productive in society in some other capacity; indeed, you are allowed to receive a disability annuity and go out and get another job, and make up to 80% of what your position currently pays. Opting for disability retirement merely means that you have a medical condition which is no longer a good "fit" for the type of job you currently have.
- What is the difference between the madman, the mediocre, and the Master? The madman fails to master reality, and therefore is unable to function with knowledge; the mediocre may have some knowledge, but fails to master it; and the Master -- he is the rare one who sees the reality, seeks the knowledge, and is able to grasp both. -- From Ancient Parables
I have often discussed the legal advantages of being separated from Federal Service for one's ?medical inability to perform? one's job, which results in what is commonly known as the ?Bruner Presumption?, where such a termination results in a prima facie showing of his or her burden of proof. What this means is that, with such a termination, the ?burden of production? shifts to the Office of Personnel Management, who must disprove your entitlement to disability retirement. Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993) Bruner was a 1993 case, and still applies today. However, further developments since then have expanded the applicability of the Bruner Presumption, and they are of importance for those filing for disability retirement.
Some recent developments impacting FERS and CSRS disability retirement applicants:
The Merit Systems Protection Board has held that removal for ?extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.? McCurdy v. OPM, Docket #DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. OPM, 91 M.S.P.R. 397 (2002).
What this means is that, the mere fact that a removal letter does not specifically state that you are being separated from service for you ?medical inability to perform? your job, does not necessarily mean that you are not entitled to the Bruner Presumption. That is why it is often important to have an attorney involved in negotiating the terms of a removal action, especially where removal is an action about to happen.
For instance, if it is becoming clear that you have been on LWOP for a period approaching a year, it might be a good idea to submit medical reports and documents showing the medical basis for your LWOP. Or, if a Notice of Proposed Removal has been issued, it is important to respond to such a proposal by submitting medical documentation establishing the basis for your non-attendance at work.
Now, the next and natural question is: How far will the Merit Systems Protection Board go in giving you the Bruner Presumption? The answer: It is not always important to get the Bruner Presumption, as it is to argue for the Bruner Presumption. In my experience litigating these cases before the Board, I have found that it is helpful to make a forceful argument that my client should be entitled to the Bruner Presumption, based upon all of the circumstantial evidence. And, even if I am not able to convince the Administrative Judge that my client is entitled to the Bruner Presumption, the argument itself highlights the fact to the Judge that it was a close call -- and this often leads to a victory.
Indeed, as a rather funny aside, after I had submitted a legal memorandum and argued to a Judge during a Prehearing Conference that the Bruner Presumption should apply in a particular case. The Judge stated to me, ?Mr. McGill, according to your argument, the Bruner Presumption should always apply!? To which I responded: ?Your Honor, that would indeed be my preference.?
Furthermore, it is also of vital importance to appeal a removal action whenever possible and legally permissible, especially where the removal action was based upon the alleged misconduct of the individual. Why? Because by appealing the removal action, you always stand the chance of coming to a compromise with the Agency, and having the Agency change the basis of the removal to one of ?inability to perform the job? or, at the very least, to ?resignation based upon medical problems?.
The case-law is consistent in holding that the Board will ?generally give effect to the terms of a settlement agreement between an applicant for disability retirement and her employing agency in determining the applicant's entitlement to disability retirement.? Jordan v. Office of Personnel Management, 77 M.S.P.R. 610, 614-17 (1998), recons. Denied, 86 M.S.P.R. 144 (2000); and Bynum v. OPM, DC-831E-00-0093-I-1 (June 29, 2001).
Similarly, cases such as Morton v. OPM, PH-844E-99-0224-I-1 (June 28, 2001) -- where, while the Board found that the Appellant was not entitled to disability retirement, went out of its way to clarify the fact that the Administrative Judge was ?improperly influenced by? the original removal action, and that the original removal action should not have been considered in making the determination concerning disability retirement entitlement. Also, in Lewis v. OPM, CH-831E-98-0434-I-2, the Board stated unequivocally that the Board ?will give effect to the terms of a settlement agreement between an applicant for disability retirement and her employing agency, in determining the applicant's entitlement to disability retirement.?
In other words, even if you were originally removed for misconduct, if your removal is later changed by a settlement agreement with the Agency, and you subsequently file for disability retirement, the Administrative Judge must keep a blind eye with respect to the original removal action. In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual's choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available -- knowledge.
Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength -- and this requires knowledge.
Psmith has sinced written about articles on various topics from Computers and The Internet, Entertainment Guide and Travel and Leisure. My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your partic. Psmith's top article generates over 673000 views. to your Favourites.