OPM’s Medical Questionnaire and the Issue of Accommodations

In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations.

OPM’s Medical Questionnaire

At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence — that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully — is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.

Some basic rules in responding to OPM’s Medical Questionnaire:

Rule #1: Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.

Rule #2: Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it — why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.

Rule #3: Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations — one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.

Finally, Rule #4: Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”

Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.

Second Issue: Accommodations

Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “’subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.

The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.” In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term ‘vacant position’ in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.

I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired — a right — in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future — one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways: (1) view my website at www.FederalDisabilityLawyer.com; (2) email me at federal.lawyer@yahoo.com; or call me at 1-800-990-7932.

Sincerely,

Robert R. McGill, Esquire

Recurring Issues of Disability Accommodation, Light & Limited Duty, and the Form Filling of the OPM SF 3112D PDF File

The issue of Agency Accommodations — whether or not an agency can truly “accommodate” an individual; what constitutes a legal accommodation as opposed to temporary light-duty arrangements which do not constitute legally viable accommodations under the standards as expressed in Bracey v. OPM and other cases — keeps coming up in the form of questions and concerns.

Let me just state a few thoughts: First, obviously, the best scenario is if the Agency checks off block 4(a) of SF 3112D, acknowledging that the “medical evidence presented to the agency shows that accommodation is not possible due to the severity of the medical condition and the physical requirements of the position.” Second, however, even if the Agency does not check off 4(a), it is not necessarily a problem, or even a valid concern. Agency Human Resources personnel are notoriously ignorant of the current case-law, and often mistake ad-hoc temporary assignments as constituting an “accommodation”, when in fact they represent no such standard or level of acceptability in disability retirement law. Finally, it is always mindful to remember that disability retirement is a medical issue, not one which is determined by non-medical personnel, and that is why it is important to focus first and foremost upon obtaining a legally sufficient medical narrative report.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

Accommodation Under FERS & CSRS Disability Retirement

The issue of Accommodations is always an important one in FERS & CSRS disability retirement cases. Agencies on the one hand will often attempt to “put together” a set of duties for the employee to perform, and try and keep a productive employee with the Agency.

There is nothing wrong with this. Indeed, it may even be commendable for the Agency to try and “accommodate” a good employee in such manner. However, such an ad hoc set of duties is not legally an acceptable “accommodation”, and when it comes to filing for disability retirement, it does not preclude a person from being able to file for, and be eligible for, disability retirement. Court cases have upheld this view.

Thus, in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

Note this last provision, because that is the “all-important language” with respect to the issue of accommodations. What the Court in Bracey stated, is that the term “accommodation” is a legal, precise term, and it means that in order to be a true accommodation, the Agency must do one of two things: Either, provide for working conditions such that an employee can continue to perform all of the essential elements of the position that the employee is occupying, or place that employee into an existing vacant position — at the same pay or grade. This latter point is also important: in Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Remember: if you have a medical condition such that you can no longer perform one or more of the essential elements of your job, your Agency can certainly give you a set of duties to keep you in that position, and if you can do those duties, and like the type of work provided, that is great. However, if and when a new supervisor comes he, that supervisor can negate such an ad hoc set of duties, and declare that all employees must henceforth be able to do all of the duties of the official position description. That is why an ad hoc set of duties does not constitute an “accommodation” under the law — because what is assigned “ad hoc” can also be taken away “ad hoc”.

Unless a Federal Employee is legally accommodated, he or she has the option of filing for disability retirement. Don’t be fooled by an Agency who says, “Don’t worry; we’ll reduce your workload and let you work a light-duty position.” That “light-duty” position will not necessarily be permanent, especially when the next Supervisor comes along.

Sincerely,

Robert R. McGill, Attorney