FERS & CSRS Disability Retirement for Federal and USPS Workers: Pragmatism

The practice of the philosophical school of “Pragmatism” is what many Americans associate themselves with — precisely because America was, and continues to be (as of late, anyway), a country which invents, manufactures, creates, etc., and prides itself on its technological “forward-thinking” ways.

Pragmatism is a uniquely American philosophical approach — one in which William James (an American) had an influence upon, where the methodology of determining truth consisted in the combination of the correspondence theory of truth and what he considered a “coherence” theory of truth, where not only did a given statement need to have a correspondence with the physical world, but moreover, the entirety of the statement had to “cohere” with other statements asserted.  Pragmatism is an “applied” approach.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is always important to remember the “nuts and bolts” of putting together a Federal Disability Retirement application.  In other words, one must take a very “pragmatic” approach to the entire administrative process.

From dealing with doctors who may be skeptical about his or her ability to relate a medical condition to one’s positional duties in the Federal government or in the Postal Service; to making sure that the Human Resources department assists in processing the Federal disability retirement application; to writing an effective and compelling Applicant’s Statement of Disability — these are all considerations where the subject of the application — the very person who is suffering from the medical condition — must set aside the anxieties, frustrations and fears, and set about to pragmatically put together an effective Federal Disability Retirement application.

As “pragmatism” finds its roots in the Greek word pragma, from which we get the words “practical” and “practice”, so it is important to consult with those who have the experience in the very practice of Federal Disability Retirement law.  Indeed, coherence and correspondence are two traits which the Office of Personnel Management looks for in a Federal Disability Retirement application.  William James would have been a good lawyer for Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Narrowing the Options

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, clarification of the direction, purpose and choices/options available is often helpful in compiling an effective and compelling Federal Disability Retirement case.  

Often, there is hesitancy in preparing the application, and such hesitancy and pause are a sign that there is a part of the Federal or Postal worker who is hoping that the medical condition will either resolve itself, or that somehow — in some nebulous and obscure thought-processes — procrastination will result in resolution and continuation in the career one has chosen.  

Narrowing the options with a perspective of reality-based evaluation of one’s situation, however, is important in taking the initial steps.  “Preparation” constitutes thinking about the various options, including questioning the circumstances of one’s medical history, present reality, and future expectations.  

Thus, some questions might be:  Can I continue to work at this job until retirement?  If I continue to work at this job till retirement, will my health have been impacted so detrimentally that I will be in a debilitated state such that “retirement” would be a meaningless goal?  What is my doctor saying?  Will my doctor support me in an application for Federal Disability Retirement benefits?  How is my agency acting/reacting?  Will they continue to tolerate less than full performance and productivity?  What are my choices — work till retirement, file for Disability Retirement, or walk away without anything?  

Such narrowing of choices and options, through proper questioning, is the initial preparatory step in preparing, formulating and filing for Federal Disability Retirement benefits, whether under FERS or CSRS, from the Office of Personnel Management.  

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Clarifying Accommodations

There is a conceptual and legal distinction to be made between an Agency’s “accommodations”, as used in a loose, non-technical manner, and being “accommodated” in accordance with the laws, regulations and statutes governing Federal Disability Retirement under FERS or CSRS, and as intended in usage on Standard Form 3112D, Agency Certification of Reassignment and Accommodation Efforts for the Office of Personnel Management.  

Often, when a Federal or Postal employee becomes injured (whether on the job or while on vacation is an irrelevancy for purposes of Federal Disability Retirement eligibility), the Agency will attempt to lessen the workload, allow the Federal or Postal employee to work in a modified manner, allow for “light duty” assignments, or even temporarily suspend certain essential elements of one’s job (travel, heavy lifting, required overtime, e.g., etc.), and such efforts on the part of the Agency are commendable, allowable, and perfectly within the acceptable structures of law.  

Such efforts by the Agency are often referred to loosely as an attempt to “accommodate” the Federal or Postal employee’s medical conditions, and indeed, it is a correct (but non-legal and non-technical) use of the term.  It is not, in terms of legal sufficiency, an “accommodation” to the extent that the narrow definition of what it means to be “accommodated” under the law is that an agency will provide an accommodation such that the Federal or Postal employee, with the accommodation, will be able to perform all of the essential elements of what the position requires.  

