Federal Disability Retirement: The Full Arsenal of Weapons

— When the cat had cornered the mouse in the farmer’s barn, the only place which the mouse discovered to hide was behind the stock of the farmer’s double-barrel shotgun leaning against the wall; and when the dog chased the cat later in the week, the cat tried in vain to climb up the length of the same silent shotgun; and when the bewildered cow stampeded towards the irritating bark of the dog, the dog ran with its tail between its hind legs right past the steely double barrels. It was only later in the night, when the fox tried to invade the chicken coop, that the shotgun was picked up – by the farmer, the only one who knew what the shotgun was for, and how to use it.

— Anonymous


When a Federal or Postal Employee decides to file for Federal Disability Retirement benefits, he or she is confronted with a compendium of “Standard Forms” – from SF 3107 (2801 for CSRS employees), to the 3112 series (for both CSRS & FERS employees). The initial reaction in confronting the multiplicity of forms is usually an admixture of anxiety, puzzlement, disbelief, confusion, and concern. Indeed, it is understandable that individuals filing for medical disability retirement will often feel overwhelmed by the need to answer questions which – depending upon what information is provided, and how it is characterized – will determine the outcome of a Federal Disability Retirement application.

Furthermore, while the completion of the Standard Forms themselves comprise an essential element of the Federal Disability Retirement packet, it is merely one element. The forms themselves merely provide:

  • Basic personal and professional information
  • The Applicant’s Statement of disability and a description of how the disability has impacted his or her ability/inability to perform the essential elements of one’s job
  • Supervisor’s Statement – a supervisor’s assessment of the employee’s performance, and any impact seen upon the Agency’s operation and mission
  • The Agency’s statement – whether an accommodation was attempted or even possible; whether reassignment was attempted or even possible; etc.
  • Medical documentation as an attachment, which should support the Applicant’s Statement and rebut any contrary perspective provided by the Agency
  • Addressing of other issues – of spousal survivor annuity, life insurance, health insurance, etc.

Beyond the Standard Forms, however, there is a need by the applicant to recognize that an effective OPM Disability Retirement application is surrounded by a plethora of statutes, case-law holdings (Legal Opinions rendered by Administrative Law Judges at the Merit Systems Protection Board, by the Federal Circuit Court of Appeals, and other legal jurisdictional forums), and persuasive peripheral elements. These comprise the “full arsenal of weapons” which, depending upon each individual case, need to be utilized in the proper tailoring and customization of a particular case, depending upon the unique facts and medical circumstances of the case. Some of the “arsenal of weapons” which can be used, may include the following (and this is by no means an exhaustive list, but a minor sampling):

  • A Social Security Disability determination. In the rare instance when the Social Security Administration renders a decision prior to a FERS or CSRS-Offset Disability Retirement application, what should be done? What legal arguments should be used?
  • If your Agency is contemplating termination, what should you do? Can you, or should you, attempt to influence the basis of the termination?
  • If your Agency has proposed termination, what should you do?
  • If your Agency has already terminated you, but did not delineate any medical basis, should an appeal be filed with the Merit Systems Protection Board?
  • Should an adverse Supervisor’s Statement be contested in any way?
  • Does the Bruner Presumption apply in the case?
  • Even if the Bruner Presumption does not directly apply, should the principles underlying the case of Bruner v. OPM be argued?
  • Does it matter how the Agency completes the SF 3112D?
  • Can medical evidence obtained after termination be used to apply for FERS Disability Retirement benefits under the principles delineated in Reilly v. OPM?
  • What should you do if the Office of Personnel Management tries to diminish your medical evidence based upon the fact that your doctor’s opinion relies upon “subjective” evidence, as opposed to “objective” medical evidence?
  • When is it appropriate to argue the principles espoused in Vanieken-Ryals v. OPM?

These are just a small slice of the larger arsenal of weapons – legal, procedural, and substantive – which can be used, and should be used, when it is appropriate. And appropriateness is determined by the individual tailoring needs of each particular case, based upon the unique facts and circumstances, the medical conditions, the impact of such medical conditions upon the particular kind of job one engages in, etc. This is why an attorney who is experienced in Federal Disability Retirement Law can be of assistance – based upon the Federal Disability Attorney’s experience, legal knowledge, and discretionary judgment as to the needs of each case. Like the mouse, the cat and the dog who knew not what weapon lay in the arsenal of the barn, a Federal Disability Retirement applicant should not enter into the fray without knowing which weapons to use, and how to use them.

For more information, contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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