Federal & Postal Disability Retirement: It’s a Dog’s Life

Animals are entities we encounter as subjects in a world of objects, but with whom we can have relationships and interactions beyond mere utility; the affection of a dog or similar pet, their importance in one’s life — these are beyond measurable quantification of significance.  But there is a difference in the “other” species; of the immediacy of need, the lack of concern for tomorrow, and happiness determined by thoughts of future occurrences or predicted circumstances.

Trouble makers

Looking for trouble (don’t try this at home … these puppies are trained professionals).

That difference is often what determines the linear intractability of human anxiety, as opposed to the fullness of joy seen in a dog or a cat.  Dogs are happy because they are; the present immediacy of their satisfied lives is contained within the existential presence of the here and now.  Worries about tomorrow, or next year; how will we get on with life? What is the meaning of…   These are not tangible concerns which dogs and cats, or other similar species, concern themselves with.

For Federal employees and U.S. Postal workers who suffer from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, those anxiety-filled question impacting future security come to the fore, and begin to haunt.  But that life could be like that of a dog; yet, on the other hand, one need only visit the many animal rescue facilities to conclude that a dog’s life is not always a metaphor for endless joy.

Sleepy puppy

After a long day terrifying JWs, girl scouts and mail carriers, this puppy needs a nap. (This model is the nephew of a former Postal employee and client).

For the Federal or Postal worker, filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether one is under FERS, CSRS or CSRS Offset, should have some weight of relief as an option for the future.

It is, after all, a benefit which is part of one’s employment and compensation package, but one which is often not emphasized at the initial stages of one’s career.  It provides for an annuity while allowing for employment outside of the Federal Sector, within certain guidelines and limitations.

During a time of medical need, the priority of concerns should always be:  attend to one’s medical conditions; get through each day to the best extent possible; secure one’s future, including filing for OPM Disability Retirement benefits if one is a Federal employee or a U.S. Postal worker, as soon as the need becomes known.

For the Federal and Postal worker, such priority of circumstances is what determines the present and future happiness of one’s existence; for the dog, it is the second of the three which matters, but then, as long as the meal is served, and the after-dinner treat is offered, the wagging tail tells the tale of contentment at the end of a long day’s journey.

Sincerely,

Robert R. McGill, Esquire

 

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: 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

OPM Disability Retirement: It Is a Medical Issue

If a Federal or Postal Employee is still on the rolls of the Agency, or if you have not been separated from service for more than 31 days, then the disability retirement application must be routed through your agency before being forwarded to the Office of Personnel Management for processing and review.  If you have been separated from Federal Service — meaning, you have actually been taken off of the rolls of your agency (this does include being on sick leave, or on annual leave, or on leave without pay) — for 31 days or more (but not for more than 1 year, in which case you have lost your right and ability to file for Federal Disability Retirement benefits, because you have allowed the 1-year statute of limitations to pass by), then you must file your case directly with the Office of Personnel Management in Boyers, PA.  Whether routed through your agency or directly to the Office of Personnel Management, remember that a Federal Disability Retirement application is ultimately a medical issue — not a supervisor’s issue, not an agency issue; it is not determined by your agency; your eligibility is not determined by your supervisor.  It is, essentially, and at its very core, an issue between you, your doctor, and your inability to perform the essential elements of your Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Beware the Layman

Federal employee attorneys create and manufacture a parallel universe of statutory interpretation, legal argumentation, case-law citations, and extrapolations from esoteric provisions in arguing the “finer points” of law.  Thus, it is a temptation for the lay person — the “non-lawyer” — to attempt to borrow from cases and take a stab at citing case-law and statutory authority in trying to garner support for his or her Federal Disability Retirement application.  In taking on a case at the Reconsideration Stage or the Merit Systems Protection Board, I have the opportunity to read some of the “legal arguments” which non-lawyers have attempted to make.  While many such arguments are valid, some (i.e., too many) mis-cite the law, and often fail to understand and proffer the substantive import of what the cases are saying.  On top of it all, I suspect that the Office of Personnel Management gets a bit annoyed when a non-lawyer applicant attempts to preach the law to another non-lawyer OPM Representative.  A word to the wise:  let lawyers entertain themselves in the parallel universe of the law; let the doctors render their medical opinions; let the non-lawyers make the best arguments possible, in layman’s language. 

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: To Resign or Not To Resign

I am often asked whether or not it is okay to resign from the Agency prior to either (1) filing for disability retirement or (2) receiving a decision from the Office of Personnel Management. A decision to resign from the Agency must be weighed very carefully, for there are multiple factors which must be considered.

I will try and outline a few of the considerations to be weighed:

(1) What advantage is gained by resigning? If it is merely to avoid the hassles of dealing with the Agency (the Agency may insist upon updated medical documents every couple of weeks; they may call and harass you every week; you may have an unsympathetic supervisor, etc.), then I normally advise against resigning. There is no advantage to resigning, other than the quietude of being separated from service. As an attorney, I believe that is not enough of a reason.

(2) What is the disadvantage of resigning? There may be many: Any leverage to force the agency to cooperate with a disability retirement application may be lost; if your doctor has not yet written a medical narrative report (and, believe me, for some doctors, that can take months), the doctor will have to be reminded that any statement of employment impact must pre-date the date of resignation; you lose the leverage of that which the Agency holds most dear, for no price: your position. For the position you fill, that slot which suddenly becomes vacant once you resign, is that which is most dear, most valuable for the Agency: and to resign is to give it up without having the Agency pay any cost.

Sincerely,
Robert R. McGill, Esquire

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

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

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

Accommodation Under FERS & CSRS Disability Retirement

The issue of Accommodations is always an important one in FERS & CSRS disability retirement cases. Agencies on the one hand will often attempt to “put together” a set of duties for the employee to perform, and try and keep a productive employee with the Agency.

There is nothing wrong with this. Indeed, it may even be commendable for the Agency to try and “accommodate” a good employee in such manner. However, such an ad hoc set of duties is not legally an acceptable “accommodation”, and when it comes to filing for disability retirement, it does not preclude a person from being able to file for, and be eligible for, disability retirement. Court cases have upheld this view.

Thus, in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

Note this last provision, because that is the “all-important language” with respect to the issue of accommodations. What the Court in Bracey stated, is that the term “accommodation” is a legal, precise term, and it means that in order to be a true accommodation, the Agency must do one of two things: Either, provide for working conditions such that an employee can continue to perform all of the essential elements of the position that the employee is occupying, or place that employee into an existing vacant position — at the same pay or grade. This latter point is also important: in Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Remember: if you have a medical condition such that you can no longer perform one or more of the essential elements of your job, your Agency can certainly give you a set of duties to keep you in that position, and if you can do those duties, and like the type of work provided, that is great. However, if and when a new supervisor comes he, that supervisor can negate such an ad hoc set of duties, and declare that all employees must henceforth be able to do all of the duties of the official position description. That is why an ad hoc set of duties does not constitute an “accommodation” under the law — because what is assigned “ad hoc” can also be taken away “ad hoc”.

Unless a Federal Employee is legally accommodated, he or she has the option of filing for disability retirement. Don’t be fooled by an Agency who says, “Don’t worry; we’ll reduce your workload and let you work a light-duty position.” That “light-duty” position will not necessarily be permanent, especially when the next Supervisor comes along.

Sincerely,

Robert R. McGill, Attorney