Lessening the duties temporarily, or suspending certain essential elements of the job for a prescribed period of time, does not allow for the Federal or Postal employee to perform those essential elements of the job, and therefore is not technically an “accommodation”.  That is why most accommodations are not accommodations at all, and as such, those accommodating actions by the agency do not preclude a Federal or Postal employee to file for, and be eligible for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Medical Conditions & OPM

Clearly, there are certain medical conditions which the Office of Personnel Management “dislikes” or has a negative, suspicious view towards, in a Federal Disability Retirement application under FERS or CSRS.  One may attempt to rationally comprehend the innate bias towards certain groupings of medical conditions, but to do so would expend energy which, ultimately, results in an act of futility.

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, nowhere in the statute which provides for Federal Disability Retirement benefits is there notification or indication of a distinction between medical conditions.  As such, any pattern of hostility towards a particular medical condition, or a “type” of medical condition, must have evolved over time.  

The peculiar thing, of course, is the consistency in which all of the Claims Representatives at OPM have developed — of a similar pattern of reaction and behavior towards the “undesirable” medical conditions, as if they all work from a single template and have discussed, in conspiratorial hushed tones, a concerted effort to deny certain cases which are primarily based upon X medical conditions.  

That all said — and put aside as a note of interest but ultimately irrelevant — the way to rebut and overcome the inherent bias towards such medical conditions is to systematically reinforce the statutory requirements for eligibility, by explaining to the treating doctor(s) what is needed in order to overcome such bias.  Ignorance of the law is one thing; misapplication of the law is another.  Both must be overcome by guiding the treating doctor in how to meet the legal criteria, no matter what the medical condition.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: OPM and the 7-Part Criteria

In any denial of a Federal Disability Retirement application under FERS or CSRS, the Office of Personnel Management incessantly refers to their 7-part criteria of eligibility, in making their determination as to the legal viability of a case.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons.  To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria.  To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire.  The 7-part criteria is a Catch-22 in sheep’s clothing.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Value of Preemption

“What if” questions are rarely useful in applying the law, except in a preparatory manner for cross-examination purposes.  No one likes surprises, and to prepare for every potentiality, eventuality, and “what if” scenario is a good idea — but only in a theoretical sense.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the “what if” questions will inevitably arise — What if my Supervisor writes X?  What if OPM asks Y?  What if… ?  The problem with “what if” questions is not in the asking of such questions (for asking them requires contemplation of a potential problem, which may propel preparation to an eventuality); rather, the problem occurs if one attempts to preempt a problem which may potentially exits but never realize its actuality.  

If one preempts a non-occurrence, then what one has done is to wave a red flag and notify the Office of Personnel Management of the problem by bringing up the problem in the first place.  That is often the very essence of the difficulties one finds in the preparation of the Applicant’s Statement of Disability, where the applicant fills out the SF 3112A as if it is a stream of consciousness opportunity to present to the Office of Personnel Management every problem known to man.

Preemption is fine for preparation; it needs to be answered and applied with great discretion.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Applicant’s Statement — from the Generic to the Specific

In preparing, formulating, finalizing and filing a Federal Disability Retirement application under FERS or CSRS, one must (of course) describe and delineate the “bridge” between one’s medical condition(s) and how it impacts or prevents one from performing one or more of the essential elements of one’s job.  This is done on the Applicant’s Statement of Disability (Standard Form 3112A, both for Federal and Postal employees under FERS or CSRS).  

In formulating and describing the impact upon the essential elements, or core job duties, of one’s position, it is often an intelligent approach to begin with the generic, then to provide some specific examples.  This is more of an issue of “form” over “substance”, of course, but is often effective, nonetheless.  By way of this approach in describing one’s medical conditions and their impact upon the essential elements of one’s job, it provides a clarity of understanding for the clerk at the Office of Personnel Management — of first being provided with an “overview” of what the job entails, then to be given specific examples within the context of the overview.  Ease of understanding and a compelling force in telling a narrative story of one’s personal experience in having a medical condition, and its impact upon one’s professional life, will enhance the chances of an approval at the First Stage of the process in fling a Federal Disability Retirement application under FERS or CSRS, at the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire