OPM Disability Retirement: 2018 and beyond

Preparing an effective Federal Disability Retirement application, to be ultimately submitted to the U.S. Office of Personnel Management, is often mistakenly thought to be a straightforward administrative process. The keyword here, of course, is “effective” — as opposed to “ineffective” or even “doomed at the outset.”

What we do not know and what we assume to be true can often come back to bite us.

2018 and beyond may see some upheavals and changes within all sectors of the Federal Government. For the time being, however, whatever the future holds, the present circumstances must take into account the current status of the laws already in place, and that is true of Federal and Postal employees who are considering filing for Federal Disability Retirement benefits under FERS. To that extent, a “return to basics” is always the best first step when considering where to begin. The initial steps in preparing an effective Federal Disability Retirement application starts with “the medical condition.” This recognition is not so easily discernible as one might suppose. Unless a Federal or Postal worker suffers a sudden and traumatic event — i.e., a catastrophic injury, a major organ failure or some such similar onset of debilitating symptoms — the insidious and often incrementally progressive nature of a chronic condition may impact one in such a subtle manner that it is barely recognizable as such. It is like the proverbial frog that sits in a pot of boiling water; at what point does the water temperature rise to a level where harm is acknowledged as a potentiality, or more relevantly, where one acknowledges the objective assessment of the intersection between the outside world and its causal consequence? From the frog’s viewpoint, it may be too late before it can recognize the need to jump out of the pot. What we thus do not want to do, is to emulate the frog.

Perhaps it is a less-than-satisfactory performance review — the first ever. Others may have begun to recognize the deterioration. “Objective” indicators may begin to surface over time: excessive use of Sick Leave and Annual Leave; use of LWOP; initiation of FMLA; and perhaps one’s own Primary Care Physician has taken you aside and said, “You might want to think about changing careers at some point.” That addendum — “at some point” — was likely a kind way of telling you that the critical juncture and departure point has long since passed and you are clinging on desperately to a former shadow of yourself.

Whatever the indicator light that finally attracts your attention, the moment of self-recognition that you have a medical condition, first, and second, that the medical condition is impacting your ability and capacity to perform all of the essential elements of your positional duties with the Federal Agency or the U.S. Postal Service must by necessity come to the fore. Many people make the mistake, however, in thinking that because a Federal or Postal worker suffers from a medical condition, and the medical condition is clearly preventing the Federal or Postal worker from performing one or more of the essential elements of one’s positional duties, that therefore eligibility for Federal Disability Retirement benefits is a “given”. But that life would be so simple and straightforward. For, the difference between an “effective” Federal Disability Retirement application and one that is fraught with self-inflicted problems is often a qualitatively minuscule one — often made in the initial steps while assessing, analyzing and evaluating the first steps in preparing, formulating and filing an effective Federal Disability Retirement application.

There is, to begin with, a wide chasm between “having a medical condition”, on the one hand, and proving that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job. Gathering up and bundling one’s medical records and merely sending them along with the completed SF 3107 and SF 3112 forms is an “ineffective” Federal Disability Retirement application. Yes, the SF 3112C (Physician’s Statement) gives some guidance to the treating doctor as to what needs to be annotated — but when was the last time you saw your doctor spend more than 2 minutes in reading a confusing government form written in a 10-point font and been confident that he or she would cooperate? At the outset, you might as well know whether or not your doctor is going to support you in this complex administrative endeavor, because once you have initiated the process and told everyone at the Federal Agency or the U.S. Postal Service that you are intending to file for Federal Disability Retirement benefits, it may be too late to turn back — at least, from the Agency’s or Postal Service’s perspective.

Federal agencies and the Postal Service are peculiar animals — so long as you are a member of the mythical “team”, you are treated with some nominal semblance of respect and left alone to perform your duties. Once it becomes apparent that you are intent upon breaking the chain of camaraderie and will soon sever your ties and abandon the “mission of the agency” or fail to contribute to the voluminous collection, sorting and distribution of the daily millions of pieces of mail criss-crossing the U.S., your value in the eyes of management suddenly and precipitously drops by astronomical leaps and downward bounds. Thus, bundled into the complexity of preparing and formulating a Federal Disability Retirement application must also consider the timing and telling of whether and when to file. A hint: contacting your Human Resource Office and inquiring about Federal Disability Retirement benefits, or even worse, requesting the packet of forms (SF 3107 series and SF 3112 series) may quickly spread like wildfire throughout your Agency or your Postal Facility. Don’t think that “confidentiality” extends to restricting implied intentions. That is why consulting with an attorney who specializes in Federal Disability Retirement law may be the best initial course of action, if only to ensure that the concept of confidentiality actually means something, and is protected without qualification.

