Federal Disability Retirement: Taking Advantage of the Long Wait

Preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS should not be viewed as a singular event with a distinct and bifurcating cut-off date, where once the medical documentation has been filed with the Office of Personnel Management, it is merely a long process of inactivity in waiting.  

The circumstances at the U.S. Office of Personnel Management have obviously changed.  A few years ago, the expected “wait-time” once a CSA number was assigned to a case, was approximately 60 – 90 days.  That period of waiting has now been extended, and extended considerably, for reasons which the Office of Personnel Management have cited as a “backlog of cases”.  

Because of those changed circumstances, it is wise to take advantage of the wait period by recognizing and bringing together various elements of a Federal Disability Retirement case:  since one’s medical condition must last a minimum of 12 months, and because the waiting time with OPM has been extended, it is probably a good idea to continue to “supplement” the medical records with the Office of Personnel Management, by forwarding, faxing, mailing, etc., any updated medical records, treatment notes, office notes, surgical operative notes; clinical examination records; any functional capacity evaluations, etc.  

Any medical notations which show the continuing care, treatment and inability to perform the essential elements of one’s job, will only reinforce and strengthen the argument that (A) one has a medical condition such that one cannot perform one or more of the essential elements of one’s job, and (2) that as a continuing medical condition, it is not only lasting a minimum of 12 months, but is factually a chronic and continuing medical condition.

 Take advantage of the longer wait period, by actively engaging in the management of one’s Federal Disability Retirement application.  

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Unguided Doctor

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to guide the doctor into properly preparing and formulating the medical narrative report.

This is not a matter of “telling what the doctor to say”.  The treating doctor is obviously aware of the types of medical conditions that the patient — the Federal worker who is filing for Federal or Postal Disability Retirement benefits — is suffering from.  The doctor’s professional integrity, as to what his or her medical opinions are, should always be preserved and be paramount.  

Further, it is merely a factual issue as to whether the doctor will be supportive of such an endeavor, and such support can only come about by having a direct and frank discussion about the requirements of one’s positional duties and how those positional duties are impacted by one’s medical conditions.  

Rather, the issue of guiding the doctor is one of informing him or her of the particular elements which are necessary and unique in a Federal Disability Retirement application, which must be addressed in a narrative report.  For, otherwise, the unguided doctor will simply issue a narrative report with a different focus and a different end.

Guidance is merely knowing what the goal of a particular activity requires, and unless the treating doctor understands the technical requirements of what is needed (the end-goal), that doctor will merely attempt to meander by accident in a formulation which may include elements which are more harmful, than helpful, in preparing, formulating, and filing for Federal Disability Retirement benefits under either FERS or CSRS.

Sincerely, Robert R. McGill, Esquire

OPM Disability Retirement: The Trickiness Concerning Accommodations

The issue of “Accommodations” can be a rather tricky one.  Over the years, the term has expanded and been refined by various legal precedents, and the technical, term of art now carries some meanings which, if not understood properly, can entrap Federal and Postal employees into making wrong decisions while in the process of preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS.  

In simplistic terms, to be properly accommodated by an Agency, the Federal or Postal worker must be provided with an accommodating “X”, such that he or she can continue to perform all of the essential elements of one’s job.  Further, temporarily modifying or suspending certain elements of a position description, for purposes of allowing for the Federal or Postal Worker to continue working, does not constitute an accommodation under the law.  

This makes sense, if one stops to think about it, and for the following reason:  such an arbitrary modification of work duties by a Supervisor or Manager, can just as arbitrarily be taken away.  As such, temporary “accommodating” actions — while commendable and allowable in order to let the Federal or Postal worker continue to work — does not preclude the Federal or Postal worker from proceeding with his or her Federal Disability Retirement application.  

Additionally, remember that an Agency’s effort for “Reassignment” is part of the Standard Form 3112D (Thus, the Form is entitled, “Agency Certification of Reassignment and Accommodation Efforts”), and comprises part of the Agency’s attempt to “accommodate” the Federal or Postal employee.  The issue of “reassignment” is a separate, but related one, and that issue is often influenced by the dependent clause which should not be overlooked in a Federal Disability Retirement application:  that a person can no longer perform one or more of the essential elements of a particular job, or any similar job. 

By having a working knowledge of the issues surrounding Federal Disability Retirement laws, even in a rudimentary state of knowledge, one acquires a better chance of success.  Approval is a long and arduous process. Knowing the lawand its impact is part of that process.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Creating a Meaningful Bridge

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is obviously important to construct an effective bridge, or nexus, between one’s identified medical conditions and the type of positional duties which one performs at the Federal Agency or the U.S. Postal Service.  

In doing so, one should keep in mind certain essential points, each from the perspective of the Office of Personnel Management (which is the agency which will determine whether the Federal or Postal employee/applicant’s Federal Disability Retirement application will be approved or denied).  

