Beginning the Federal Disability Retirement Process

The Chinese proverb, “The journey of a thousand miles begins with a single step”, is meant to remind us that looking at a process in its entirety can result in self-defeat even before starting, and every daunting journey must begin with the small, almost insignificant, effort of initiation.

Facing a bureaucracy and an administrative process can feel like that metaphorical journey of a thousand miles.  The multiple and complex standard forms to complete; the legal criteria to meet; the need to gather, compile and consolidate the medical documentation into a linear, coherent whole; and all of this, in the face of voluntarily reducing one’s income by applying for an annuity and having to deal with the debilitating medical condition from which one suffers.

But the successful way to approach the entire administrative process known as Federal Disability Retirement, is to bifurcate it into workable portions. The SF 3107 series (reissued in May, 2014, where previous editions are now outdated) is merely informational in nature.  It is is the SF 3112 series of forms which one must take care in preparing and formulating, and especially SF 3112A, which requests for detailed information concerning one’s medical conditions, the impact of the medical conditions upon one’s ability to perform the essential elements of one’s job; and other pertinent information needed to convey compliance with a legal criteria established through many years via legal opinions issued by the U.S. Merit Systems Protection Board, as well as by the U.S. Court of Appeals for the Federal Circuit.

Yes, it is a difficult process, and one which can be eased by legal advice and expertise. But as with all journeys, to look upon the landscape and obstacles as mere hindrances to overcome, will serve one better, than to stand at the foothills and refuse to begin the journey at all.

Sincerely,

Robert R. McGill, Esquire

The Basic Question Of “What?” during the Federal Disability Retirement Application and Process

“Why” evinces a quality of curiosity, and perhaps of disbelief; “who” indicates a need to establish an identity and source; “how” demonstrates a pragmatic approach in determining a future course of action; and “what” reveals the yearning to unravel the foundations of basic principles, as in Aristotle’s methodology in his Metaphysics.

Before the first storyteller or shaman put on a mask to enhance the mysteries of healing and divination; long before the wide-eyed children gathered with the adults around the village center where the bonfire roared with flickering shadows of unknown powers beyond the periphery of the fireflies beaming in the distant darkness of dangers beyond; and well preceding the written account of human history, where anthropology and narrative fantasy melded to provide reminiscences of prehistoric days created in the imaginations of youth, the question of “what” was uttered in innocence.

What is the meaning of X? What happened? What makes a thing become itself? What is the essence of being?  Thus for any entrance into a fresh endeavor, the human need for satisfying the “what” of a matter is the prefatory step towards progress.

For the Federal and Postal Worker who is contemplating filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, the initial question might be: What constitutes a “disability”?  In that question is the key which often opens wide the conventional confinement which so many people are locked into.

For, in the traditional sense, the focus of the answer to such a question is contained in the definition and diagnosis of a medical condition.  For FERS and CSRS Federal Disability Retirement, however, the expansion of the answer goes well beyond the strictures of a diagnosis.  It is the nexus, or the connection, between the medical condition and symptoms, on the one hand, and the positional requirements (whether physical, mental or emotional) of one’s Federal or Postal work, which establishes the answer.

Once the Federal and Postal employee gains an understanding of this differentiating concept, then the doors open wide beyond the confinement of OWCP benefits or Social Security Disability benefits.  Thus does one approach Federal Disability Retirement with trepidation in asking, What qualifies as a disability?  For, contained within the question is the implicit and unspoken answer: such a query already implies a problem, and the problem likely is an impact already being felt upon one’s inability to perform one or more of the essential elements of one’s positional duties of one’s Federal or Postal employment.

As with the first causative rumblings deep in the consciousness of one’s soul, as a child first begins to question the complexity of the universe surrounding the inner self of the “I”, the question uttered alters the relationship between the being of “I” and the objectivity of “others” in a perplexing world of unanswered questions; but in the end, the “what” is a first step, and so it is also for the Federal and Postal employee who is considering filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether you are under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Non-nexus

Meeting an adequacy test may constitute sufficiency for some purposes, but not for others.  Thus, it may be enough in completing an FMLA form to have a diagnosis, along with answers to other questions on WH-380-E.  But mere identification of a medical condition via a diagnosis, along with a description of symptomatologies will not be enough to meet the sufficiency test in a Federal Disability Retirement application.

People often assume that having a medical condition in and of itself sufficiently explains the severity of one’s condition, and any implied “blank spaces” can be filled in by the mere existence of such a medical condition.  But Federal Disability Retirement, whether under FERS or CSRS, filed through, reviewed by, and approved or disapproved by the U.S. Office of Personnel Management, must be proven by a preponderance of the evidence that the medical condition itself prevents the Federal or Postal employee from performing one or more of the essential elements of one’s positional duties.

As such, the identification and description of a medical condition fails to comply with the adequacy standards in proving eligibility for Federal Disability Retirement benefits.  One must establish, through the conduit of a medical professional, the “nexus” or “connection” between one’s identified medical condition and the inability to perform one or more of the essential elements of one’s job.

