by Peter Casciano, Attorney
It may be counter-intuitive for some, but a successful disability retirement claim contains evidence that your job performance is suffering in some way.
Said another way, your medical condition must be hindering your ability to do your job in some objectively provable way.
Because the federal government’s leave program is so robust, sometimes on paper it may look like you are successfully doing your job despite taking loads of off-days. Some federal employees that have been working for years have month and months of leave saved up. That leave is there for you to use, and you should! However, the liberal use of leave that you have saved up may not be enough to convince OPM that you have the requisite “service deficiency.”
Many clients and prospective clients ask how much time off they need to take in order to satisfy OPM. There is no definitive amount. Answering that question in a blog would be irresponsible of me for many reasons.
First, the job requirements of every federal job are different. Some jobs can easily tolerate more days off than others. That is just a fact. Second, what are the personalities like of the decisionmakers involved at your agency? Some HR departments and some supervisors are more understanding than others. We all know about those supervisors that will reprimand or worse just based on a couple of unscheduled days off. Its important to remember that if you have a bone fide disability retirement case, we can use these stricter-than-necessary supervisors to our benefit.
Other federal employees attempt to use their lower performance review scores as evidence of a service deficiency. This argument is tricky and not always a successful way to show OPM the service deficiency they need. For example, a stellar five star employee that now only receives three out of five stars may very well not be able to show a service deficiency. Can they show a decline in performance? Probably yes. Can they show a service deficiency? Maybe not.
The last major way to show a service deficiency is also the hardest, in my opinion. That is proving a service deficiency through conduct.
It’s an unfortunate truth that some federal employees are removed due to their alleged poor conduct at work. Some believe that this alleged poor conduct would make disability retirement impossible. Not so. Even if you are removed for poor conduct, you still may be able to obtain disability retirement. The key is whether you can link your alleged poor conduct to the symptoms caused by your disabling condition. It is not a simple task to show the nexus between your symptoms and alleged poor conduct, but it is possible. My Firm has won countless cases over the years where the client had already been removed under less than ideal circumstances.
If you have a question about a proposed removal, removal, or OPM’s service deficiency requirement, please contact me at 301-563-6685 or [email protected] so that I may learn about the specifics of your case. Based on those, we can try to formulate a plan moving forward.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685