Tag Archives: Confusions about FERS Disability Retirement

The Agency’s Attempt

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the issue of “accommodations” will necessarily surface, if only because the Agency must complete SF 3112D — the Form which is entitled, “Agency Certification of Reassignment and Accommodation Efforts” (which bureaucrat came up with that title?).

Agencies will often choose the wrong box to check because they will either misread the choices or misunderstand what the statements mean.  For instance, in the third choice of Question 4, it states, “Yes, describe below the accommodation efforts made, attach supporting documentation and provide narrative analysis of any unsuccessful accommodation efforts.”  The problem with the choice itself is that the entire concept of “accommodations” has been clarified, modified, and thoroughly discussed in cases which have been brought before the U.S. Merit Systems Protection Board and the Court of Appeals for the Federal Circuit, and such court opinions have been issued subsequent to the original meaning of the term when the Standard Form was first issued.

But when the Agency completes the form, they will often answer the question in terms of “allowing for liberal use of sick leave” or “letting the employee refrain from doing X, Y or Z”, etc.  But allowing for temporary, light duty work does not constitute a “legal accommodation“, and thus does not go to the requested information.  In fact, the loosely-used term of “accommodation” is actually no accommodation at all.

What to do about it when it happens?  One must be discreet in how to approach it.  For most cases, the agency’s lack of understanding will have no impact at all, and it should not be responded to.  In other instances…

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

Materials and information on this blog are provided for informational purposes only, are general in nature, and do not constitute a legal opinion or legal advice and should not be construed as a legal opinion or legal advice.  For more specific information, or to discuss the specifics of your case, you may contact the author for a free, first-time phone consultation.

The Subjective Experience of Pain

Pain by definition is “subjective”, if by it one means that the experiential verification of the condition is uniquely possessed by the “I”, or the subject of the experience. By contrast, that which is deemed “objective” is presumably validated by more than the possessor of the experiential condition — i.e., by third parties; by testing for the validity and verification of an event through means other than the personal narrative of a singular subject. Yet, if verification of an experience is accepted merely by sheer volume of a collective consensus, then most scientific revolutions in advanced discoveries would never have survived.

In Federal Disability Retirement law, it is often the argument of the U.S. Office of Personnel Management that the Federal or Postal applicant has failed to provide “objective” medical evidence in presenting his or her case. The narrative of having a condition of “chronic pain”, or “severe pain” — being “subjective” by definition — is not deemed “objective“, and therefore cannot be the valid basis alone for a FERS Disability Retirement case (or so the argument by OPM is often presented). Even the results of an MRI will not necessarily satisfy the scrutiny of OPM; for, ultimately, an MRI can only reveal an observable abnormality — not that a person experiences “pain”.

Fortunately, there are a number of cases in law which rebut OPM in their attempt to bifurcate between “objective” and “subjective”, and such legal tools should always be cited and applied in any Federal or Postal Disability Retirement application.

While pain may indeed be subjective by definition, the objectivity of a Federal Disability Retirement application should never be based upon what OPM deems as sufficient; rather, it is the law and the long history of legal guidance by the courts which should mandate how OPM acts. Indeed, if we let OPM’s subjective determinations rule the day, we would all be left in an existential state of pain — one which would then result in a collective consensus which may be deemed objective in nature.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Attorney

This article and others in this blog may or may not have been previously published in the author’s other websites such as the Federal Disability Attorney blog, the FERS Disability Retirement website, or the Postal Service Disability Retirement blog.

It’s a Federal Government Issue

Representation by an attorney who is licensed in one state, of a Federal or Postal employee who lives in another state, is accomplished in a Federal Disability Retirement application precisely because it is a Federal issue and not a State issue.

If an individual has a legal issue which he or she wants advice on, which concerns an event, issue or matter which involves a particular state’s laws, then obviously an attorney from the particular state should be consulted.

In obtaining a FERS Disability Retirement annuity from the Office of Personnel Management, however, it is irrelevant whether or not the attorney is from the Federal or Postal Worker’s state. For one thing, the agency which must be directly dealt with — the Office of Personnel Management — is located in Washington, D.C. (although the initial intake office is located in Boyers, PA).  OPM is the agency which handles all Federal and Postal Disability Retirement applications under FERS, and makes both the Initial Decision in the process, as well as any decision at the Second, or Reconsideration Stage.

In this technologically-centered world of ours, everything can now be handled by telephone, fax, express mail, FedEx, UPS, email, email attachments, etc. It is more efficient this way, and further, there are not that many attorneys who specialize in the field of Federal Disability Retirement benefits from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Lawyer

The legal articles published in this blog are intended for general information purposes only.  Reading this information or exchanging emails do not establish a lawyer-client relationship.  However, you may contact the author for a free case evaluation assessment by discussing the specifics of your case.

