Federal Employee Medical Retirement: The Last-Minute Application

If one fails to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management (i.e., the Statute of Limitations for all Federal and Postal employees in filing a Federal Disability Retirement application, whether under FERS or CSRS, is 1-year from the time of separation from Federal Service) within the time prescribed, then one cannot make any legal arguments or supplement one’s case — precisely because the Federal or Postal (former) employee has failed to meet the minimum statutory deadline.

However, once filed, the case can be supplemented and “added to”; additional evidentiary documentation may be submitted; but amendment to the Federal Disability Retirement application will be severely limited, because you cannot withdraw the application in order to change it — if the withdrawal is effectuated after the 1-year Statute of Limitations passes.  This is because the Federal or Postal Disability Retirement applicant is restricted by the rules governing SF 3112A, where one cannot “add to” the list of diagnosed medical conditions once it is received by OPM (although there are ways to characterize such identified conditions to somewhat circumvent the restrictions).

Sometimes, because of the medical condition itself, or for unforeseen circumstances which are beyond the physical, emotional or cognitive control of the potential applicant for Federal Disability Retirement, such procrastination is simply a fact which must be dealt with.  Whether the day before the 1-year cut-off, or 10 months before, once filed, at least the Federal or Postal employee will have the opportunity to make legal arguments, and for the most part, the ability to supplement his or her case.

It is only if it is NOT filed on a timely basis, that such additional activity will then be precluded.  Thus, the obvious rule:  File before the deadline.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: A Hypothetical

The case-law opinions from the U.S. Merit Systems Protection Board, as well as from the U.S. Court of Appeals for the Federal Circuit, upholds the statement added onto Question 4 of Standard Form 3112A, the form which specifically requests the Applicant’s statement of disability, which asserts:  “We consider only the disease and/or injuries you discuss in this application”.

Failure to identify a particular medical condition can have an adverse impact upon one’s application for Federal Disability Retirement benefits.

Take the following hypothetical: a Federal or Postal employee is terminated from Federal Service; he or she files for Federal Disability Retirement benefits within one (1) year of being separated from service.  While the Statute of Limitations has already been met because the filing has occurred within the 1-year timeframe, during the process of awaiting a decision from the U.S. Office of Personnel Management, the treating doctor has diagnosed with greater specificity the primary and underlying cause of the medical condition.

In his or her haste to file, the (now former) Federal employee quickly noted the diagnosed medical conditions in response to question 4, but nowhere is there an indication of the newly-diagnosed medical condition.  During the wait, it is now more than 1 year from the time of separation.  The quandary:  The Federal Disability Retirement application cannot be withdrawn, because the 1-year Statute of Limitations has already passed, and so he or she is no longer able to re-file.  No additional medical conditions can be added onto the SF 3112A.

Is there a problem? The answer:  Under this hypothetical, potentially yes.

Even if OPM approves the case, there may be future difficulties if OPM approves the Disability Retirement application based upon a medical condition listed, but resolved.  Care in identifying and properly annotating the medical conditions must be taken in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Listing, Prioritizing and Weaving

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal or Postal employee who is formulating the Applicant’s Statement of Disability on Standard Form 3112D must describe the medical conditions which will be proven to impact upon one’s inability to perform one or more of the essential elements of one’s job.

Submission of the “list” of medical conditions will concretize and place boundaries around the issue to be litigated. Once submitted through the Agency or the U.S. Postal Service, then forwarded to Boyers, PA and assigned a CSA Number, the medical conditions described will be the only ones which can be argued.  Further, once a Federal Disability Retirement application is approved, the approval letter will have an attachment which describes and identifies those medical conditions which the Office of Personnel Management found the applicant to be disabled for (is this the feared split infinitive?).

Thus, by way of example, if a Federal or Postal employee filed for Federal Disability Retirement benefits based upon medical conditions X, Y and Z, and OPM based its approval only upon medical condition Y, then for any future Medical Questionnaire requesting an updated status on the annuitant’s medical condition, it is only medical condition Y which would be relevant.

As such, in the very preparation of the applicant’s statement of disability, important decisions must be made which will have significant future consequences:  which medical conditions to list; how to prioritize the medical conditions; whether to weave secondary conditions into the applicant’s statement, and to what extent, etc.

