Federal Worker Disability Retirement: The Extras, on Either Side

In performing a job, there is the basic parameter of the official “position description” for the Federal and Postal employee, which provides the foundational overview, the physical and cognitive demands of the job, and the necessary credentials and qualifications required before acceptance.

The reality of the actual workplace may somewhat modify the official establishment of one’s position, and that is to be expected:  generalities are often tailored to meet the needs of individual circumstances and situations presented by the local agency.  Beyond that, however, there is often the question of what constitutes “too much” on the one hand, and on the other side of the equation, what reduced modification of a position constitutes an accommodation under the law.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, such a duality of questions will often be encountered.  Modification by a Supervisor of a position’s duties may well allow for the Federal or Postal employee to continue to remain in a position, without compromising one’s health.  Yet, does such unofficial modification constitute a viable accommodation such that it would preclude one from being eligible for Federal Disability Retirement?  Normally, not.

On the other side of the equation, does adding responsibilities to one’s official position description result in such additional duties becoming part of the essential elements of one’s job, such that the fact that one’s medical conditions may prevent one from performing such added responsibilities impact the eligibility for Federal Disability Retirement?  Again, normally not. But such issues must be approached with intelligence and armed with the tools of knowledge of the applicable laws.

Whatever the answers, the “extras” on either side of the equation must be approached with caution, lest one finds that the earth is indeed flat, and one can fall over the edge into an abyss of administrative nightmares in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Technical Application of Terms

Wittgenstein’s contribution to Western Philosophy was twofold:  On the one hand, his insight into the role of language and how much (if not all, according to him) of philosophy’s substantive problems and complexities could be unraveled through the analytical dismantling of linguistic confusions, and secondly, the idea that philosophy as an academic discipline should not be given greater stature than any other — in other words, he believed that philosophy was a waning and anachronistic field which would eventually wither on the vines of history, and properly so.

While the undersigned disagrees with the latter assessment, it is the former contribution concerning “language games” and their import to society, daily living, and even to the technical world of legal jargon, which is of interest and relevance.  Lawyers necessarily have a “language game” of their own.  Within the peculiar universe of legal terms, the technical application of such “legalese” has direct and dire consequences if not understood properly and applied narrowly.

In the world of Federal Disability Retirement law, the term “accommodations” is often and profusely applied by agencies and Human Resources Personnel, but more often than not, in a loose and inappropriate manner.  Agencies bandy about the term, to wit:  “Mr. X. was accommodated by allowing for temporary light duty“; “We provided him with an accommodation by letting him take liberal sick leave and LWOP”; “Ms. Y was accommodated with instructions not to lift over her medical restrictions”; and other such implied applications of the term.

Which of the previously-cited statements constitute a technically correct use of the term “accommodation” within the context of Federal Disability Retirement?

Answer:  None of them.

Language games have inherently peculiar traits and rules of application; within the parameters of Federal Disability Retirement, too often the rules of usage are not complied with.  The consequences of non-compliance, unfortunately, is that Federal and Postal employees actually believe that they are being “accommodated”, when in fact they are not.

Further, believing that one is being accommodated by an agency may lead to the mistaken belief that one is ineligible for Federal Disability Retirement, when in fact one has always been eligible precisely because the agency cannot or has failed to provide a legally viable accommodation.  Look into the proper use of terms, and the technically correct application of terms.

In the end, Wittgenstein was right:  Language games reveal more about the competence of those who play them, than about the lack of precision exhibited by human behavior.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Non-issue of Accommodations

As has been previously written about on multiple occasions, the Federal or Postal employee who is contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, will encounter and confront the issue of “accommodations” in the course of preparing, formulating and filing for Federal Disability Retirement benefits.

For most Federal and Postal employees, the issue itself is a “non-issue”, in that the agency will neither be able to either reassign the employee to another position at the same pay or grade, nor provide for an accommodation which is legally sufficient such that the Federal or Postal employee will be able to continue to perform all of the essential elements of one’s positional job requirements.

Further, most Federal or Postal workers who file for Federal Disability Retirement benefits from OPM have what the undersigned attorney terms as a “non-accommodatable” medical condition — i.e., the particular type of medical condition is simply inconsistent with the individual type of job which the Federal or Postal employee is slotted in.  Thus, it is really a non-issue. This non-issue is, for the most part, taken care of and disposed of by the completion of a single form — SF 3112D, which is completed by the Human Resources Department of the agency, or at the H.R. Shared Services office in Greensboro, N.C. for the Postal employee.

While an important and complex issue, the case-law has effectively de-fanged any concerns about accommodations, such that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits need not be overly concerned with such a non-issue.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Trickiness Concerning Accommodations

The issue of “Accommodations” can be a rather tricky one.  Over the years, the term has expanded and been refined by various legal precedents, and the technical, term of art now carries some meanings which, if not understood properly, can entrap Federal and Postal employees into making wrong decisions while in the process of preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS.  

In simplistic terms, to be properly accommodated by an Agency, the Federal or Postal worker must be provided with an accommodating “X”, such that he or she can continue to perform all of the essential elements of one’s job.  Further, temporarily modifying or suspending certain elements of a position description, for purposes of allowing for the Federal or Postal Worker to continue working, does not constitute an accommodation under the law.  

