OPM Disability Retirement: Situational Disability II

To reiterate: Situational disability can be an issue which can defeat a disability retirement application, precisely because OPM (and if it gets to the MSPB level, the Administrative Judge) can conclude that the Psychiatric disability in question originates and results in response to the hostile workplace environment.

These three concepts are important to understand — originate, result in, and result “in response to”. A psychiatric condition can originate from a hostile work environment, but as long as the medical condition then pervades beyond the work environment and impacts a person’s life through and through, then that alone does not constitute situational disability, because while it may have originated from A, it is not limited to A.

The second concept — results in — must be seen in the context of the condition of the psychiatric disability. Thus, does the (for example) Major Depression or anxiety result solely from the work environment, or does one experience the symptoms while at home, even while away from the work environment?

And thirdly, does the individual experience the symptoms of the psychiatric condition “in response to” his or her exposure to the work environment, or are the symptoms all-pervasive: i.e., throughout all aspects of the person’s life?

To differentiate these three concepts is important in avoiding the pitfalls of situational disability, and in helping to prepare a Psychiatrist in either preparing a medical narrative report, or in his or her testimony before an Administrative Judge at the Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: The Danger of Situational Disability

The danger of falling into the trap of situational disability, which is one of a number of reasons for denying a disability retirement application, can come about quite regularly. Especially because, in the face of contending with a medical disability that is serious enough to warrant changing one’s career, of filing for medical disability retirement — there is often the Agency’s contentious response, of needing to have the continuity of the work accomplished, of being insensitive and lacking compassion for the applicant; in such a context, the applicant views the Agency’s response as hostile.

The employee/applicant, then, in filing for disability retirement, will often make the mistake of focusing upon the hostile work environment, or the lack of compassion and empathy on the part of the Agency — and this will often warrant a denial of disability retirement based upon the medical condition of the applicant as being “situational disability” — meaning that the medical condition of the employee/applicant is limited to the work situation of that particular office or agency. This is a completely wrong-headed approach for the applicant.

That is why, when I represent my clients, I am singularly focused upon the 2 or 3 main issues that form the essence of a disability retirement case, and insist upon focusing my clients upon those very same issues, while setting aside those tangential issues which can ultimately defeat a disability retirement application. Understand that these peripheral, tangential issues may well be “important” to my client — but I would not be doing my job in representing my clients if I allowed the peripheral issues to become “front and center” — for that would be a disaster for my clients. I represent people to obtain disability retirement benefits. That is my job. That is my focus. If I allow my focus to waiver, then I am not representing my clients properly.

Sincerely,

Robert R. McGill, Esquire

Supervisor's Statements for FERS & CSRS Disability Retirement

I am often asked my opinion on the impact a Supervisor’s Statement has upon a disability retirement application. Unfortunately, not all supervisor’s are created equal — and, while in theory, a supervisor should be completely professional in filling out the SF 3112B — meaning that the supervisor should answer the questions in an ‘objective’ manner in filling out the form; should be attuned to the medical conditions of the employee; and should be able to set aside any personal or vindictive animosity towards the employee; the truth of the matter is that the disability retirement applicant has absolutely no control over what the supervisor will say in the Supervisor’s Statement.

Wisdom informs us to never worry about those things which are outside of one’s control; and indeed, this is good advice. I always advise my client’s not to be concerned with the Supervisor’s Statement; remember, this is a medical disability retirement application, not a “Supervisor’s application”, and while the Office of Personnel Management will take into consideration what a Supervisor has written, the way to ensure that it is given little or no weight, is by focusing upon having your treating doctor write an excellent, irrefutable and unequivocal medical narrative. Disability retirement is about a medical issue, not a personality issue. If you present valid and strong medical documentation in support of your case, it makes all other documentation a mere irrelevancy.

Sincerely,

Robert R. McGill, Attorney