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 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: OWCP Acceptance & Federal Disability Retirement

Case acceptance by the Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP) makes it easier for the Agency to make a determination on issues of accommodation, which is one of the elements which must be established in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  

On the one hand, when a Federal employee has been deemed to be “permanent and stationary”, the issue as to whether or not the Agency can reassign the Federal employee, or accommodate him such that the employee can continue to perform all of the essential elements of his or her job, can be easily established, in conjunction with and through the cooperation of a case manager from OWCP.  But even a modified job does not preclude an employee from filing for, and being eligible for, Federal Disability Retirement benefits under FERS or CSRS, precisely because such a modified or “light duty” job is not a permanent position, but rather an ad hoc set of duties as described in the prevailing case of Bracey v. OPM.

On the other hand, when a Federal or Postal employee has been accepted by OWCP and placed on “temporary total disability” — even if the “temporary” nature of such compensation continues on and on for many years — then it makes it easy for the Agency to simply forget about the employee and not even search to see if accommodating the individual is even possible.  

Thus, being placed on OWCP often makes it a simple administrative matter for the Agency.  No accommodations need to be searched for, and the Agency can move on, leaving the Federal or Postal employee in perpetual limbo.  

Concomitantly, however, for the Federal or Postal employee, the fact that one’s medical condition has been accepted by OWCP/DOL can be used as one element to file for Federal Disability Retirement benefits, to show that being on OWCP has some evidentiary weight that (A) the Agency is unable to accommodate the Federal or Postal worker, and (B) that there is persuasive evidence that another Federal Agency has determined that the Federal or Postal employee is disabled, and (C) that receiving temporary total disability is an indicator that one is unable to perform one or more of the essential elements of one’s job.  

Nevertheless, beyond the proof of acceptance by OWCP, the Federal or Postal employee must still affirmatively prove by a preponderance of the evidence that the medical evidence proves that one is unable to perform one or more of the essential elements of one’s job. Being on OWCP may have some minimal persuasive impact; it is still up to the Federal or Postal employee who is preparing, formulating and filing a Federal Disability Retirement application that he or she is eligible for the benefit.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Problem with OWCP

Agencies which have employees who cannot perform one or more of the essential elements of one’s job will often encourage him or her to file for Department of Labor, Office of Workers’ Compensation Program benefits (DOL/OWCP), if the injury or medical condition occurred as a result of an on-the-job incident, or can be shown to have an occupational cause.

That is fine, so far as it goes.  For, OWCP is set up with the intent of addressing those medical conditions and issues which are work-related.  However, when agencies begin to use OWCP as the dumping ground for workers they don’t believe are fully productive, it becomes a problem because OWCP is not intended for long-term compensation, but merely a venue in order to compensate a Federal or Postal employee for a temporary time in order for the worker to recuperate from his or her medical condition or injury, then to return to full duty.  It is not meant to be a retirement system.

Further, it only compensates for those injuries which are causally related to the workplace.  As a dumping ground, it makes it easier for the Federal agency or Postal Service to deny the ability to accommodate the Federal or Postal Worker, or to reassign the individual, and instead to provide the proper forms to file for Workers’ Compensation benefits.  This doesn’t mean, however, that OWCP will accept the claim, either as an original claim or as a recurrence.  OWCP is not a retirement system.  

On the other hand, OPM Disability Retirement under FERS or CSRS is meant to compensate Federal or Postal employees who have a long-term medical condition.  If the agency cannot accommodate the disabled Federal or Postal Worker, that is an option to be considered.  If you are “unwanted” — and the agency shows every inclination of that — it may be time to consider the option of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Working while Waiting

Because of economic necessity, it is often advisable for Federal and Postal employees who are filing or have filed for Federal Disability Retirement benefits under FERS or CSRS to continue to work, to the extent possible, without damaging one’s health.  

Often, agencies will “accommodate” a Federal or Postal employee during the waiting process — utilizing the term “accommodation” in a loose sense of the word, and not in compliance with what the law requires in terms of the concept of “accommodation” for purposes of Federal Disability Retirement.  Thus, in the loose sense of the term, an Agency may temporarily accommodate a Federal or Postal employee with light duty work, suspension of one or more of the critical elements of one’s position (such as traveling, lifting certain heavy things, standing for extended periods of time, etc.), and that would be helpful to allow for the income to the Federal or Postal employee during the long administrative process.  

However, one should also be aware that, upon an approval of a Federal Disability Retirement application from the Office of Personnel Management, any back pay will be awarded only to the last day of pay — whether it is for a full week’s wages or for a dollar.  

Thus, since back pay for the first year will be at a rate of 60% of the average of one’s highest three consecutive years, it is wise to calculate and see whether the amount of work one is performing falls below the 60% mark.  If it does, then it might be prudent to go out on LWOP.  On the other hand, it may well be that economic necessity will dictate one’s decision and force the issue, and that would be fine — so long as one makes a decision on matters impacting Federal Disability Retirement benefits based upon full knowledge and comprehension of all of the relevant facts.

Sincerely,

Robert R. McGill, Esquire