OPM Disability Retirement: Further Reflections on Accommodations

Because the term “accommodations” is rarely understood in its technical and legal sense, there is often the danger of a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS to “shoot one’s self in the foot” in the very use of the term — or in checking certain boxes on the application form (specifically, SF 3112A, Applicant’s Statement of Disability), and further, there is the added danger that the Agency, in completing a Supervisor’s Statement or the SF 3112D, will mis-apply and mis-state the import, significance or relevance of any actions taken in attempting to assist the Federal or Postal employee.

Indeed, in a Supervisor’s Statement (SF 3112B) there are many instances in which the Supervisor completing the form will contradict him/herself when it comes to the issue of accommodations.  Moreover, the applicant him/herself will often mis-state the issue of accommodations on SF 3112A.

The term “accommodations” has a very narrow definition, and must be used and applied to the advantage of the Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS.  Additionally, it is not out of the realm of possibilities that the Office of Personnel Management also (whether deliberately or by chance) uses the very misuse (by the Applicant) of the term to its advantage.  In all cases, the term “accommodations” must be used and referred to carefully, technically, and with full insight of all of its consequences in the use or misuse of the word.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Question of Accommodations

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, certain essential issues must be addressed, including:  the medical condition itself (obviously); the impact of the medical condition upon one’s ability/inability to perform the type of positional duties required in one’s job (also quite obvious); the length of the medical condition itself (it must last for a minimum of 12 months); as well as multiple issues surrounding the question of whether the Agency can “accommodate” a medical condition.

The question of accommodations has been widely discussed by the undersigned author, especially in light of the case of Bracey v. OPM and multiple subsequent cases.  Nevertheless, despite much discussion on the subject, and attempted clarification between the legal, technical usage of the term “accommodation” and the more loosely understood concept of an agency “accommodating” an individual, there is often a surrounding confusion about the conceptual distinctions being made. This is because, perhaps inherently, the technical term of art is not self-evident.

Take, for instance, Question 7a on SF 3112A, where the form asks the question, What accommodations have you requested from your agency?  This question implies that you may have done something “wrong” if you have not specifically requested a certain type of accommodation — meaning, that you must have the knowledge to request of an agency the particular accommodating act of the agency which would allow you to perform all of the essential elements of one’s job.

Yet, this implicitly contradicts the very existence of SF 3112D, Agency Certification of Reassignment and Accommodation Efforts — which clearly places the burden of any attempted accommodation upon the agency, where — upon receipt of the disability retirement packet, or the medical evidence at any time — the agency must see if there are any jobs available or any method of accommodating the Federal or Postal employee such that he or she can perform the essential elementsof the job.

Thus, while the question (7a of SF 3112A) may have an underlying tone of a threat (as in, what have you done wrong?), it is in fact a fairly irrelevant question, and should be addressed as such.  Remember, there is a distinction to be made between the question, the answer given, and the relevance of either.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Making it Easy for OPM

Whether inadvertently or not, an Applicant who has formulated, prepared and filed a Federal Disability Retirement application either under FERS or CSRS will make it easy for the Office of Personnel Management to deny a case.  

Thus, for instance, on the Applicant’s Statement of Disability, where the applicant is asked concerning the status one is in at the agency, if the applicant agrees with the Agency or the Supervisor that the Agency has “accommodated” the individual in his or her employment, then the Office of Personnel Management will often focus selectively upon that answer and argue that, inasmuch as X has stated that the employee has been accommodated, and Y (the employee — you) has agreed with the agency, therefore Y is not eligible or entitled to Federal Disability Retirement benefits because Y has been accommodated.  

But, as it has been previously stated on multiple occasions, the term “accommodation” is a technical term of art, and if one fails to appreciate the nuances of the term, the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS can fall into the trap of using the term in a non-technical, general way, and thereby defeat one’s own application for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Continuing Confusions

In Federal Disability Retirement law under FERS & CSRS, the issue concerning accommodations can continue to remain a rather confusing area of law.  This is especially true when an Agency allows for an individual, either in the Postal Service (which is becoming rarer because of the prevailing winds of the National Reassessment Program) or in the non-Postal, Federal sector, to remain in a position and perform much of the lighter duties of the job, and to allow for one or more of the essential duties of the job to be delegated to others, or not be performed at all.  Now, such a situation can continue on for years, and there is nothing inherently wrong with such an arrangement (aside from the fact that the other Federal workers to whom such work is “delegated” may grumble and complain about fairness or, more likely, that some of the work is never completed), especially if the work which the injured individual performs is valuable to the Agency — even in such a “light duty” status.  

What must be kept in mind, however, regarding the relevance and significance to filing a Federal Disability Retirement application under FERS or CSRS, is that throughout the entire time-period of being on such light duty, the Federal or Postal worker could have, at any time, filed for Federal Disability Retirement benefits and should have been approved.  This is because such temporary “light duty” arrangements never constituted an “accommodation” under the law, and the Federal or Postal worker was eligible for Federal Disability Retirement benefits regardless of remaining in the “light duty” job.

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 and Postal Disability Retirement: OPM over OWCP

I still get many emails and phone calls about the onerous, “over-the-top” behavior, and the bullying tactics of OWCP/DOL temporary total disability payments & requirements — everything from constant, incessant and unending, harassing letters, to requiring further evaluations from second and third opinion doctors (or so-called doctors), to constantly requiring one’s treating doctor to justify the continuing disability status, thereby endangering the continuation of the doctor-patient relationship.  And who can criticize or blame the doctor for wanting to drop a patient for the amount of hours he/she has to put into, for “non-medical” issues, and for the time expended which the doctor will never be paid for? 

Yes, Worker’s Comp pays more.  Yes, it is non-taxable.  Yes, there are monetary reasons for staying on OWCP.  But the truth is, money doesn’t buy peace of mind or a life of lesser stress.  OWCP is meant to be a temporary means of providing income — it is not designed for the long term, and indeed, the Office of Worker’s Compensation makes that abundantly clear by their actions.  OPM Disability retirement under FERS or CSRS pays much less, but it allows for independence and a semblence of freedom, not even to mention a life of some dignity.

Sincerely,

Robert R. McGill, Esquire