The Difference between “Accommodation” Used in a General Sense, and in a Legal Sense

— If a word can mean more than one thing, must it have an equal number of corresponding objects in the world in order for the word to be real? Must each word correspond to something in “the world” in order for the word to have any meaning? If a word has no corresponding reference to the “real world”, is it really a word, or merely made-up nonsense, without meaning, like Bertrand Russell’s clever and mischievous statement, “The present king of France is bald”. Since there is no king of France, can it make any sense that the statement refers to baldness without an existing king? Yet, we know the meaning; and so perhaps words can be nonsense while having meaning.

From — Philosophical Conundrums

When a Federal or Postal employee files an application for Federal Disability Retirement benefits under FERS or CSRS, one of the many issues immediately introduced, and which must be confronted, is the legal issue of “accommodation”. The fact that you can show that a medical condition prevents you from performing one or more of the essential elements of your job, is merely the first step in proving eligibility for Federal Disability Retirement benefits. Can the Agency ‘accommodate’ the individual’s medical condition? Is the action initiated by the Agency a legally viable ‘accommodation’ such that it can prevent eligibility for disability retirement benefits? Or, as in most cases, are the actions merely ‘accommodating’ measures which do not rise to the level of a ‘legal accommodation’?

The prevailing Court cases which govern the issue of accommodations in Federal Disability Retirement law continues to be the United States Court of Appeals for the Federal Circuit case, Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001) (and its companion case, which extended the same concept to FERS employees, in Marino v. OPM, 243 F.3d 1375 (Fed. Cir. 2001) ). The impact of Bracey and Marino have been previously discussed in other articles; for purposes of the present discussion, it is sufficient to point out that both cases essentially stand for the legal proposition that an agency cannot prevent a Federal or Postal employee from being eligible for Federal Disability Retirement benefits “by assigning an injured employee to an ad hoc set of light duties as long as it continues to pay the employee at the same level as before”. (Bracey, 236 F.3d 1356, at p. 1362) This is the clearest way of understanding the distinction between the ‘legal’ sense of the term ‘accommodation’, and the ‘general’ sense of the term.

In the general sense of the term, an Agency’s efforts to accommodate a Federal or Postal employee in the workplace are indeed a laudable goal and mission. Don’t misunderstand the import of what the Court in Bracey stated: if an Agency wants to retain a valued employee, there is nothing wrong, nefarious or improper with assigning an injured employee an ad hoc set of light duties, and continue to pay the employee at the same level as before. The primary issue is whether or not assigning such an ad hoc set of duties will preclude and prevent one from filing for, and obtaining, Federal Disability Retirement benefits from the Office of Personnel Management. The answer can be found in the manner in which the U.S. Merit System Protection Board interprets the Bracey and Marino cases.

A true test and application of the distinction between the ‘legal’ sense of the term, and the ‘general’ sense of the term, can be seen in the case of Selby v. OPM, Docket #SF-844E-05-0118-I-1 (June 9, 2006). This is an especially interesting case because of the factual setting, and the legal application of the principles espoused in Bracey and Marino. The factual setting of this case is interesting for a number of reasons: First, the “unrebutted evidence shows that the light-duty assignments performed by the appellant bore no relation to the essential duties of his official position,” thereby fitting nicely into the Bracey view concerning “ad hoc” duties; Second, the appellant was only working 6 hours per day, and performed many clerical duties (which clearly were not part of his position description as a Tool Room Mechanic), and received two hours of OWCP compensation per day; and Third, the appellant filed for OPM Disability Retirement benefits after he had been separated from Federal Service pursuant to a reduction-in-force (RIF). In other words, this is a case which, as a factual paradigm, would test the applicability of Bracey and Marino, because it shows that the appellant: (A) continued to work in his “position”; (B) was “accommodated” (in the general sense, not the legal sense) by his Agency, and (C) did not even file for disability retirement because of his medical condition (he had been working in his light-duty position since 1986, and did not get a RIF until August, 2003), but rather, he filed for Federal Disability Retirement benefits because he had been separated from Federal Service pursuant to a RIF.

The Merit System Protection Board sided with the Appellant, and upheld the Administrative Judge’s decision that the Appellant was entitled to Federal Employee Disability Retirement benefits. What is especially interesting is that the dissenting Judge in this case argued that it wasn’t “logical” that the appellant should be deemed “disabled”, since he was able to work all of those years up until the time he was separated because his job was terminated (the decision was a 2 – 1 decision in favor of granting OPM Disability Retirement benefits). But this is not an issue of logic; rather, it is an issue of applying the precedential case of Bracey and Marino, and following what the law demands by the higher and authoritative U.S. Court of Appeals for the Federal Circuit. The concept of being “disabled” must be understood in the narrow and legal sense of the term when applying it within the purview of Federal Disability Retirement laws. “Disabled” means that one is unable to perform one or more of the essential elements of one’s job – not whether he couldn’t do any job at all. Clearly, from 1986 until his separation from Federal Service in 2003, the appellant was working – but working how? He was working in a light-duty position; he was working only 6 hours per day; and he was receiving 2 hours of OWCP compensation per day. This last fact should not be misunderstood as to its import and significance, for the MSPB itself emphasized this very point: “The fact that he (the appellant) was receiving two hours of workers compensation a day also buttresses his claim that his injuries prevented him from performing many of the critical elements of his position.”

Part of being able to perform the essential elements of one’s position, is to be able to perform the full panoply of the position – including the full 8 hours of work required. The issue here is not whether or not the Appellant was “disabled”; the issue is whether the Appellant was disabled from one or more of the essential elements of his job. Further, what one must understand – and what the factual scenario of Selby v. OPM clearly shows – is that the Appellant, Mr. Selby, could have filed for OPM Disability Retirement benefits at any time during the period from 1986 – August, 2003, as well as for up to one year after being separated from Federal Service. It was laudable that Mr. Selby’s Agency allowed him to work in a light-duty capacity; it was laudable that Mr. Selby continued to work from 1986 until his separation from Federal Service in 2003, and was willing to do all sorts of ad hoc jobs, duties and tasks. None of this, however, prevented him from being continuously eligible for Federal Disability Retirement benefits.

As the two Administrative Judges in Selby v. OPM stated, “Where, as here, an employee is given a light-duty assignment that does not enable him to continue performing the critical or essential elements of his official position, Bracey compels a finding that he has not been afforded an accommodation disqualifying his entitlement to a disability annuity.” The term and concept of “accommodation” has a narrow, specific meaning when used in the context of Federal Disability Retirements laws under FERS & CSRS. There is also a more general, non-legal use of the term, but every Federal and Postal employee who is considering filing for Federal Disability Retirement benefits must understand the distinction between the two. The meaning of a word is important in determining its significance within the proper context and use of the term. Here, the term “accommodation” has a specific meaning within a narrow context. Know the term, within the proper context, in order to understand the use of the term. Otherwise, one’s lack of knowledge may be to the detriment of being eligible for Federal or Postal Disability Retirement benefits.

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Sincerely,

Robert R. McGill, Esquire

 

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