This makes sense, if one stops to think about it, and for the following reason:  such an arbitrary modification of work duties by a Supervisor or Manager, can just as arbitrarily be taken away.  As such, temporary “accommodating” actions — while commendable and allowable in order to let the Federal or Postal worker continue to work — does not preclude the Federal or Postal worker from proceeding with his or her Federal Disability Retirement application.  

Additionally, remember that an Agency’s effort for “Reassignment” is part of the Standard Form 3112D (Thus, the Form is entitled, “Agency Certification of Reassignment and Accommodation Efforts”), and comprises part of the Agency’s attempt to “accommodate” the Federal or Postal employee.  The issue of “reassignment” is a separate, but related one, and that issue is often influenced by the dependent clause which should not be overlooked in a Federal Disability Retirement application:  that a person can no longer perform one or more of the essential elements of a particular job, or any similar job. 

By having a working knowledge of the issues surrounding Federal Disability Retirement laws, even in a rudimentary state of knowledge, one acquires a better chance of success.  Approval is a long and arduous process. Knowing the lawand its impact is part of that process.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Logic versus Pragmatic Social Policy

In a Federal Circuit Court case a few years ago, a dissenting opinion concerning Federal Disability Retirement benefits argued that it was “contrary to logic” to allow for Federal or Postal employees to become eligible for Federal Disability Retirement under FERS or CSRS if they have been accorded light duty and allowed to remain in his or her official position while not performing many of the essential elements of the job.  

The “logic” which is argued here is based upon the paradigm that, so long as one is allowed to continue to work and receive a paycheck, one should not be considered “disabled”.  But such an argument refuses to acknowledge both the law (under the Bracey v. OPM decision), as well as good economic and social policy.  

The fact is that under Federal Disability Retirement rules, laws and case-laws, what the Administrative Judges and Courts have acknowledged is that a Federal or Postal worker should not be subjected to the arbitrary whims and actions of a single supervisor or Agency; instead, there should be a criteria upon which a Federal or Postal worker should be able to rely upon.  That objective criteria is in essence as follows:   A Federal or Postal worker should have to perform all of the essential elements of one’s job.  If not, that Federal or Postal worker is deemed “disabled” under the laws governing Federal Disability Retirement benefits.  

While an Agency may allow for light duty, or temporary assignments, such light duty or temporary assignments should not preclude the obvious fact that the Federal or Postal worker continues to remain disabled.  This way, there is an objective criteria of the law to be followed, which cannot be altered based upon the arbitrary whim of a Supervisor or an Agency, who may come along a year later and disallow all light duties or temporary assignments.  Thus, in this case, the social and economic policy as envisioned under the Federal Disability Retirement rules, regulations and laws, are not only pragmatic, but logical.

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

OPM Disability Retirement: Last Minute Filing

Too often, I receive calls from Federal and Postal employees (or rather, formerly thereof) who have waited until the very last conceivable moment to file for Federal Disability Retirement benefits under FERS & CSRS.  Yes, I realize that time erodes away slowly, almost imperceptibly, and all of a sudden it is an emergency.  Can a case be put together within a couple of weeks?  Yes.  Is it best to wait until the very last minute?  No.  Remember that all Federal and Postal employees only have up until one (1) year from being separated from Federal Service, to file for Federal Disability Retirement benefits.  But life happens; time slips away; what was once 6 months is now only 30 days, or perhaps 2 weeks. 

I may have told this story before, but here goes:  On the desk of a civil clerk in a local County Courthouse, is a sign which reads:  “The fact that you procrastinated does not make your filing my emergency”.  That is essentially true; however, whenever I get calls by panicked individuals who have failed to use the 1-year Statute of Limitations wisely, in most cases, I have been able to properly put the case together, and file it on an emergency basis.  In such circumstances, adaptation is the key:  some things need to be filed later, but the essential forms to meet the deadline must be immediately filed.  There are very few true emergencies in life, and most cases can meet the deadline — no matter how much the Federal or Postal Employee has procrastinated.  However, it is better not to wait until tomorrow, that which can be done today. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agencies Rarely Accommodate

For whatever reasons, Federal Agencies rarely accommodate an individual who has a medical condition which impacts one or more of the essential elements of one’s job.  Whether the Supervisor is too busy to craft a viable accommodation plan, or whether the Agency is simply following the standard thoughtless response of the Federal Sector in general, the truth is that Agencies rarely, if ever, provide a truly viable, legally defined accommodation.  I receive calls every day from Federal and Postal employees who will state that the Agency is currently “accommodating” him/her; upon closer questioning, however, it always turns out that the term “accommodation” is being used in a non-artful, general sense, as in:  The Agency is letting me take LWOP; the agency is letting me take sick leave; the agency is letting me not travel too much; the agency is letting me…  What the agency is doing, whatever it is, is to temporarily keep you around until they decide your services are no longer needed.  That may be just around the corner, or you may be forgotten for some considerable amount of time.  Regardless, don’t be fooled; agencies rarely accommodate, and it is most likely the case that whatever “accommodations” the Federal or Postal employee believes that the Agency is providing, it does not fall under the legal definition of the term.

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