The two legal standards dominant in a Federal Disability Retirement case must often be alternatively applied depending upon the nature of the positional duties involved. It may be appropriate to speak in terms of “functional capacities” and specified duty restrictions when it comes to physical work that involves descriptive mechanical work — i.e., being able to lift a certain amount (for most Postal employees, up to 70 pounds); bend, lift, stand repetitively throughout the day; or even in climbing ladders, remaining balanced while working on a scaffold; utilizing power tools, etc.
For more cognitive-intensive, focus-driven administrative/executive positions that require sustained and sedentary periods of consistent application, the more generalized standard as pronounced in Henderson v. OPM may be better argued — one of inconsistency and incompatibility between the job duties as a whole because of the cognitive dysfunctioning that results from the high distractibility of pain, lethargy from Major Depressive Disorder or paralyzing panic attacks from Generalized Anxiety Disorder, etc.
Or, take the work engaged by an Air Traffic Control Specialist — there is an admixture of the “inconsistency standard” as well as “specific” elements where sustained focus and concentration is reliant upon the safety and lives of hundreds, if not thousands, of people.
The two legal standards in a Federal Disability Retirement case are not mutually exclusive, and they need not be argued so before the U.S. Office of Personnel Management and beyond, at the U.S. Merit Systems Protection Board (MSPB).
Medical conditions need to be described in a “nexus-form” to the positional demands of a Federal or Postal job, for ultimately that is what a Federal or Postal employee who is filing for FERS Disability Retirement benefits is retiring from — a position description, and not necessarily the actual job that one is working at.
The disabling medical condition that the Federal or Postal employee is suffering from may both be inconsistent and possess descriptive specificity which require restrictions; and, conversely, it may be that certain elements of one’s Federal or Postal position description may require restrictions, leading to the conclusion that the position as a whole is inconsistent with the suffered medical conditions precisely because of the specific, 1-to-1 ratio of “essential element” to “identified medical condition.”
Thus can both standards be argued and used as a sword against OPM”s argument that “specific elements” need to be shown in each and every case, which is simply NOT the case.
Robert R. McGill, Esquire
Postal & Federal Disability Attorney