I am again updating you with this informational sheet concerning OPM Disability Retirement. Remember that disability retirement is an entitlement based upon your Federal Service. Once you have met the necessary time-requirements, it is a benefit accorded to you in the event that your medical condition renders you unable to perform the essential elements of your duties.
Second, remember that if you find that your medical condition causes you to become excessively absent from work, and you find yourself with the threat of an adverse removal action, this may be to your benefit in the event that you decide to file for disability retirement. Ever since the U.S. Court of Appeals for the Federal Circuit, in the case of Bruner v. Office of Personnel Management, 996 F.2d 290 (1993), decided that removal from the Federal Service shifted the burden of production from the Applicant to the Agency, such an adverse action actually works in favor of a disability retirement applicant. What this means is that, if you are removed because of your medical inability to perform, it is the Office of Personnel Management –and not you– who must prove that you are not entitled to disability retirement benefits. Of course, you must still provide the initial medical documentation showing your disability; however, the burden-shifting criteria greatly increases the chances of approval.
Third, with respect to the issue of Agency accommodation of a person’s medical disability, an important case to rely upon is Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001). There, the Court found that the light-duty assignment provided to the disability retirement applicant was not an “assignment to a vacant position” precluding Federal Disability Retirement, because “assignment to a vacant position” requires placing the injured employee into an officially established position that is graded and classified, and does not include an informal set of ‘make-up’ work that the supervisor wants you to do. “Accommodation” must mean accommodating your disability in the performance of your duties in the position in which you are working –not to just stick you into a corner desk and give you assignments as they come up.
Having the law behind you is important when you are attempting to assert your rights. However, if you are unaware of the law, then you have failed to utilize a tool which is there for you to use. The tool of an attorney is knowledge of the Law. If you believe that you need to consult an attorney concerning disability retirement, please contact me at 1-800-990-7932 or email me at firstname.lastname@example.org
Robert R. McGill, Esquire