For instance, the Office of Personnel Management (OPM) will only consider those medical conditions which are identified in the Applicant’s Statement of Disability (SF 3112A).  Once a CSA Number (an administrative identifier which is assigned by OPM — an eight-digit number beginning with “4” for CSRS employees and ending with a “0”; and for FERS employees, beginning with an “8” and ending with a “0”) is assigned to an application, the Federal or Postal employee is no longer able to add any further medical conditions without withdrawing the application completely, and re-submitting it anew.

Further, while the Office of Personnel Management will consider specific duties and descriptions of duties which are delineated and expanded upon in the narrative portion of SF 3112A, it is the “official” position description which will ultimately be controlling. Thus, a logical variance from the official position description as to what a Federal or Postal employee does, will not make any difference.  However, if what the Federal or Postal employee states that he or she is doing, is completely at odds with what the positional description states that he or she should be doing, then the controlling default will be the official position description.  

It is wise to keep these two perspectives in mind, in creating an effective bridge for a Federal Disability Retirement application.  For, ultimately, it is the perspective from the “other side” which matters, and as such, OPM’s perspective of how a Federal Disability Retirement application is reviewed and considered, is an important aspect in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: A Bridge Too Far

The step-by-step process which the Federal or Postal employee must engage in for purposes of formulating an effective Federal Disability Retirement application under FERS or CSRS, is defined by the bridge, or “nexus”, which one must formulate, connecting the two separate entities:  on the one side are the medical issues; on the other, one’s positional duties which one has been engaging in and successfully performing all these many years for one’s agency or the U.S. Postal Service.  

The job of the potential Federal Disability Retirement applicant is to bring the two separate and distinct entities together, by preparing and formulating a connecting “bridge” or “nexus” between the two.  This is because one of the most important evidentiary showings that one must prove, by meeting the legal standard of “preponderance of the evidence“, is that the Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s official positional duties.  

The problem with any such bridge which must be constructed and carefully formulated, however, is that many Federal Disability Retirement applicants put forth too much information, to the extent that some information may in fact defeat or otherwise damage the connection, by providing information which may be irrelevant (less damaging, but creates peripheral problems and confusion), of ancillary legal issues (may be more damaging, depending upon whether the Federal Disability Retirement applicant has brought in work-related issues which may point to a description of “situational disability”); or, provide information on certain medical conditions which contradict other information provided (again, often more damaging to a case).  

It is always important to provide enough information to the Office of Personnel Management to meet the burden of proof, of a preponderance of the evidence, in preparing, formulating and filing a Federal Disability Retirement application; too much information will sometimes be damaging; too much of the wrong kind of information may be very damaging.  As the title of the well-known book implies, one must be careful not to construct a “bridge too far”.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Step-by-step Process

Complexities abound in every field, and the solution to preventing one from become embroiled in such confounding complexities is to divide the complexities into manageable entities.  While any bifurcation may be arbitrary, it does not mean that there is not a reasonable basis for such arbitrary division of issues.  

Thus, in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to identify the primary medical issues which are impacting one’s ability/inability to perform one or more of the essential elements of one’s life.  It is often queried as to “which one” of the multiple medical conditions should be included in preparing the Applicant’s Statement of Disability (Standard Form 3112A), and further, what are the “primary essential elements” which should be described.  

Both questions pose a complexity beyond an ability to answer such a question in a generic fashion, precisely because each case is unique.  As to the former question, it all depends upon the impact of the latter question; and as to the latter question, it all depends upon the answer to the former question.  

This circularity of interdependence, of which of the major medical conditions one should include, depending upon the type of essential elements of one’s job, is the complexity which must be unraveled, and it is in the process of this unraveling that one then begins to formulate the “bridge” or the “nexus” between the type, extent and severity of one’s medical condition (or its variance of pluralities of conditions) and the multi-tasking nature of the essential elements of one’s positional duties.  

It is a complex process, but one in which the various components begin to provide for a foundation of that bridge, which must be constructed carefully, with scrutiny, and with deliberate reasoning.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Advancing from Thought to Action

In speaking with thousands of Federal and Postal employees, it is the pervasive thread of the final step which emanates from the uniqueness of each case, where the realization of that which separates the personal circumstances from the “rest” of us, can be summarized as follows:  The career of the Federal employee; the dedication and loyalty shown; the acknowledgment of how much our ego, our self-worth, and sense of who we are is dominated by the perception of what we do in the working compartment of our lives; and as Vonnegut said so eloquently, “So it goes”.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is that “final step” which is so difficult to take — of transitioning from thought to action, from theoretical construct to practical application; of accepting a diminution, and ultimate elimination, of continuing to engage in that worthy endeavor variously called, “a career”, “one’s profession”, or the answer to the question which every encounter poses:  “So, what do you do?”  And it should be understandable.  

So much of one’s life is taken up by one’s work, that to consider the option because of circumstances beyond one’s control — of a medical condition which has come to impact one’s ability to perform the essential elements of that which defines the Federal or Postal employee — is a difficult step to take.  But it is better to control the options available than to allow for circumstances to dictate one’s future; better to work out a timetable than to submit to an emergency; and better to drive a graceful road, than to be forcibly strapped into a roller coaster.

