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Disability Retirement


The federal government allows employees who are unable to work to retire under a disability retirement. It is in the best interest of both employees and the federal government for employees to remain gainfully employed in their current grade or pay level, as long as they can provide useful and efficient service without endangering themselves, others or government property.
Disability retirement should be the very last option and should be used only when attempts have been made to preserve an individual's employment, and those attempts have failed.

Order our Disability Retirement guide to educate yourself on the rules and regulations concerning disability retirement for federal employees.

To read today's top news stories on federal employee pay, benefits, retirement, job rights and other workplace issues visit FederalDaily.com.
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PostalGuy66  
#1 Posted : Wednesday, November 6, 2019 12:08:57 PM(UTC)
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I thought that I'd contribute my timeline dates to the forum

6/7/19 - Hired my attorney (Kevin Graham)

10/18/19 - Application sent to OPM

11/6/19 - Received my CSA#

I will add that the organization was unable to accommodate me, which was part of the package sent to OPM.
A week after we sent the application to OPM saying that they could not accommodate me, I was offered a reassignment. The reassignment was a position with far less responsibilities, on an overnight shift, and a large pay cut. I have until this Friday, 11/8/19 to accept or decline the reassignment and I am going to decline it. Accepting it would cause my DR application to have to start all over again.

I'll update this thread when I have more to add
GSBS  
#2 Posted : Wednesday, November 6, 2019 3:11:46 PM(UTC)
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Kevin used to post here sparingly and I have recommend his firm here for a few reasons, one being no upfront costs and if you don't win you don't pay. I was told they are not active during Step 1 or 2 and let it go to the MSPB, Stage 3. An interesting concept although sounds dangerous. Rejecting a RA can be very dangerous, unless you work for the PO!

From Harvey F, a really old New York OPM D.R. Attorney that is so busy he doesn't call back prospective clients in a timely manner. I went with #1, McGill!


If I refuse to accept an accommodation or reassignment, will I lose my right to disability retirement?
ANSWER: Yes. You will lose your right to disability retirement if you turn down a reasonable accommodation or reassignment. If the agency is able to accommodate you in your current job or to reassign you to another job, within the legal strictures explained above, you must accept it or you will lose your right to disability retirement. On the other hand, if you do accept either an accommodation or a reassignment, you will of course lose your opportunity to gain disability retirement (unless it doesn't work out for you, in which case you can try again). In short, the last thing that most people applying for disability retirement want is for the agency to accommodate or reassign them.

But not to worry. In the vast majority of cases, the agency has neither the desire nor the ability to accommodate or reassign an employee. For the most part, accommodation and reassignment of those who are disabled, like accommodation of other handicapped individuals, is treated as a joke by the federal agencies.

One exception: many non-management Postal Service employees fall under a different rule and, under certain circumstances, they can turn down reassignments to a different craft (or those which violate collective bargaining agreements) without jeopardizing their disability retirement rights.
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PostalGuy66 on 11/7/2019(UTC)
PostalGuy66  
#3 Posted : Wednesday, November 6, 2019 4:32:16 PM(UTC)
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First of all GSBS, thanks for the reply and your original referral to Kevin you gave me.

I am hoping that me declining the reassignment offer won't hurt my DR application. The one thing I'll have going for me is that the offer, although in the same facility, is a five or six level downgrade and a cut in pay of over 22k per year.

From OPM's website, the last sentence in particular:

Changing Your Retirement to Disability Retirement

You can submit an application for disability retirement within one year after your separation from employment provided you did not elect the alternative form of annuity with a lump sum payment equal to your retirement contributions. You and your former employing agency must submit evidence that shows you became disabled while employed in a position subject to FERS coverage, and you and your agency must provide evidence that you were unable to perform useful and efficient service because of disease or injury in the position you retired from. Your former agency will also have to certify that it could not reasonably accommodate your condition. Moreover, you must not have declined an offer of reassignment to a vacant position in the commuting area at the same grade or pay level and tenure.

Thanks again, GSBS
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GSBS on 11/6/2019(UTC)
gembarok  
#4 Posted : Thursday, November 7, 2019 5:30:37 AM(UTC)
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Greetings,

It is not a reassignment if it doesn't match your current pay. That is in the rules. It can be a lower grade, but the pay must remain the same. If I am a GS-12 Step 1 at $60K a year and they offer me GS-5 Step 10 at $50K a year, it is not a valid offer. If it is GS-7 Step 8 at $60K a year then that is a valid offer of reassignment. You do not have to accept a lower paying job.