The weight of the proof is upon the Federal or Postal applicant.

The foundation of such evidence begins with the identified medical condition, but in and of itself, it is a non-nexus — until it is squarely placed in the context of one’s official position and the duties required by one’s duties.  Thus, the non-nexus become the nexus-point when combined with the identification and description of one’s positional duties.

It is this realization of the step-by-step sequence of proof which constitutes adequacy and sufficiency of evidence, and one of which the Federal or Postal applicant for OPM Disability Retirement benefits must be aware.

Sincerely,

Robert R. McGill, Esquire

Diagnosed medical conditions v. symptoms

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the medical reports and treatment notes, office notes, etc., will often bifurcate and conceptually distinguish between a “diagnosis” of a medical condition, and the description of “symptoms” which the patient experiences.

Thus, as a simplified example, on a physical level, one might have the diagnosis of “Shoulder Impingement Syndrome” or “Rotator Cuff Tendonitis” in a specific category in a medical report under “Diagnosis”, but in a narrative paragraph discussing the history of the symptoms manifested by the individual, there may be a reference to “chronic pain”, or “radiating pain”.  Similarly, in psychiatric cases, one might be diagnosed with “Major Depressive Disorder” or “Generalized Anxiety Disorder“, without being officially diagnosed with “Panic Disorder” or “Agoraphobia”, but in a discussion concerning the Federal Employee’s symptomatologies, there may be a reference to having “panic attacks” or being fearful of leaving the house or going out into the public.

The conceptual bifurcation between “diagnosis” and “symptoms”, however, may (and perhaps should) be carefully brought together in completing the Applicant’s Statement of Disability.  Thus, while “pain”, “chronic pain”, “radiating pain”, etc., may not officially qualify as the officially diagnosed medical condition in a medical report, in preparing and formulating an Application for Federal Disability Retirement benefits, it is important to interweave such symptoms if they are a prominent part of one’s medical conditions.  Similarly, “Panic Attacks”, even if merely described as a symptom, may be an important part — if not the “essence” of a psychiatric condition — of one’s medical condition, and it is important to include it as part of the diagnosis.  For, when an approval is granted from the Office of Personnel Management, the identified medical diagnosis should, if at all possible, include the most debilitating of medical conditions.

That which is conceptually distinguished on a medical report need not necessarily dictate what is described and delineated on one’s Application for Disability Retirement.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Distinguishing between Diagnoses and Symptomatologies

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, whether under FERS (Federal Employee’s Retirement System) or CSRS (Civil Service Retirement System), in preparing and formulating the Applicant’s Statement of Disability on Standard Form 3112A, it is important to distinguish between the medical conditions which are diagnosed, from the symptoms which are experienced by the Federal or Postal employee.  The focus is often upon the latter (the symptoms) as opposed to the former (the officially diagnosed medical conditions), as it should be because of the nature of the requirements in proving a Federal Disability Retirement case with the Office of Personnel Management.

By that is meant the following: Because one must prove by a preponderance of the evidence that one is eligible and entitled to Federal Disability Retirement benefits from OPM, by exhibiting a nexus between one’s medical conditions and one’s medical inability to perform one or more of the essential elements of one’s job, the descriptive analysis of such bridging between one’s medical condition and the impact upon one’s ability/inability to perform the essential elements of one’s particular job, is quite naturally focused upon the symptomatologies which one experiences.

The blurring of the lines between the “official” medical condition as itemized in a list of diagnoses, as opposed to the descriptive delineation of the exhibited symptoms, or the symptoms which are subjectively experienced and (often) correlated by objective radiological reports, is a natural occurrence. Often, the two are (and should be) deliberately intermingled in the narrative description of the Applicant’s Statement of Disability. However, one should always write the narrative portion of the SF 3112A with the view towards the future potential issues which may arise: that of being “disabled” for a specifically-identified medical condition.

Sometimes the OPM Representative will specifically identify a medical condition; sometimes, no such identification will occur. Then, there are times when the lines between “diagnosis” and “symptoms” naturally crosses — as in, “Chronic Pain Syndrome” as distinguished from “chronic pain”. Blurring the lines in a discussion is expected and should be applied in formulating one’s Applicant’s Statement of Disability; but such blurring should occur with deliberation and purpose, and not just because one does not recognize the distinction between the two.

As with everything in life, the consequences of doing something by accident are quite different from that which results from a purposive and deliberate action.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Flexibility of Language

Language is inherently a flexible tool; it is meant to communicate, and while precision in communication is the defining purpose in the use of the tool, often the essence of language must nevertheless be flexible enough to embrace other, correlative concepts. To limit the tool of language often will lead to undermining the very purpose of the use of such language.  