The step from thinking about filing for Federal Disability Retirement, to acting upon it, is a major event in one’s life.  But to delay, procrastinate, and ultimately allow for others to determine one’s destiny, is an option worse than taking the necessary step.  Indeed, it is no option at all, but an uncontrolled event.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: A Real-life Hypothetical

Assume the following hypothetical:  A Federal or Postal employee who is 48 years old, with 25 years of Federal Service, engages in a type of work which is repetitive, day in and day out (yes, even this sentence is repetitive and redundant), full time, over the course of those 25 years.  

One day, while moving a piece of furniture at the direction of his spouse, he feels a sudden and sharp pain in his back.  He has to sit down and rest for a while.  The “for a while” turns into a visit to the emergency room, then to his family doctor.  The MRI shows a disc bulge at L5-S1, with multi-level disc degeneration, spinal stenosis, and other degenerative changes.  Despite multiple modalities of treatments, including epidural steroidal shots, physical therapy, variances of medication regimens, etc. (and you can even add a surgical intervention), the pain continues to worsen and deteriorate his medical condition.  The chronic pain prevents him from performing his job.  Whether sedentary or physical, the high distractability of the pain results in his poor performance.  

Can he/she file an OWCP claim?  Such a claim is submitted and rejected, because the issue of causality cannot be established.  An appeal is filed, and it is again denied.  The treating Neurologist and Orthopaedic Specialist are unwilling to establish a direct causal link.  But one argues:  Do those 25 years of repetitive work account for nothing?  Can it all have occurred because of the singular occurrence?  Does my medical condition reflect that of a person twice my age merely because of a single incident?  

It is precisely because causality is the crux of OWCP, that Federal Disability Retirement under FERS or CSRS is an important benefit for all Federal and Postal employees. OWCP/FECA is a benefit which is great for the limited role it plays; Federal Disability Retirement is a benefit with wider applicability, and the chance for the Federal or Postal employee to enter into another phase of life.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Responsibility of the Applicant

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the importance of adequately conveying persuasive information to the Claims Representative at the Office of Personnel Management must be a primary goal of the Federal or Postal employee.  

Rarely does a doctor, without guidance and some “prodding”, execute an administrative duty such as preparing a medical narrative report for a patient, in a sufficiently excellent manner.  The work product of a doctor is normally defined by patient care, clinical examination, and prescribing an effective course of treatment.  It is up to the patient or his/her Federal Disability Attorney to remind the doctor as to “why” it is important to provide a medical narrative report in a Federal Disability Retirement application.  

Often, it is merely that the doctor does not understand the necessity of preparing a narrative report; or, as confusing as the entire administrative process of preparing a Federal Disability Retirement application is to the Federal or Postal employee, it is exponentially more confusing to the doctor, who is normally not part of the Federal workforce (unless he or she happens to be a doctor for the Department of Veterans Affairs, or is part of the Veterans Health Care System).  

It is ultimately the responsibility of the Federal or Postal employee to convey persuasive evidence and argumentation to the Office of Personnel Management, in order to meet that burden of proof, of showing that by a preponderance of the evidence the Federal or Postal employee has proven that he or she is eligible for Federal Disability Retirement benefits. While medical records, treatment notes, office notes, etc., can often be persuasive on their own, the applicant must be able to formulate a statement and refer to “the law” in order to convince the OPM Representative that his or her case meets that burden of proof.

Sincerely, Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Inherent Complexities

It is often asked why filing for Federal Disability Retirement under FERS or CSRS is more complex, and therefor often more difficult to obtain, than (for example) Social Security Disability, or even Federal Worker’s Comp.  The simple answer is that one cannot compare apples and oranges (to quote an oft-used metaphor), but the greater inherent complexity of answering such a question involves more space than can be allotted here.

Social Security Disability, of course, has a higher standard of eligibility.  In abbreviated explanation, this means that one must essentially be “totally disabled” in order to qualify for Social Security Disability, as opposed to the “lower” legal standard of being “unable to perform one or more of the essential elements of one’s job”.  Thus, Social Security Disability cuts a wider swathe, and is generally considered to require a more onerous standard, and the resulting benefit reflects that — by allowing for restrictive ability to earn outside income, etc.  

 Worker’s Comp (OWCP, FECA/Department of Labor) is also complex in its own way, precisely because it requires a showing of occupational connection, or that the injury or medical condition was “on the job” or somehow caused by the job, the workplace, etc.  Then, its reliance upon percentage of disability, and the fact that it is not a retirement system, but a temporary mode of compensation in attempting to return the Federal or Postal Worker back to work, further contains multiple complex issues.  

Often, when a law attempts to particularize a benefit — as in Federal Disability Retirement — by focusing narrowly upon an issue (e.g., being unable to perform one or more of the essential elements of one’s particular kind of job, or any similar job), such a narrow focus creates an inherent complexity all on its own. Complexity of an issue requires a careful and studied approach; to conquer an issue, it is important to expend a great amount of time reflecting upon and scrutinizing the issue. It is only upon understanding an issue thoroughly that the complexity begins to unravel; and only then can one begin to proceed to prepare, formulate and file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire