OPM Medical Retirement: A Federal and Postal Challenge

Federal Disability Retirement is a benefit available for all Federal employees and U.S. Postal Workers, whether under FERS, CSRS, or CSRS Offset. So long as minimal eligibility requirements are met – 18 months of Federal Service for FERS employees, and 5 years for CSRS (which, given the nature of the old CSRS system, one assumes that anyone from that bygone era will necessarily have met that criteria) – the prefatory threshold for filing can begin; but beyond, the complexity of the law, the preponderance of the evidence to meet, the bridging nexus to formulate, and the administrative procedures to follow; it is the complexity of the entire bureaucratic artifice and apparatus which must be understood, comprehended, and ultimately overcome, which presents the barricade and challenge to the Federal and Postal employee who is contemplating engaging and encountering the entirety of the procedural and substantive hurdles.

How does one prove a FERS Disability Retirement claim? To answer such a question, the fable of the three pigs is instructive. Harkening back to the memories of childhood, the lessons learned apply today: the first pig built his house from straw; the second, from sticks; the third, with bricks. It is ultimately the materials which are used to form the foundation of any endeavor which will decidedly determine the substantive strength and viability of a Federal Disability Retirement application. In order to meet the standard of proof of “preponderance of the evidence”, one must formulate a tripartite approach which builds from a foundation of straw, progresses to an intermediate structure of sticks, and finally is completed with a firm conclusion of bricks. For, while the three little pigs worked independently and without consultation with one another, it is the symbiotic progression from one element of a Federal Disability Retirement application, building upon the next, and the next, which will result in a successful and effective final product.

First, the straw: Why is Federal Disability Retirement substantively different than Social Security Disability or Federal Worker’s Comp? This question is not intended to touch upon issues of pay, or even the levels of proof required. Instead, the inquiry here concerns the following: Doctors involved in both OWCP claims and Social Security Disability filings are often paid professionals who specialize in disability determinations. For Federal Disability Retirement, however, it is the actual treating doctor who is approached and asked to present an opinion concerning the Federal or Postal Worker’s capacity and capability to perform the essential elements of his or her job. This distinction makes it substantively different in kind, precisely because the focus is first and foremost upon the treatment of the medical condition, and secondarily upon the need to file for Federal Disability Retirement benefits. Think about it this way: Because it is the treating doctor’s opinion which will weigh heavily upon proving a Federal Disability Retirement claim, the treatment itself was the primary focus of the relationship between the Federal or Postal employee and the doctor; it was never the need to prove the legal basis for disability to begin with; rather, disability issues were merely an afterthought.

Straw structures have a feeling of warmth to them. While easily blown apart when the howling wolf may heave its powerful lungs at such a foundation, the fresh smell of straw is tantamount to the inviting reality of a Federal Disability Retirement claim: Most, if not all, Federal and Postal employees did not start off trying to get disability benefits; rather, circumstances beyond their control forced the issue upon them. But as with the first pig, the straw structure – in this case, the doctor’s support – is not in and of itself enough to prove a Federal or Postal Disability Retirement application. Thus do we move on to the next structure, as the scared little pig who no longer had his or her house, anymore, ran to the second pig for safety and security.

The wooden house: It is perhaps appropriate that the second pig’s abode was made of sticks; for, the pliability of wood can only go so far; and so it is with the second element of a Federal Disability Retirement claim: one’s position description and the essential elements of what one does in the Federal or Postal job. In order to qualify for Federal Disability Retirement benefits, the Federal or Postal employee must, as a result of one’s medical condition(s), be unable to perform one or more of the essential elements of one’s positional duties. What are “essential elements”? You can extrapolate from the official position description, and often what is described in contradistinction to what a person actually does, opens up a cauldron of worms. But, regardless of the differences (often without a distinction), most people can discern and decipher what the essential elements of one’s Federal or Postal position is comprised. As a foundational matter: An Administrator engages in multitasking and performs focus-intensive duties; auditors and budget analysts engage in sustained cognitive-intensive work; Postal workers must use all areas of the anatomy in lifting, pushing, pulling, walking, driving, bending, etc.; Information Technology Specialists must have the focus, concentration and attention to detail; and that is where one should start before analyzing and extracting particular duties from the official position description.

Is it necessary to establish a 1-to-1 ratio between a specific medical condition and a particular essential element? No. Incompatibility and inconsistency are valid bases for having a Federal Disability Retirement application approved. Previously, in other articles, we have discussed the U.S. Merit Systems Protection Board Case, Henderson v. OPM, decided on January 31, 2012 (Docket No. DC-831E-10-0812-I-1), which addresses the issues of direct correspondence of medical condition to an essential element of a position, and how it is not necessary for such a direct causal linkage to be established. That case clearly addresses the issue which often confounds Federal and Postal employees in their quest for Federal Disability Retirement benefits; namely, how to build the bridge between the medical condition and the positional duties, whether Postal or non-Postal Federal. The case of Henderson addressed the two primary approaches to meeting the statutory requirements for Federal OPM Disability Retirement eligibility: (1) showing that the medical condition caused a deficiency in performance, attendance or conduct, and (2) by a showing that the medical condition is incompatible with useful and efficient service or retention in the position. For greater detail of discussion of the Henderson case, the reader should refer to prior articles written by this author.

Once the Federal or Postal applicant has constructed the higher-grade structure, it is then time to go on to the firmest foundation: The brick mansion. Statements of one’s disability, as described and delineated on SF 3112A (“Applicant’s Statement of Disability”), must be carefully constructed, deliberatively detailed, and without the architectural defects which undermine the structural integrity of a solid foundation. Issues of “stress”, “hostile work environments”, collateral litigation encompassing past EEO complaints, settlements with the agency, or an abundance of historical data — all make for interesting Dickensian tragedies, but rarely provide for an effective Federal Disability Retirement application. This is where balance between brevity of words and over-articulation of irrelevancies must be carefully mixed and unnecessary debris removed, to prevent fissures from violating foundational constancy. As the careful bricklayer expertly scrapes away all excess mortar, similarly, too much information can detract from the beauty of the facade, and too little can inadvertently undermine the structural integrity of a Federal Disability Retirement application.

An OPM Disability Retirement application is a symbiosis of the past, present and future, in many ways: the past, because it is a result of prior medical conditions which often have progressed to a point of today; the present, because it represents a reality which must be faced today; and the future, because it is a quest to secure the future, but for today. The first little pig cared too little for the past; for, otherwise, he would have studied well the flimsiness of his abode by studying the past. The second little pig sought only the comfort of today; for, this is evidenced by the minimal adequacy of the structure built. It is only the third little pig who combined to bring the past to the present; the present to the future; and bound all three for a secure and effective Federal Disability Retirement application.

I am a Federal Disability Attorney who represents Federal and Postal workers from all across the United States, 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:

Sincerely,

Robert R. McGill, Esquire

 

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