Federal and Postal Disability Retirement: What the Agency May Say

Individuals can and do tell untruths (an euphemism for a “lie”); organizations, as a collective congregation of multiple individuals, can therefore also convey negations of truthful statements (a further euphemism, stated diplomatically to avoid the unpleasantry of a direct statement).  Of course, the justification for such factually incorrect statements is that there is a “difference of perspective” or of an opinion which is not in agreement with another’s.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the portion of a Federal Disability Retirement application which the Agency must complete — most notably the Supervisor’s Statement (SF 3112B) and the Agency’s Certification of Reassignment and Accommodation Efforts (SF 3112D) can and most often do contain misstatements, differing perspectives and negations of untruthful statements.

They are not like the other forms which must be completed by the Agency — i.e., the checklist, the Certified Summary of Federal Service, etc., where the information provided can be compared to factually verifiable documents, statements, etc., and therefore will be constrained by objective and ascertainable facts.

Unfortunately, there is “wiggle room” on both the SF 3112B and the SF 3112D, and agencies tend to utilize the wide expansiveness of such roominess to move about.  That is why, what the agency says or might say, must be preempted as much as possible by the medical report and other documentation.  By providing as much of an airtight case prior to submission of the disability retirement packet to the agency, one increases the odds that the impact of what the agency says, will be minimal, and minimized.

Of course, there is then the further problem of the inaccuracies engaged in by the U.S. Office of Personnel Management itself — but that is another story to tell, and one which must be categorized in a department beyond “fiction”, but more akin to the genre of “fantasy” or “science fiction”.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Agency Actions & OPM

The argument in a Federal Disability Retirement application under FERS or CSRS goes as follows:  An Agency has determined that a Federal or Postal employee is medically unable to perform one or more of the essential elements of one’s job; that Federal or Postal employee cannot be accommodated; the case-law states that, at a minimum, the agency conclusions have a persuasive effect upon a Federal Disability Retirement application; ergo, the Office of Personnel Management should approve the Federal or Postal employee’s Federal Disability Retirement application under either FERS or CSRS.

The problem with such an argument, if relied upon exclusively, is threefold:  (1)  The statutory mandate as to which agency makes a determination upon a Federal Disability Retirement application under FERS or CSRS is misplaced, (2) The Agency, whether the Flight Surgeon at the FAA who determines that an Air Traffic Controller is medically unqualified to continue in his or her job, or the Postal Service who determines pursuant to the National Reassessment Process (NRP) that there is no longer a job available at the Postal Service, or any other agency which determines that no accommodations can be provided — has not applied all of the legal criteria under the laws and statutes governing Federal Disability Retirement applications, and (3) the focus from the perspective of the agency is a “second-tier” focus — of whether an accommodation can be provided to the Federal or Postal employee to see if the efficiency of the Agency can continue, as opposed to the “first-tier” issue of whether the Federal or Postal employee has a medical condition such that it satisfies all of the criteria for a Federal Disability Retirement application.  

As such, it is the focus of the respective agencies which differentiate the possibility of an agency action being merely persuasive, as opposed to determinative, in a Federal Disability Retirement applicationunder either FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Agency Overstepping

The Office of Personnel Management is the Federal Agency which reviews, evaluates and determines the eligibility of an applicant for Federal Disability Retirement benefits under FERS or CSRS.  The Applicant’s Agency — in whatever sector, department or facility — is supposed to help process the Federal Disability Retirement application, by filling out its required parts and answering certain fundamental questions.  For example, the Agency must determine whether or not it can “accommodate” an individual’s medical conditions, or reassign him or her to another position at the same pay or grade, and one which the applicant is qualified for.  Further, the Supervisor must complete a “Supervisor’s Statement” (SF 3112B) which provides certain information concerning the conduct, performance and attendance of the applicant, as well as any adverse impact which the applicant’s medical conditions may have had upon the Agency’s ability to complete its work and mission.  Where the Agency oversteps its authority, is when it deems itself to be the pre-judging entity in the place of the Office of Personnel Management.  The Agency neither has the authority nor the knowledge to be making a “recommendation” or a judgment on the viability of a Federal Disability Retirement application.  In the instances where it attempts to do so, it is overstepping its authority.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire