OPM Disability Retirement: The Reality of Accommodations

Medical conditions test the value of a worker; for, while people may engage in theoretical discussions of “cost-benefits analysis“, where the cost of X is compared and contrasted to the benefit of Y, such that the hypothetical analysis results in a business decision based upon pure economic need — the reality of such an approach rarely gets a true test beyond such dinner table discussions.  But when a Federal or Postal Worker begins to suffer from a medical condition, such that the medical condition visibly impacts one or more of the essential elements of one’s job, then the economic paradigm of a cost-benefits analysis is applied, whether overtly or in a more subtle, inconspicuous manner.

The agency may recognize the need to allow for temporary suspension of certain positional duties — travel may be taken up by some other employee; heavy lifting may need an additional helper; telecommuting may be a viable option.  The cost of such temporary measures is felt in the work left undone; the benefit is accrued by the experience, wisdom, and knowledge of the disabled retained worker.  In rarer occasions, a formal request for an accommodation may be submitted by the Federal or Postal Worker, and an administrative process of attempting to provide a legally viable accommodation may ensue; but that is a rare process, indeed.

The reality of accommodations in the Federal sector is one of practical need versus the trouble such attempts bring; for the Federal or Postal Worker, whether under FERS or CSRS, the true option left is to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  Such an option results from an agency being tested — and loyalties revealed.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Medical Retirement: Reassignment Considerations

In considering filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the issue of possible reassignment will arise — normally as a rather secondary and unimportant facet of the process — as an obligatory agency action.

SF 3112D is a form which the agency must complete.  The form essentially affirms that the agency attempted either of 2 things:  tried to “accommodate” the Federal or Postal employee, or tried to find a suitable “reassignment” to another existing, available position.

As to the latter, case-law has made it clear that in order for an offer of reassignment to preclude the Federal or Postal employee from continuing with one’s Federal Disability Retirement application, such light or limited duty offer must be at the same pay or grade of one’s current position (there are some complicating details connected with the enunciated standard, but for present purposes, this general rule will suffice).

Sometimes, the Agency or the U.S. Postal Service will find a lower-paying position, and offer it, and the employee will gladly accept it because it allows for continued employment.  But one must understand that, if down the road, the Federal or Postal employee finds that he or she is unable to perform one or more of the essential elements of that “lower” position, then it is from that “lower” (and often of lesser responsibilities) position that one will be filing for Federal Disability Retirement.

Just some thoughts to ponder; for, as a general rule, the greater the responsibilities of a position, the lesser the standard of meeting the threshold for a Federal Disability Retirement; and, conversely, the lesser the responsibilities of a position, the higher requirement to prove one’s case in a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Accommodation Revisited

There is nothing inherently wrong with an Agency, or the U.S. Postal Service, from providing light duty, limited duty, or “special assignments” to an injured individual, or a Federal or Postal employee who suffers from a medical condition which prevents or otherwise impedes him or her from performing all of the essential elements of one’s job.  The difficult conceptual framework that many Federal and Postal employees are unable to grasp, is that while the Federal Agency can certainly allow for such light duty assignments, such light duty assignments do not preclude one from continuing to remain eligible for Federal Disability Retirement benefits.  

The reason for the continuing eligibility is that there is a legal distinction between “accommodation” under the law, and “light duty” work.  An accommodation, in order to be a technically legal application of the term, must be some act or provision which the Agency makes, such that the individual is capable of performing all of the essential elements of one’s job.  Thus, being allowed to take a greater amount of sick leave, or take LWOP, or be allowed to perform duties which are peripheral to one’s position description — while all well and good — do not allow the Federal or Postal employee to continue to perform the essential elements of the official position description.  As such, light duty allowances do not constitute an accommodation under the law, and while it continues to allow the Federal or Postal employee to remain employed, it also does not preclude him or her from being eligible for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Agency Accommodation Reiterated

In most cases, the agency is unable to accommodate the individual.  By “accommodation” is often meant lessening the workload, or temporarily allowing for the medical conditions resulting in certain limitations and restrictions to be taken into account — for purposes of travel, for sustained periods of sitting, for physical aspects of the job, etc.  But such temporary light-duty allowances do not constitute a legally viable “accommodation”.  But one must always remember that, while such measures by the Agency do not constitute an accommodation under the law, and as such do not preclude a Federal or Postal employee from filing for and being eligible for Federal Disability Retirement benefits, nevertheless, there is nothing wrong with the Agency providing for such temporary light duty modifications of the job.  In fact, it reflects well upon the agency that it would go to such extents, even if for only a temporary period of time, in hopes that the Federal or Postal employee will be able to sufficiently recover to return to “full duty”.  

Remember that there are at least two senses of the term “accommodation” — in the layman’s sense of some temporary measures to allow the employee to continue to work; then, in the legal sense of a viable “accommodation” under the law.  Don’t confuse one with the other.

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

Federal and Postal Disability Retirement: Coherence

A Federal Disability Retirement packet must be coherent.  This may appear to be “self-evident”, but there have been many disability retirement packets which, upon a denial and a review at the Second, Reconsideration Phase of the process, lack the coherent coordination which results in a credible disability retirement packet.  Coherence results from the simple review of the entirety of the information submitted to the Office of Personnel Management:  The applicant’s personal statement; the medical records and reports; the position description; any additional statements or attachments.

Now, there are certain elements of a Federal Disability Retirement application which cannot be controlled — such as the Supervisor’s Statement (SF 3112B) and the Agency Certification of Reassignment and Accommodation Efforts (SF 3112D).  However, while one may not be able to “control” the coherence of those elements which are the purview of the Agency, there are certain steps which can be taken to preempt such uncontrollable injections from the Agency.

Regardless, it is normally not the SF 3112B or 3112D which makes for the incoherence of a Federal Disability Retirement submission; more often than not, the culprit is the Applicant him/herself.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Preempting OPM’s Arguments

It is important at all stages of a Federal Disability Retirement application for FERS & CSRS employees to predict, anticipate, and preempt the arguments which the Office of Personnel Management may make, will make, and can be expected to make.  Obviously, the three main areas of such concern are:  Sufficiency of medical documentation; Agency efforts for accommodation and reassignment; the impact and interconnection between one’s medical condition(s) and the positional duties of one’s job. 

However, there are multiple other areas, and it is the job of an applicant filing for Federal Disability Retirement benefits, or his/her attorney, to anticipate the areas of OPM’s concerns, and to address them both factually and legally — the latter, by pointing out statutory authorities and case-law holdings directly or implicitly touching upon those very areas of concern.  Further, one should never be fooled if, in an initial denial of an OPM Disability Retirement application, the substance of a denial is fairly short or if it is detailed and lengthy; the content of a denial letter should not determine the extent of a response by an applicant at the Reconsideration Stage.  Instead, whether short, of “middle length”, or extremely detailed, a response should anticipate all areas of concern, and the applicant who is attempting to secure an approval for his or her Federal Disability Retirement benefits should always preempt any potential areas for a further denial.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Don't Confuse the Standards

People who call me for advice, who are potential candidates as clients for Federal Disability Retirement benefits under FERS or CSRS, often interchangeably use terms which apply to different standards:  standards of total disability as opposed to a medical disability which impacts one’s ability to perform one or more of the essential elements of one’s job; whether a medical condition is an “accepted” disability (a concept which is often used in Social Security disability cases); whether a person can file for Federal Disability Retirement benefits even though he “hasn’t reached MMI” (“Maximum Medical Improvement”) — which is language encompassing a concept familiar to OWCP/DOL (Worker’s Comp) cases; or, on a different level, the statement that an agency has been “accommodating” an employee by allowing him/her to take sick leave, Leave Without Pay, or to “not have to travel as much” — mistakenly or loosely using the term “accommodation”, when in fact such agency actions do not constitute a legally viable accommodation, as that term is used in Federal Disability Retirement laws. 

It is the job of the attorney to correct, clarify, and otherwise explain the proper terminology and precise application of concepts in Federal Disability Retirement cases.  It is not surprising that people who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS use the various terms in error, or mix terms unknowingly — for there is alot of misinformation “out there”; it is the job of an Attorney who specializes in Federal Disability Retirement law to clarify such confusions.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Administrative "Process"

I have previously written about how a Federal Disability Retirement application should be prepared:  that it should be looked upon as an administrative “process”, and as such, it is not like taking a test for a driver’s license, or filing an application to obtain a permit — both of which are similarly “administrative” issues.  The reason why filing for Federal Disability Retirement benefits under FERS or CSRS is different, and is a “process” as opposed to merely filing an “application” for something which will be essentially rubberstamped, is that it requires proof which must meet a certain statutory legal standard — it requires that one prove, by a preponderance of the evidence, that one is entitled to receive disability retirement benefits.  

Now, wherever “proof” of eligibility is required, there can be a disagreement as to whether or not such proof met the statutory eligibility requirements.  Other applications, such as filing for a Social Security Card, may also have certain statutory requirements, but normally such administrative applications are fairly “cut and dry” — such as, certain documents will be accepted to prove X, or certain forms may need to be filled out to obtain Y.  But where a legal standard of proof must be met, differences between the Applicant and the Agency may erupt. 

OPM may state, and argue, that the medical documentation, the Supervisor’s Statement, the Agency Certification of Accommodation efforts, the comparison between the applicant’s Statement of Disability and the doctor’s statements and notes — did not rise to the level of meeting the legal standard of “preponderance of the evidence”.  This is where many people get themselves into trouble — by thinking that it is merely an “application” to file in order to obtain an administrative benefit.  Then, when it gets denied at the first level, applicants become devastated, thinking that it is the end of the world.  From the outset, it should be looked at as a “process” — one which may take going to the Merit Systems Protection Board, or even further, to the Full Board Review, and then, if necessary, to the Federal Circuit Court of Appeals.

Sincerely,

Robert R. McGill, Esquire