S/
K
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PostalGuy66 on 11/7/2019(UTC)
PostalGuy66  
#5 Posted : Thursday, November 7, 2019 5:34:15 AM(UTC)
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Thank you, gembarok. I was hoping that this was the case but with all the conflicting information that I've come across I just wasn't entirely certain.
gembarok  
#6 Posted : Thursday, November 7, 2019 6:11:07 AM(UTC)
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Originally Posted by: PostalGuy66 Go to Quoted Post
Thank you, gembarok. I was hoping that this was the case but with all the conflicting information that I've come across I just wasn't entirely certain.


Greetings,

Don't take my word on it...

https://www.opm.gov/poli...Summary-of-Reassignment/

S/
K
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PostalGuy66 on 11/7/2019(UTC)
PostalGuy66  
#7 Posted : Thursday, November 7, 2019 7:21:48 AM(UTC)
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Understood, and thank you

I'll just have to cross my fingers and hope for the best.

I am more concerned about being medically separated after refusing the reassignment than I am about my DR application. What might save me however is that I asked for a Reasonable Accommodation back in June. My physician asked that I get accommodated for alternative duties for a few different handicaps and that in 6 months, I'd be re-evaluated. Had my RA hearing the first part of July. Was told at the conclusion of the hearing that I'd have my answer back in 14 days. A month went by with no communication. I called and inquired as to the status of my RA hearing? I was told that I'd be getting a certified letter in the mail on Friday of the following week. Well, nothing showed up and I waited another month or so and checked back. I was then told be patient that it was in the hands of the law department and that I'd be hearing something real soon. In the meantime my application for Disability Retirement was submitted and two weeks ago my HR sent me a copy of the paperwork that they sent to OPM. The forms filled out by my manager stated that I had an impeccable career before I suffered major health issues and that since then, I could barely do any of the essential functions of my job and that my attendance went from nearly perfect to missing about nine months of time over the last couple of years. The agency concurred with my manager's comments and the Reasonable Accommodation folks filled out the paperwork stating that they could NOT accommodate me. A week after this was all sent to OPM, the RA team and my HT came back with the reassignment offer. Quite frankly, many of the responsibilities are the same but on the midnight shift, five pay grades lower, and 22k less per year in pay.

My position is that I asked for this accommodation back in June. It has taken them five months of get back to me with an answer but I only asked for a 6 month accommodation. That time period would have been close to ending now and I have made drastic improvements in my attendance after getting a written warning about LWOP. I'm still not up to speed on my job duties, and quite frankly I may never be, but I am here and doing the best I can so I'll just have to play it by ear. I did get approved for FMLA this week so I hope that this added protection can come into play here, even when I do turn down the reassignment offer.

Thanks again!
gembarok  
#8 Posted : Friday, November 8, 2019 5:55:16 AM(UTC)
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Originally Posted by: PostalGuy66 Go to Quoted Post
Understood, and thank you
My position is that I asked for this accommodation back in June. It has taken them five months of get back to me with an answer but I only asked for a 6 month accommodation. That time period would have been close to ending now and I have made drastic improvements in my attendance after getting a written warning about LWOP. I'm still not up to speed on my job duties, and quite frankly I may never be, but I am here and doing the best I can so I'll just have to play it by ear. I did get approved for FMLA this week so I hope that this added protection can come into play here, even when I do turn down the reassignment offer.

Thanks again!


Greetings,

If it were me and I felt I couldn't work with my agency or that maybe they needed a little incentive to do the right thing... I would ask to speak with your EEO rep because this is what we call an "Unnecessary delay," in responding to your request and is a violation of the Rehab act. "An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA." It never actually defines what is considered unreasonable, but it does say, "In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors would include: (1) the reason(s) for the delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide."

I would also use the words, "Constructive Discharge," quite liberally. It seems to me delaying a RA for 5 months of a 6 month request would be trying to make you fail. Times like these, sometimes you have to push back a little to make sure the agency does the right thing. Read more here.

https://www.eeoc.gov/pol.../docs/accommodation.html

S/
K
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PostalGuy66 on 11/8/2019(UTC)
Sofedup  
#9 Posted : Friday, November 8, 2019 4:06:49 PM(UTC)
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If you want to get things moving, and mgt is sandbagging your request, demand to speak to the DRAC chairperson. ( District Reasonable Accommodation committee ).
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PostalGuy66 on 11/8/2019(UTC)
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