While some of the issues will be determined by the medical narrative report(s) prepared by the treating doctors, it is ultimately the responsibility of the Federal or Postal employee who is considering filing for Federal Disability Retirement benefits — along with his or her attorney — to set the course for future events in a manner which will ensure not only present success, but future security.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Aggregate of Conditions

In debate, there are two primary methodologies of attacking:  the micro-approach, where each individual strand of an opponent’s argument is dismantled, leaving the opposition with no singular weapon to use; or the macro-approach, where — because some of the individual arguments may withstand scrutiny — the universal umbrella of the argument as a whole is attacked, thereby dismantling the entirety of the whole.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, OPM will utilize one of the two approaches.  At times, OPM will selectively choose one or two of the medical conditions, barely mentioning the rest, then attack the lack of documentary support on those particularized medical conditions.  Or, at other times, OPM will make sweeping generalizations and fail to specifically identify, and selectively ignore, the details of individual medical conditions.  Regardless of the methodology of approach, the ultimate result of either approach is a denial.

The question is how one responds to either approach.

The answer is often based upon the construction of the Applicant’s Statement of Disability.  This is where it is important to weave the particular with the aggregate, where the construction of each individual medical condition is argued to depend upon the greater whole, and where the cumulative impact of the various medical conditions constitute an inseparable whole.  The flexibility of language allows for this; the medical narrative report should reflect this.

This is why spending valuable time at the front end of a Federal Disability Retirement case is important; for the later stages of the administrative process may well depend upon it.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Secondary Depression and Other Contingent Medical Conditions

Often, in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, one must selectively choose, based upon the medical reports received from one’s requested doctors, the medical conditions upon which one’s Federal Disability Retirement application will be based.  

Sometimes, there is confusion as to which medical conditions should be listed, how it should be “prioritized” (how can one prioritize multiple medical conditions when any or all of them may have debilitating symptomatologies?) and whether some should be relegated to mere peripheral, ancillary discussion, as opposed to retaining a centrality of focus and prominence.  

For example, “Secondary Depression” is a term which often will accompany chronic and debilitating pain.  It may, over time, become a primary source of debilitating disability, but the reason why it is initially, and for some time thereafter, characterized as “secondary” is precisely because it is contingent upon the existence of the primary medical condition — that which results in the chronic and debilitating pain.  As such, if the secondary depression is listed as the primary basis for a Federal Disability Retirement application, but sometime later the originating medical condition which is the foundational cause of the depression gets better, then there is the potential ramifications that the secondary medical condition (“secondary depression”) will resolve itself.  

Such considerations can be important in determining which medical conditions to list, inasmuch as in a future time, if one is found to be disabled by the Office of Personnel Management for a secondary medical condition and is asked in a future Medical Questionnaire to have one’s doctor determine the disability status at a later time, it may become an important issue.

Linking potential future problems to thoughtful preparation in the present time is important in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Choosing the Medical Conditions

Often, in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the question is asked as to which medical conditions should be included in a Federal Disability Retirement application.  The obvious answer, of course, is to identify the “most serious” of the medical conditions, with a secondary consideration being the ones which impact one’s ability to perform the essential elements of one’s job.

Whether to list “all of them” is a separate question, and then there are the subtleties which further delve into a more detailed analysis of the creation of an effective nexus between one’s medical conditions, the job description which one is supposed to be doing, and the provability of the medical conditions identified and described.

Inasmuch as a Federal Disability Retirement application under FERS or CSRS is a “paper presentation” to the Office of Personnel Management (and yes, the concept of a “paper presentation” still applies even if and when OPM converts entirely to the technological next-step of a paperless system; the Federal or Postal employee must still present a formatted application), the admixture of legal and medical issues will ultimately come about.

The conceptual distinction between the diagnosis and the symptomatologies; the extent of willingness of what a treating doctor will state; the concordance between the diagnosis, the symptoms described, and their impact upon the particular elements of one’s position description; the potential impact of being found “disabled” by the Office of Personnel Management based upon a “minor” medical condition which may resolve itself in the future, as opposed to a more serious-listed one; the nebulous areas of “syndromes” (as in Chronic Fatigue Syndrome) and the description of symptoms and making sure to relate the symptoms to a particular medical condition — these are all “subtleties” which involve an intersection between the legal standard of proof and the medical “facts”, in formulating a Federal Disability Retirement application under FERS or CSRS.  But that it were as easy as simply listing one’s medical conditions.  But, alas, OPM is a Federal bureaucracy, and the combination of “the law” and “a bureaucracy” can only lead to one result:  a conundrum.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Stress & Exacerbated Medical Conditions

Often, the generic designation of “stress” is the underlying medical condition; other medical conditions can exist, and perhaps are exacerbated by the underlying condition of “stress” — or, at least that is the suspicion, both by the Federal or Postal worker who is suffering from such conditions, and (hopefully) understood by the treating medical doctor. 

