FERS Medical Retirement: Revisiting SF 3112D on Accommodations

OPM SF 3112D

Whatever the concept of “integrity” entails, it must always focus — if it is to mean anything at all— consistency of principled behavior.  For, an individual cannot believe in X and behave in Negative-X and retain any reputation for integrity.  Similarly, one cannot believe in Y on Monday, but on Tuesday behave in a manner which negates the principle of Y.  Now, John Rawls aside (who would maintain in his stupendous work, A Theory of Justice, that consistency in Justice (with a capital letter “J”) can still be maintained even if, for example, the death penalty were to be imposed for those convicted on Mondays, Wednesdays and Fridays, whereas a life-sentence were to be imposed on Tuesdays and Thursdays, precisely because of its predictability of consistency — but that is a subject-matter for another article), “integrity” by definition must entail a consistency of application; otherwise, such refusal to apply a consistency of application undermines credibility.

The U.S. Office of Personnel Management — the Federal Agency which makes a determination on all Federal Disability Retirement applications — has taken to rejecting the Federal Agency’s statement & conclusion concerning accommodations, as delineated on SF 3112D — Agency Certification of Reassignment and Accommodation Efforts.  Look at the choices in Section 4.  In a Federal Disability Retirement case, the optimal box which the agency may check which would fully support a FERS Disability Retirement application is the first one, which declares:

No, the medical evidence presented to the agency shows that accommodation is not possible due to severity of medical condition and the physical requirements of the position.  (Attach copies of all medical evidence supporting the statement and explain why conditions prohibit accommodation. Also, provide a detailed statement of the physical requirements of the position.) Employees should be counseled concerning the following: The fact that your agency has determined accommodation to be unavailable due to status of a medical condition or due to restriction imposed by a physician does not guarantee that OPM will reach the same decisions about the approval of a disability retirement application.

Why would Box 4A be the “first choice” which would favor a Federal Disability Retirement application?  Because of several reasons: (A) It is an admission by the Agency, after reviewing the Federal Disability Retirement application, the Applicant’s Statement of Disability (SF 3112A), the accompanying medical documents and likely the Supervisor’s Statement (SF 3112B), that they are unable to accommodate the applicant, (B) Almost as powerful as an Agency’s proposal to remove based upon the applicant’s medical inability to perform the essential elements of one’s job (which automatically triggers what is termed the “Bruner Presumption), checking Box 4A is another way of stating that there is nothing to preclude eligibility for Federal Disability Retirement benefits, and (C) The Agency itself has performed a comprehensive comparison between the positional requirements and the medical conditions, and has concluded that nothing further can be done.  Now there is a caveat — that last addendum statement stating, The fact that your agency has determined accommodation to be unavailable due to status of a medical condition or due to restriction imposed by a physician does not guarantee that OPM will reach the same decisions about the approval of a disability retirement application.  Now, what can this possibly mean?  Why would they append such a caveat at all, and where do you ever find such a disclaimer (except in sales contracts at Used-Car Dealerships or in marital prenuptial contracts, perhaps).

In fact, OPM regurgitates this addendum statement in many of the denial letters issued, and this is where the question of integrity surfaces.  For, the old adage applies — what is good for the goose is good for the gander.  As integrity requires consistency, so consistency mandates that the U.S. Office of Personnel Management — as an allegedly “non-partisan, unbiased and objective” entity merely calling “balls and strikes” in accordance with “the law” — should therefore be just as critical of any of the other boxes checked, as when Box 4A is checked.  Which brings up the question: Why is this disclaimer only applicable to Box 4A? Why not to 4B or 4C, or any of the subsequent boxes for Sections 5 or 6?  Why, again, only for Box 4A?

How can OPM question the decision of the Agency which employs the applicant who is filing for Federal Disability Retirement benefits?  Granted, the U.S. Office of Personnel Management is empowered to review, assess, evaluate, and make the final and ultimate decision on every Federal Disability Retirement application under FERS — but in the end, who is better suited to make a determination on accommodations than the agency which employs the Federal or Postal employee who has filed for Federal Disability Retirement under FERS?  What special knowledge, or meta-knowledge, does OPM possess, beyond an Agency’s determination which compares the positional requirements and contrasts that against the medical evidence provided by the applicant, in determining whether or not an accommodation could be provided?  The answer is: OPM is not privy to any special evidence to base its judgment, any more than the Federal Agency which determines that no accommodations are possible because of the nature, extent and severity of the medical conditions suffered by the applicant.

In the end, of course, any discussion concerning accommodations pertaining to a Federal Disability Retirement case under FERS must refer to the seminal case of Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001).  There, the Federal Circuit Court clearly delineated and outlined the applicable provisions governing Federal 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.” The “battlefield” which the U.S. Office of Personnel Management is forced to wage its offensive upon in attempting to defeat and deny a Federal Disability Retirement application under FERS, is the Gettysburg identified as the land of “accommodations”.  For, what OPM systematically argues is that:

A.  So what if your agency states that accommodations could not be provided.  It doesn’t mean that we have to accept what the agency states (i.e., see the caveat discussed above for Section 4, box A).
B.  Even if your Agency states that your medical conditions are so severe as to be unable to be accommodated, nevertheless, we will ignore such a concession and argue that your medical evidence doesn’t show (no matter how severe the medical conditions are described and delineated in a medical report or accompanying treatment notes) that the medical conditions could not have been accommodated.
C.  And if your Federal Disability Retirement application was filed after your separation from Federal Service, we will argue that your former Agency could have accommodated you, no matter what your medical conditions are, and no matter what your former agency says about their inability to have accommodated you.

Bracey was a seminal case which clarified any ambiguities concerning accommodations in the workplace, with reasoned explanations and clarification of conceptual muddles.  So many clarifications were posited, and OPM’s multiple arguments were systematically rebuffed — arguments which OPM, despite the clarification of “the law” governing Federal Disability Retirement and accommodations, continues to make.   For example, Bracey clearly rebutted any arguments concerning “light duty” or “temporary details” where such temporary or light duty assignments did not constitute an accommodation.  There is certainly nothing wrong with an agency allowing for such light duty or temporary assignments, but they do not constitute an “accommodation” such that they would preclude a Federal Disability Retirement application to be successfully applied for.   As Bracey clarified, whatever an “accommodation” consists of, it must be such that the Federal or Postal employee is able to — eve with the “accommodation provided by the agency” — perform the essential elements of the Federal or Postal employee’s position of record.  OPM will attempt to argue that, whatever duties are assigned to the Federal or Postal employee, if he or she can perform those duties, then the Federal employee has been “accommodated” and therefore is no longer eligible for Federal Disability Retirement benefits.   But as the Court in Bracey unequivocally pointed out, while it is commendable that an agency may allow for a light duty or temporary position to be granted in order to retain the employee, such an ad hoc set of duties does not — technically and legally speaking — actually constitute an accommodation; for, the light duty or temporary assignment is not what the position of record is comprised of.

In the end, the U.S. Office of Personnel Management will do whatever it wants to do — and that is precisely why the system of “checks and balances” is structured, so that when OPM makes up its own rules and regulations concerning Federal Disability Retirement eligibility and issues surrounding “accommodations” , there is a separate entity — the U.S. Merit Systems Protection Board — which oversees and ensures that the law is properly and strictly applied.  As pointed out, “integrity” consists in consistency of actions, and when the consistent application of the law is ignored, the integrity of the systems begins to fail.

The issue of accommodations must always be revisited; for, as previously stated, that is the battlefield which much of OPM’s arguments are based upon. When the agency attempts to retain the employee by offering light duty or temporary assignments, OPM argues that he or she has been accommodated — even when it is clear that no such thing has occurred.  If the Agency concedes that no accommodations are possible because of the inconsistency between the medical conditions and the requirements of the position, OPM ignores the determination of the Agency and declares that they simply “disagree with the Agency’s determination”.  On the other hand, if the Agency declares that some accommodations have been provided (even if ineffective and therefore, even with the accommodations, the employee still cannot perform all of the essential elements of the position), OPM immediately pounces upon such statements and never questions whether they are true or not.

And so the battles continue to be waged, and the issue of accommodations must always be revisited, if for no other reason than to make sure that the U.S. Office of Personnel Management is forced to comply with the dictates of the law, which is too often ignored at the expense of Federal and Postal employees who are eligible and entitled to Federal Disability Retirement benefits — but for the misapplication and misinterpretation of the laws governing Federal Disability Retirement benefits under FERS.  For, in the end, it is the battlefield victory based upon consistent application of the law which preserves the integrity of the entire system, and thus the onus is placed upon each Federal Disability Retirement case to maintain and retain the benefit of Federal Disability Retirement, for the benefit of all Federal and Postal employees.

I am a FERS Medical Retirement Lawyer who represents Federal and Postal Service employees from all across the nation, including Alaska, Hawaii and Puerto Rico.  I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:


Robert R. McGill, Esquire


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