Posted: 9/21/2007 - OPM's PHONY ATTENDANCE DEFICIENCY RULE
Summary:
If OPM Refuses To Recognize Your "Service Deficiency" You Probably Will Not Win Federal Employee Disability Retirement.
Except under unusual circumstances, a Federal or Postal employee seeking OPM disability retirement, must demonstrate at least one of three possible service deficiencies; either a deficiency in attendance, performance or conduct.
The employee also has to demonstrate that the particular service deficiency was caused by the medical condition. Thus, just because you have many absences, or lousy performance does not automatically lead to the conclusion that they they were the result of your medical condition.
After all, you may just as well have been out shopping at the mall as applying yourself to your work or showing up at the job. I don't see anyting unreasonable for the government to want to know whether you were out shopping or too sick to work.
But I do see it as unreasonable, for the government to invent an attendance deficiency, which rule does not exist, which is specifically designed to make sure that you will lose your right to Federal employees disability retirement.
I represented one client whose performance could not be shown to be unsatisfactory and therefore
deficient, given the simple fact that for ten years the Postal Service had never given her a performance evaluation. Without an unsatisfactory performance evaluation, or any evaluation for that matter, how can you demonstrate a deficiency in performance.
On the other hand, because of her medical condition, she had been on approved LWOP for nearly a year, running up a
monumental attendance deficiency.
My strategy was obvious. Forget about poor performance (although it has to been poor if you are not there to perform) and focus on attendance or rather the lack of it.
But OPM made sure that wouldn't work (although we won in the end).
OPM simply stripped her of
that "attendance deficiency,"by applying a "rule of law," which didn't exist then and doesn’t exist now.
In its initial decision ruling against her, it said:
"Your
supervisor only documents a deficiency in your attendance. Because your
file shows a deficiency in your service due to attendance rather than
unsatisfactory performance, your application for disability retirement
would have to be based on the existence of a medical condition for good
medical reason warrants restriction in you coming to work due to:
--a risk of sudden or subtle incapacitation which would be likely to result in harm to others, or
-a risk of further health impairment by working, or
-a risk of transmission of a communicable disease, or
-because an advanced state of the disease or injury makes it totally unreasonable to expect you to work.
The information does not prove that you meet these criteria."
Baloney!
The
law does not set out such criteria. It does not set out a list of "good
medical reasons," for determining whether you have an attendance
deficiency just as it does not set out a list of "bad medical reasons."
Simply put, no list of acceptable or unacceptable reasons exists in any
statute, rule, regulation or case.
Not only does such a rule not exist, but consider the logic of having such a rule.
An attendance deficiency can be caused by reasons other then the reasons listed by OPM in its nonexistent rule.
For instance, you
may be too sick to go to work on repeated occasions but not have "an
advanced state of the disease or injury." The beginning of a disease
can disable you just as can an "an advanced state." And how many employees
have you come across who have an attendance deficiency because they
risk transmitting a communicable disease to others?
This is not isolated an instance of an OPM decision-maker calling the wrong shot.
In my experience, with hundreds of cases, this same nonexistent "law" has been used many times over many years,
to wipe out an applicants' attendance deficiencies and with it his or
her right to disability retirement.
In letters and briefs to OPM, I regularly chide them for this sham but it is as though someone once typed this bogus rule into OPM's word processors and they remain stuck there. What Federal employee denied disability retirement on this ground, is likely to figure out, that their loss was the result of government fraud.
...back to headlines
......................................................................................
|