While failing to have direct causal linkage, the situation often arises where the chronic medical condition may have periods of remission, followed by severe episodes of unrelenting exacerbations.  The problem with such medical conditions in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, is that the medical condition must prevent one from performing one or more of the essential elements of one’s job, and such a condition must last for a period of 12 months or more. 

Medical conditions which “wax and wane” (OPM’s favorite description of Fibromyalgia) and are “not severe enough to preclude an individual from the workplace altogether” (another of OPM’s favorite descriptive rationalizations for denying a Federal Disability Retirement application — which is legally inconsequential and a mis-statement of the laws governing Federal Disability Retirement) — present a special challenge in preparing, formulating and filing a Federal Disability Retirement application.  However, even a challenge such as “stress” and a secondary medical condition which is exacerbated for episodic periods, is one which can be overcome, and successfully overcome. 

The fact is that the focus is often misplaced.  Instead of asking the doctor to focus upon each individual medical condition, it is the wiser route to have the doctor discuss all medical conditions in their totality, and show that the complex interaction of the primary and secondary medical conditions together prevent the Federal or Postal employee from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Which Medical Conditions to List II

If you list all of the medical conditions you suffer from on the Applicant’s Statement of Disability (SF 3112A) in filing an application for Federal Disability Retirement benefits under FERS or CSRS, then you take the risk that the Office of Personnel Management may approve your disability retirement application based upon a condition which is only marginally serious (which can lead to some future problems, if OPM requests that you respond to an OPM Medical Questionnaire, inquiring about your current status and your disability).  On the other hand, if you fail to mention a medical condition, and you file your Federal Disability Retirement application, once you are assigned a CSA Number, you are precluded from amending or adding to the list of medical conditions described in your Applicant’s Statement of Disability.  Thus, discretionary decisions must be made.  You must strike a proper balance between listing the major medical conditions, and deciding which medical conditions truly impact your ability/inability to perform the essential elements of your job, and discern which conditions and symptoms are likely to remain chronic, or continue to deteriorate.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Which Medical Conditions to List

I am often asked that question — will all medical conditions be listed?  What happens if a medical condition is not listed, but later develops into something serious?  That is the essence of the problem of the unlisted medical condition, of course.  In a FERS or CSRS Federal Disability Retirement application, once the packet is submitted to the Office of Personnel Management and a CSA Number is assigned to it, you are precluded from amending the Applicant’s Statement of Disability by adding further medical conditions.

Thus, the problem in not listing a medical condition (or a symptom thereof) can have exponential significance.  In such a situation, one option would be to withdraw the Federal Disability Retirement application and resubmit it anew.

The loss of time involved, however, is one obstacle which often makes an applicant pause at such a drastic step.  Another problem — one which cannot be overcome — is if you have filed within the statutory timeframe, but the 1-year of separation occurs after you filed your application for Federal Disability Retirement under FERS or CSRS.  In that hypothetical, you are “locked in”, because you cannot withdraw your application.  To do so would leave you with no avenue to “refile”, because the 1-year statute has already passed and precludes you from filing again.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Listing Specific Medical Conditions

Because the essence of an OPM Disability Retirement Application under FERS or CSRS goes to the symptomatologies and their impact upon one’s ability or inability to perform one or more of the essential elements of one’s job, it is therefore important to weave throughout the narrative of one’s Statement of Disability the symptoms, the impact, the descriptive events, which impact one’s ability/inability to perform the job.  Thus, while listing specific diagnosed medical conditions shoulder certainly be a part of any such application, the narrative itself should include the description of multiple symptoms resulting from the diagnosis.  Further, while the applicant is disallowed from “adding” any new medical conditions once it has been received by the Office of Personnel Management and assigned a CSA number, nevertheless, the applicant is not a medical doctor, and if a medical condition which later develops or becomes clarified during the process of review needs to be supplemented with an additional medical report or results of a diagnostic test, if the medical condition can be reasonably related to a described symptomatology or description in the original statement of disability, then in all likelihood, it will be allowed in for review.

Sincerely,

Robert R. McGill, Esquire