SF 3112B

OPM Standard Form 3112B: Supervisor’s Statement:

Were it that managerial approaches were diverse, and that such differences in stylistic methodologies constituted a perfect tailoring of individual personality to a particular job at hand; then, in that event, efficiency would predominate, scandals of long waiting times would disappear, and Federal and Post Office Workers would never be tested in their penultimate entanglement with the requisite virtue of patience.  But this is the real world. This is not some parallel universe in which dreams are dictated by wants and desires, and satisfaction of personal goals are attained at a whim.

In the harsh reality of technological onslaughts and daily toils of repetitive boredom, supervisors are placed in positions of trust, often misfits in an universe of onerous regulatory requirements and mandates.  As in all sectors of society, both public and private, there are good ones and bad, competent and their opposite; caring and callous; cold, indifferent, or warm beyond a fault.  But because of the busy-ness of the world in which we live, being aware of, or having the time to care for, the problems of subordinates, is a rare trait.

For the Federal and Postal employee who suffers from a medical condition, such that the medical condition necessitates filing for Federal Medical Disability Retirement benefits through the U.S. Office of Personnel Management, whether the Federal employee or the Postal worker is under FERS or CSRS, the process will require the request for completion of SF 3112B, or more commonly known as the Supervisor’s Statement. For some, it will merely be a nuisance in the mere act of requesting; for others, a chaotic turmoil of sorts, filled with angst and thoughts of retribution and retaliation.

Ultimately, however, this is where standardized forms work for the benefit of Federal and Postal employees, because of the specificity of questions posed in SF 3112B.  Yes, there are blank spaces for some extemporaneous comments; yes, attachments to SF 3112B are allowed; but the most relevant queries are merely requests for box-checking, and that is where brevity is to the benefit of the Federal employee or Postal worker.

In the end, the process of filing for Federal Disability benefits through OPM is based upon the sufficiency of medical documentation, and not what a Supervisor says or leaves out in SF 3112B.  That is why an executed methodology of a coherent strategy to obtain evidentiary support is so crucial to a successful outcome in preparing, formulating and filing for Federal Employee Disability Insurance benefits, whether the Federal employee or Postal worker is under FERS or CSRS.

 

Sincerely,

Robert R. McGill, Esquire

 

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 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: Psychiatric Conditions and Accommodations

In preparing, formulating and filing a successful Federal Disability Retirement application with the Office of Personnel Management, under FERS or CSRS, the issue of accommodations will come up.  The Agency from which one retires under a Medical Disability Retirement will have to ultimately fill out Standard Form 3112D —  Agency Certification of Reassignment and Accommodation Efforts — which will constitute and satisfy the Agency’s attempts at “accommodating” a Federal or Postal worker in his or her current position, taking into account his or her medical conditions. 

Unfortunately, most medical conditions are deemed to be “non-accommodatable” (if such a term exists in the English Language), and this is logically as well as legally true because with or without the accommodations, one must be able to perform all of the essential elements of one’s positional description.  Minor adjustments to the workplace, or even to the work assignments, may be able to allow for the Federal or Postal worker to continue to work in a Federal or Postal position for some time, but that Federal or Postal worker must be able to perform all of the essential elements of the job, as described in the position description.   An Agency may temporarily suspend certain elements of the core functions of the job, but such temporary suspension does not constitute an accommodation under the law. 

For psychiatric medical conditions, it is rare that an Agency will be able to accommodate such a medical condition, precisely because of the inherent nature of the medical condition — that which impacts upon one’s focus, attention, concentration, and ability to organize and perform executive functions in a coherent and systematic manner.  As such, the issue of accommodation, while one which may have to be addressed in preparing, formulating and filing a Federal Disability Retirement application, is normally an irrelevant, non-issue.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: OWCP, SSD, NRP, Etc.

Nothing works in a vacuum.  Issues surround medical disabilities, the Federal and Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Federal or Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps. 

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark. 

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Be Discerning

In many ways, there is too much information “out there” about anything and everything.  The area of Federal Disability Retirement Law under FERS & CSRS is no different (and, admittedly, the irony is that I may be adding to the compendium of information with my incessant blogs, articles, reflections, etc.).  The real problem, however, is not necessarily the quantity of information, but rather the quality — and for Federal and Postal employees who are attempting to understand all of the issues surrounding Federal Disability Retirement, it is often difficult to categorize and separate and distinguish between “good” information and “bad” information.  For instance, there is the local/district Human Resources personnel for an employee’s Agency.  Agency H.R. offices are made up of “people” — both good and bad, both competent and incompetent; both helpful and downright ornery.  Then, there is the Office of Personnel Management.  There are multiple internet sites, blogs, a plethora of lawyers (though, there are not that many lawyers who are versed in the area of Federal Disability Law).  The bottom-line issue is not one of “quantity” of information, but how to discern between “good” information and “bad” information.  Too often, a person will call me and tell me that “so-and-so told me that X occurs when you file for Federal Disability Retirement — is that true?”  My response is of a standard nature:  I do not sit and argue or contradict some third person whom I have never met, and against a statement which may have been taken out of context.  Instead, I ask my caller, potential clients, and anyone and everyone who reads my writings, to look at the substance of what I write and say; review the consistency of what I have written, and make your own judgment:  Discern well by checking out the facts, and seeing if what others have said about me, or what I have said, rings true.  Be discerning.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: Be Smart

Disability retirement under the Office of Personnel Management, and Worker’s Comp benefits from the Department of Labor, OWCP — normally, I explain that the two have nothing to do with each other, and “never the twain shall meet” (except, of course, insofar as one must choose one or the other; that causality or “on the job” issues are not relevant for OPM disability retirement; or that OWCP pays more but is not a retirement system, etc. — thus, all of those distinctions and differences which only serve to emphasize the separation between the two benefits).  However, there are instances when the applicant filing for OPM disability retirement benefits, and who (at the same time, coincidentally) has been under the thumb of OWCP, should “cross over” between the two — especially when he or she has received a favorable Second Opinion stating that the (so-called) Independent Medical Examination shows that the OWCP beneficiary is unable to return to the job.  In that instance, such a medical opinion can and should be used for OPM disability retirement purposes.  In fact, such a medical opinion is often viewed by OPM as “independent” and “unbiased”.  To a great extent, this is somewhat of an irony, because from the employee’s viewpoint, the Second Opinion Doctor is anything but an “unbiased” doctor (in most instances), inasmuch as OWCP/DOL is paying for his or her services.  But when that “unbiased” doctor gives a favorable opinion, then it can work to your advantage when filing for disability retirement benefits from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esqire

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire