OPM Form SF 3112C and the Sufficiency of the Physician’s Statement

Confusing necessity and sufficiency is always a precarious matter. That which is necessary may not be sufficient for a given purpose, and failure in understanding such a fundamental distinction can be fatal to a Federal Disability Retirement claim.

SF 3112C requires that a physician complete and provide essential medical information in the pursuance of a Federal Disability Retirement application. The form itself — SF 3112C — is the vehicle by which the medical documentation is obtained. It is “necessary” in the sense that SF 3112C delineates a guideline of the type of information which is needed in order to become eligible for Federal Disability Retirement benefits.

The form itself — SF 3112C — however, is to a great extent irrelevant (although, the U.S. Office of Personnel Management has recently required that a signed SF 3112C be included in the final Federal Disability Retirement packet, despite SF 3112E clearly stating that an “equivalency” of the form would satisfy the lack thereof, as in the attachment of the medical documentation itself), and it is instead the medical documentation through which SF 3112C is obtained, which is what is important.

Regardless, while the OPM SF 3112C constitutes the vehicle, is necessary, but is ultimately irrelevant in and of itself, it is a necessary form to the extent that it mandates the delineation of what information is required for eligibility and entitlement to Federal Disability Retirement benefits.

Will following the guidelines in accordance with what SF 3112C states, result in a successful OPM Disability claim? That is the question of “sufficiency”, as opposed to “necessity”.

Over the years, case-law and statutory interpretation and expansion of Federal Disability Retirement laws have greatly altered the landscape of a Federal Disability Retirement claim. SF 3112C is the vehicle of necessity, although the form itself is an unnecessary one. The greater question is whether it is sufficient to meet the legal weight of preponderance of the evidence, and that question must ultimately be answered by questioning the efficacy of the form itself.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: A Dedicated Pool of Workers

Federal and Postal workers are among the most dedicated of employees.  Yes, in this time of debt crisis and budget crunching, quickly decreasing pool of available Federal funds, the “talk around town” is about the bloated Federal and Postal bureaucracy.  But when it comes down to the individual worker, both Federal and Postal, the ones I have had the privilege to represent, are dedicated, hard-working, and to a person, never wanted to file for Federal Disability Retirement benefits under FERS or CSRS.  They simply had no choice.  As to whether or not the benefit is a “windfall” is, in my opinion, an unfounded charge and an insult.  Disability Retirement is merely one of the “benefits” in the total employment package when one signs on as a Federal or Postal employee.  Many private sector jobs offer disability insurance as part of an employment package, and Federal Disability Retirement benefits is simply a part of the employment package for Federal and Postal employees.  For all Federal and Postal employees — that dedicated pool of workers in the Federal sector — enjoy yourselves this 4th of July weekend.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Freedom of Retirement

In this tough economy, many people are rightly concerned that, upon an approval for Federal Disability Retirement under FERS or CSRS, that it will be difficult to “make up” the income with another job, even though a person under Federal Disability Retirement can earn up to 80% of what one’s former Federal or Postal position currently pays.  Yes, it can be tough; yes, the economy is a concern; but recessions ultimately come to an end, and while a job to make up the severe pay-cut may be long in coming, self-employment, to begin a start-up business, or to work part-time is often an excellent opportunity.  Unlike having the larger percentage of pay under OWCP-DOL benefits, a disability retirement annuity under FERS or CSRS is indeed a greater pay-cut.  But salary is not everything; the freedom of retirement, the ability to determine one’s future, and not be under the constant and close scrutiny of Worker’s Comp, accounts for much.  Where some see a severe pay-cut, others see as an opportunity to begin a second career.  And the price of freedom from those onerous fiefdoms of federal agencies is often better health, and greater enjoyment of one’s freedom and retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Paradigms for the Future

In attempting to decide to file for Federal Disability Retirement Benefits, it is often the case that Social Security disability benefits must be considered (not just “considered”, obviously, for FERS employees, because it is a requirement to file for it), and how seriously and vigorously; and further, whether to pursue, or to continue on, OWCP temporary total disability benefits.  These are “paradigms” that must be considered for the future.  By “paradigm”, I mean that they represent “models” of how a person wants his or her future to be based upon. 

For instance, let’s take the paradigm of Social Security disability benefits.  Because FERS employees who file for Federal Disability Retirement benefits must also file for Social Security disability benefits (to see if they qualify; and, if qualified, the offsetting features will apply), one must take into consideration whether or not a Federal or Postal employee will actually want Social Security disability benefits.  This question arises because Social Security has a “cap” in which a person who receives Social Security disability benefits can make ancillary earned income (roughly no more than $10,000 per year).  Because of this, one must think of the future paradigm of one’s life:  If a person on FERS disability retirement wants to go out and get a part-time job, or start on a path for another career, where he or she makes 15, 20, 25,000 per year or more (because remember, a person can make up to 80% of what a person’s former Federal or Postal job currently pays), then he or she may not want to get Social Security disability benefits.  Most people who are on Federal disability retirement are simply disabled from performing one or more of the essential elements of the particular job; they are not “totally disabled”, and therefore are able to go out and start a second career.  This is the “paradigm” for the future which must be considered, and such a model for the future must be carefully thought through.  Next:  the OWCP paradigm.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Social Security Disability

Under the rules concerning FERS disability retirement applications, one must file for Social Security Disability.  As most people already know, there is an interaction/offset between Social Security Disability benefits and FERS disability benefits, if both are approved (100% offset in the first year of annuity, 60% offset every year thereafter).  One would assume (dangerously, as it turns out), that if an application for Social Security disability is approved, that it would automatically render an approval under FERS disability retirement a “sure” thing.  Nothing could be further from the truth. 

The fact that Social Security has a higher standard of proof — where one must be considered “totally disable” as opposed to (under the legal standards for FERS) “disabled from performing one or more of the essential elements of one’s job”) — one would think that, legally and logically, if you have met the higher legal standard of proof, then the lesser standard would have been automatically met.  Unfortunately, because the two standards are applied in different, independent agencies, the fact that Social Security Disability benefits are awarded is not a guarantee that the FERS disability retirement application will automatically be granted.  However, there is clear case-law stating that OPM must consider the approval by SSD as one factor among many in the consideration of FERS disability retirement applications.  It is important to cite such cases in support of your application for FERS disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Law

I will be writing an article of greater length on this issue, but suffice it for now that when “the law” works, it works well. A major second case has been decided in favor of the Federal employee — first, it was Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), and now, Sylvia M. Reilly v. OPM, decided July 15, 2009. Vanieken-Ryals toppled the irrational imposition of a baseless standard by OPM — that there is a distinction to be made between “objective” as opposed to “subjective” evidence concerning medical evidence (example of the absurdity: How do you prove the existence of pain? While an MRI may show a physical condition, you cannot prove that such a physical condition equates to debilitating pain, leaving aside any quantification of pain. Similarly, how do you prove the existence of Major Depression? Anxiety? Panic attacks?).

Now, Reilly v. OPM has toppled another idol of a false standard imposed by OPM: that medical documentation which post-dates separation from Federal Service is near-irrelevant. This has never made sense, for at least 2 reasons: first, since a person is allowed to file for Federal Disability Retirement within 1 year of being separated from service, why would medical documentation dated after the separation be considered irrelevant? Second, medical conditions rarely appear suddenly. Most conditions are progressive and degenerative in nature, and indeed, that is what the Court in Reilly argues. Grant another win for the Federal employee, the law, and the process of law. It makes being a lawyer worthwhile when “the law” works.

Sincerely,

Robert R. McGill, Esquire