OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Standard Forms Do Not Mean “Standard Responses”

The problem with “Standard Forms” is that they often appear to solicit “standard responses”, and in a Federal Disability Retirement case under the Federal Employees Retirement Systems (FERS) or the Civil Service Retirement System (CSRS), nothing could be further from the truth.  Indeed, it is often because a Federal or Postal employee/applicant who confronts and begins to fill out SF 3112A, Applicant’s Statement of Disability, the very “blocked” appearance of the form, and the constricting questions themselves, makes it appear as if a “standard response” is required.  Don’t be fooled.

By way of example, take a “special animal” — that of a Federal Aviation Administration Air Traffic Controller who must take a disqualifying medication, loses his or her medical certification from the Flight Surgeon, and thinks that filing for Federal Disability Retirement benefits is a “slam dunk”.  Nothing could be further from the truth.  Or, a Customs & Border Patrol Agent who goes out on stress leave, or suffers from chronic back pain.  Are there “standard responses” in filling out an Applicant’s Statement of Disability?  There are certain standard “elements” which should be considered in responding to the questions, but don’t be constricted by an appearance of “standard responses” to a “standard form”.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Connecting the Dots

Care at every step of the way in preparing an OPM disability retirement application is the key to winning. The metaphorical “dots” that need to be created and connected, will ensure that each aspect of a disability retirement claim is not seen as independent entities, but a part of a larger whole.

When an individual is unrepresented, there is a tendency in filling out the multiple forms that each form is a separate piece of information. That is an incorrect approach to take. What results from such an approach is why certain cases end up at the Merit Systems Protection Board, where the Board has to figure out whether they can accept a medical condition that the applicant failed to list or identify in the original application; or whether the connection to an essential job element was properly made.

While it is true that the Board engages in “de novo” consideration of a disability retirement eligibility issue, their jurisdiction is nevertheless limited by the substantive conditions which are identified in the original application. Thus, for instance, in writing up the Applicant’s Statement of Disability, it is wise to coordinate it by reviewing the medical documentation; when writing up the impact of the medical condition upon the essential elements of one’s job, it is wise to concurrently review one’s official job description. While preparing a Federal Disability Retirement application in a disjointed, independent approach, you are in danger of missing an essential dot; by seeing the inter-dependency of each part of the application, you stand a greater chance of not having to go before the MSPB to test whether they can even listen to your case. Disability retirement applications must be approached in this “wholistic” methodology; that is ultimately the “winning” approach, where all of the dots have been connected.

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