Once the Federal or Postal worker who begins to prepare a FERS Disability Retirement application recognizes the distinction between “having a medical condition” and “proving that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s Federal or Postal job” (refer to 5 U.S.C. Section 8451), then the next logical steps should include gathering the information necessary to meet the burden of proof. But what proof? Obviously such proof must be carefully categorized between “medical” and “legal”, and that which is “primary” as opposed to “secondary”. And to the question: Is the “legal” side of things “proof”, or is it merely argumentation that establishes and reinforces the primary medical documentation? The answer to such a question is somewhat muddled and more complex than one might first presume, as the evolution of case-law and their impact upon a Federal Disability Retirement case has become more complicated over the years. For, in the end, how does one argue the facts of the medical evidence if you don’t know whether or not it meets the legal standard of proof? And if you assume that the U.S. Office of Personnel Management will objectively apply “the law”, as opposed to regurgitating their skewered interpretation of the law, your assumptions will lead you astray.

Take a sampling of the type of language OPM will use in a denial of a Federal Disability Retirement application:

— The medical evidence “does not show that you are incapacitated…”

— There is “no indication in the file that you have been approved for SSDI”

— Your file “does not establish that your medical conditions prevented you from coming to work…”

— Your application lacks “compelling evidence” to qualify for Federal Disability Retirement.

Such language, and other similar statements are extrapolated directly from OPM’s own denial letters, and each of them clearly exceeds the required threshold needed to meet the legal eligibility mandates for entitlement to Federal Disability Retirement benefits. They also give us a window into the mindset of the OPM Specialist in his or her decision-making process, regardless of what “the law” holds. For, “incapacitation” is nowhere near the legal requirement, and the implication that one must be “approved for SSDI” is not stated anywhere in the law. Further, the Federal Disability Retirement applicant does NOT need to show that one’s medical conditions are so severe as to “prevent you from coming to work”. And what about that “compelling” evidence”? Compelling to whom? Such language implies a subjective insinuation, that your evidence must be “compelling” to the OPM Specialist, as opposed to meeting the objective standards of the law. However, such language that implies a need to exceed the legal requirements is systematically utilized in assessing and making determinations upon a Federal Disability Retirement application, and thus the question becomes: How does one counter and preempt such a misguided analysis?

The short answer is that one must constantly “remind” the U.S. Office of Personnel Management as to the compendium of information that is relevant, and this includes not only the medical “facts” of a case, but also the legal precedents that must be made a part of the disability retirement packet submitted. What constitutes “legal proof” as opposed to satisfying the statutory requirement of medical documentation needed have become conflated through years of cases that have set precedents and where prior issues have been resolved in one way or another.

In the end, Federal Disability Retirement requires a proof “by a preponderance of the evidence”, but in what direction and for what issue constitutes the “identification” problem. There are multiple indicators that provides useful hints.

In the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals there reiterated the applicable standard for disability retirement determinations, stating therein that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.” This one statement by the Court of Appeals provides a depth of directions that can be overwhelming for many — for, is it performance, conduct or attendance that is the element to be focused upon, or a combination of two or of all three? Can an “actual” deficiency be established, or will it be better to approach it from a less particularized focus of “inconsistency”? These two approaches constitute the “starting points” of any effective Federal Disability Retirement application, and the U.S. Merit Systems Protection Board has reiterated and recognized the two primary approaches in Henderson v. OPM, decided on January 31, 2012, Docket No. DC-831E-10-0812-I-1, where meeting the statutory requirements for Federal Disability Retirement eligibility is accomplished by (1) showing that the medical condition caused a deficiency in performance, attendance or conduct, or (2) by showing that the medical condition is incompatible with useful and efficient service or retention in the position.

The two approaches are not mutually exclusive, and both can be applied in the same Federal Disability Retirement application. However, as previously stated, in the course of making one’s case, it is prudent to keep in mind the skewered perspective of the U.S. Office of Personnel Management. Whether approaching it from a “particularized” attack (pointing out a specific deficiency with respect to performance, conduct or attendance) or by focusing upon the inconsistency in a more general manner (e.g., narcolepsy is generally thought to be inconsistent with being a Special Agent for a Federal Agency), it is the combination of the medical “facts” as well as the legal “arguments” that must always be emphasized in order to remind OPM of what constitutes meeting the eligibility criteria for an approval.

The law is an ever-changing organism, and 2018 will be no less proof of that trite truism. Whatever changes may be anticipated or presumed for the coming year, the law as it currently holds must still be applied, so long as Congress and the President have not changed the foundation of statutory authority with a single stroke of the pen. And so Parmenides and Heraclitis were and continue to be both “right” — the world around us remains unchanged, and yet must we live with the constancy of upheaval, and 2018 will be no different from the days of ancient philosophers as it is for Federal and Postal employees of today.

I am an OPM Disability Retirement 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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