How Important is the SF 3112B Form?

It is amazing how a Supervisor’s Statement is completed.  Normally, it is completed without much thought; sometimes, it is completed with too much thought (and self-protective, CYA language concerning how much effort the agency attempted in “accommodating” the employee, when in fact little or no effort was made); more often than not, there is a last, parting shot at the employee — some unnecessary “dig” which often contradicts other portions of the statement; and, finally, every now and then, the Supervisor’s Statement is completed in the proper manner, with forethought and truthfulness.

Fortunately, the Office of Personnel Management rarely puts much weight on a Supervisor’s Statement in making a determination on a FERS Disability Retirement application — unless there is some glaring statement of a deliberate attempt to undermine the Application.  This is rare, because it is a medical disability retirement, not a Supervisor’s disability retirement — meaning, that it is the medical opinion, not the opinion of a Supervisor, which is (and should be) most important.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

The material provided in this blog has been updated from previous publications such as the Federal Disability Attorney blog and the Lawyers.com blog.

Filing for Disability Without a Federal Disability Attorney

Sometimes I get calls all the time by people who tell me that they thought their particular Federal Disability Retirement case was a “slam dunk”; that the medical documentation was there; that everything looked like it should be approved at the first level.  Then, there are people who tell me the same thing after the second, Reconsideration denial — that he or she thought it should definitely pass through.  But law, and especially administrative law before the Office of Personnel Management, has peculiarities beyond a surface, apparent reality.

There is a process and a methodology of obtaining FERS Disability Retirement.  Can a Federal Disability Attorney guarantee the success of a disability retirement application?  No.  Does an individual applicant have a better chance with the assistance of an attorney who specializes in OPM Disability Retirement Law?  In most cases, yes.  Aren’t there applicants who file for medical retirement, without the assistance of an attorney, who are successful?  Yes.  Should everyone who files for FERS Disability Retirement hire an attorney?  Not necessarily.

When I speak to a client, I try and place him or her on a spectrum — and on one side of that spectrum is an individual who works at a very physical job, and who has such egregious physical medical disabilities; on the other side of the spectrum is an individual who suffers from Anxiety, who works in a sedentary administrative position (please don’t misunderstand — many people who suffer from anxiety fall into the “serious” side of the spectrum, and I am in no way attempting to minimize the psychiatric disability of Anxiety).

Most people, of course, fall somewhere in the middle.  Yes, I have told many people to go and file his or her disability retirement application without a Federal Disability Lawyer.  There are those cases which are so egregious, in terms of medical conditions, that I do not believe than an attorney is necessary.  However, such instances are rare.  Thus, to the question, Should everyone who files for Federal Disability under FERS hire an attorney?  Not necessarily — but in most cases, yes.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

Note: The information that appears in this blog is copyrighted.  Originally written by Attorney McGill, it has been updated by the company webmaster.  This article has been previously published in other OPM Disability Retirement blogs.

Federal Employees with Preexisting Conditions

There is still some questions with respect to the relevance of preexisting medical conditions, or medical conditions which were incurred while working, or outside of the workplace, or even before being employed by the Federal Government; and the impact of such medical disabilities upon one’s right to file for disability retirement under FERS. This confusion is evident from some of the questions I have been recently asked.

Remember that preexisting medical conditions are irrelevant to filing for OPM Disability Retirement benefits, in most cases; the fact that an individual has been able to perform the essential elements of one’s job for many years, but comes to a point in his or her career where the medical condition has been exacerbated, or deteriorated, to the point where it begins to prevent one from performing one or more of the essential elements of one’s job, is all that is needed to be shown.

It matters not that the medical condition “preexisted” one’s Federal service; and, indeed, many of my client’s began working with a VA disability rating, but worked successfully for a number of years, until the medical condition(s) underlying the VA disability rating worsened, or came to a point where it began to impact his or her ability to perform the job functions.

Similarly, whether or not the injury or medical disability was incurred while working or while on a skiing trip, is irrelevant.  The primary point and focus in FERS & CSRS Disability Retirements cases, is that a person has the minimum years of Federal Service (5 years for CSRS; 18 months for FERS), and during the person’s Federal Service, he or she incurred a medical condition such that it prevents one from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

 

The content provided here has been updated and previously published in other websites such as the Federal Disability Lawyer, OPM Disability Retirement and/or Federal Disability Attorney blogs.