In filing for Federal Disability Retirement benefits under FERS or CSRS, the use of language in preparing, formulating and describing the interaction between the medical conditions and how it impacts one’s job duties, must allow for some level of flexibility.  For example, if certain chronic symptomatologies result in a mis-diagnosis of a medical condition, should a later (revised) diagnosis be allowed to be argued to the Office of Personnel Management after it has been filed?  

The answer to the question is contained in how the Applicant’s Statement of Disability on Standard Form 3112A is formulated.  If one merely lists the diagnosed medical conditions without describing the symptoms, then the language used has restricted the flexibility of post-filing inclusion.  On the other hand, if one combines the various medical diagnoses, but also includes a descriptive discussion of the symptoms, then the answer is likely, “yes”.  The use of language should be one of precision; how one utilizes the tools of language, however, should remain flexible.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Beyond the Diagnosis

The diagnosis of the medical condition in a Federal Disability Retirement case, either under FERS or CSRS, is merely the beginning point in preparing a case. As the Office of Personnel Management in Washington, D.C., is fond of repetitively pointing out, “The mere existence of a medical condition is not a basis for approval under Federal Disability Retirement laws.” While there may be some exceptions for certain severe medical conditions, the statement itself contains a truism which needs to be kept in mind throughout the process.  

Ultimately, in preparing a Federal Disability Retirement case, one must approach the entire process (a process, by the way, which is taking longer and longer to complete, as the backlog at the Office of Personnel Management is increasingly extending the wait-time) with a view towards bridging the two critical elements in any successful filing:  (A) the medical condition and (B) its impact upon one or more of the essential elements of one’s job.  

It is that “connective tissue” between the two which must be the focus, and that is why the symptoms which manifest themselves from the origin (the diagnosis) is what must be discussed.  For, ultimately, while the diagnosis of a medical condition provides the basis for which a medical specialist may begin treatment on a patient, it is the symptoms/symptomatologies which provide the answer to the question in all Federal Disability Retirement applications under FERS or CSRS:  In what way does one’s medical condition prevent a Federal or Postal Employee from performing the essential elements of one’s job?

That is the critical question which must be answered, in order to have a chance at having one’s Federal Disability Retirement application approved by the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Symptoms & Diagnoses

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is not that a formal diagnosis is unimportant; rather, it is that the diagnosis itself is merely a starting point and does not reveal the story which must be told in order to be eligible for Federal Disability Retirement benefits under FERS or CSRS.  

From a medical viewpoint, for treatment purposes and from the perspective of the treating doctor, identifying the source of the pain, entertaining the various treatment options, considering which treatment modalities will be most effective, etc., all play into identifying the proper source of the symptoms.  Thus, from a treatment perspective, identifying the medical condition by ascribing the proper diagnosis is of paramount importance.  A doctor often cannot begin the proper course of treatment unless and until formal identification is established. To that extent, it is also the beginning point for the treating doctor, in that once a source of pain or origin of symptoms is diagnosed, then various treatment modalities can be considered.  

For purposes of becoming eligible for Federal Disability Retirement benefits under FERS or CSRS, it is also merely a starting point.  As the Office of Personnel Management often likes to point out, “The mere existence of a medical condition does not mean that a person is disabled from performing one or more of the essential elements of one’s job.”  While quoting OPM as the source of legal authority is normally unwise, nevertheless one must grant that this particular statement is true within its limited context, and must be kept in mind when preparing a Federal Disability Retirement application under FERS or CSRS.

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

FERS & CSRS Disability Retirement: The Family Doctor and the Surgeon

I am often asked whether or not a medical report from the “specialist” will have a greater impact than a family doctor.  Implied in such a question, of course, is a perspective which tends to see the family doctor as somehow “less qualified”, sort of like comparing the technical deficiencies of a “country doctor” as opposed to a “real doctor” — one who works in an emergency room in a large metropolitan hospital.  Perspectives and prejudices have a way of defining judgments, and assumptions, presumptions and long-held beliefs, whether valid or not, often rule our lives. 

How can I answer such questions?  In the course of a Hearing before an Administrative Judge at the Merit Systems Protection Board, I have had family doctors testify who were unbeatable, and certainly overwhelming in his or her expertise and medical knowledge.  The years of experience in having to deal with thousands of patients, and confronting and treating medical conditions of every imaginable sort — and making decisions (including referring patients to “specialists” for concurring or confirming diagnoses and opinions) involving the “whole” patient’s medical condition and treatment — came through with such persuasive force and overwhelming confidence, that it was indeed the “family doctor” or the “country doctor” who ruled the day. 

Similarly, I have had the “specialist” testify in cases, who barely were able to coherently describe the connection between the medical condition and the essential elements of the job.  And, of course, sometimes the opposite is true — good surgeon, mediocre family doctor; mediocre specialist, great country doctor.  As in all things, in Federal Disability Retirement applications under FERS or CSRS, it is not so much that the credentials matter, as the character, experience, and “heart” of the doctor who treats the patient.

Sincerely,

Robert R. McGill, Esquire