Conformity is a natural reaction for most individuals. That is not a criticism; rather, it is merely a statement of fact. Thus, if we are given a list of things to do, even if the sequence of A, B & C is randomly selected and illogically mandated, we tend to follow the linear instructions imposed. Take a simple example: A, straighten up your room; B, change the vacuum cleaner bag, C, vacuum the stairs. Now, a moment of pause may have you switch B & C — depending upon a contingency which requires a quick inspection. For, if the vacuum bag is so full as to make further vacuuming ineffective, then the logical sequence would be as stated — to change the bag first, then to vacuum the stairs. But what if the individual has determined that the bag does not need to be changed until the machine is used one more time and, moreover, the stairs to be cleaned are just outside of the bedroom to be “straightened up”, whereas the garbage can to empty the bag would require you to go out into the garage, thus making you climb down the stars and return again up the stairs, etc.? In that event, you may change the sequence and do C before completing B. The question is: How many of us would actually pause and take the time to consider changing the sequence of that which is presented to us?
The Standard Forms which we are presented with in a Federal Disability Retirement application pose a similar challenge. The Standard Form 3112 Series appear in alphabetical sequence: A, B, C, D & E. Remember the opening statement of this article, which is merely a statement of fact: “Conformity is a natural reaction for most individuals”. Thus, the sequence of the forms presented would naturally impose the conformity as offered: Complete SF 3112A, first; then in sequential conformity, B, C & D. But does that make any sense?
Such a question forces one to pause for a moment. Should the Applicant’s Statement of Disability — SF 3112A — be written before the medical evidence is gathered (refer to SF 3112C — Physician’s Statement)? Can the Supervisor’s Statement (SF 3112B) be completed without reference to the medical evidence (SF 3112C) or the Applicant’s Statement of Disability (SF 3112A)?
Of course, to merely alter the sequence for the sake of nonconformity, and then to strictly follow the altered sequence is to engage in a similar imposition of conformity — with just a slight change of re-ordered conformity. The reality is that the various forms should be worked on simultaneously as well as sequentially, and none of the forms should be completed in finalized form without coordinated cross-checking with all other forms.
For, the test of how a Federal Disability Retirement application should be viewed is not prospectively (which is how the normal way of doing things is engaged), but retrospectively — from the viewpoint of the Medical Specialist at the U.S. Office of Personnel Management. From OPM’s viewpoint, the following methodology in denying a Federal Disability Retirement claim is applied:
● Inconsistencies — Do the doctor’s statements, office notes and treatment records support, undermine or otherwise confirm the statement of disability which the applicant has written on SF 3112A?
● Does the Supervisor’s Statement refer to any knowledge about the medical condition, or is he/she completely unaware and, additionally, are there any deficiencies in performance, conduct or attendance?
● Has the doctor provided any opinion concerning the nature, extent or severity of the medical condition? Does the doctor impose any restrictions which impact upon the applicant’s inability to perform all of the essential elements of his or her position description? Or, is the aggregation of the medical condition incompatible or inconsistent with the nature of the positional elements itself? (Refer to Henderson v. OPM,117 M.S.P.R. 313 (2012)
● All of the above aside, the final “hurdle” in the process of obtaining a Federal Disability Retirement under FERS involves the issue of “accommodations” (SF 3112D). Should SF 3112D be completed in the sequence as presented — i.e., second to last? Are the issues inherent in SF 3112D naturally the “last battle” in preparing an effective Federal Disability Retirement application, and what does the law say about this?
This, indeed, is often where the “final bloody battle” is engaged, and is the “Ace of Spades” for OPM. In Bracey v. OPM, 236 F.3d 1356 (Fed. Cir. 2001), the Court there stated that, “consistent with the disability retirement statute, the Rehabilitation Act requires an agency to provide an employee with work in an existing position only if such work is available and the employee is able to perform the essential duties of that position”. The operative concepts which need to be addressed are twofold:
A. Reassignment to an alternate position will be offered by the Federal Agency or the U.S. Postal Service “only if such work is available”, and
B. If the employee “is able to perform the essential duties of that position.”
“Accommodations” is a complicated issue in all Federal Disability Retirement applications. For, not only is the term itself often misconstrued and misunderstood by the Federal Agency’s own Human Resources’ Department, but moreover, it is more often than not mis-applied by the U.S. Office of Personnel Management itself. For, in its very narrow, technical meaning, an apple is an apple only if it tastes like an apple. Is “light duty” an accommodation? Is providing a “Sit-Stand Desk” or “Dragon Software/Voice Recognition Program” an accommodation? If an apple tree falls in the forest and there is no one to witness it, has it fallen at all?
Look at the language in Bracey: An accommodation is something which the Agency does which will “enable the employee to perform the duties of ‘the position’. The term ‘the position’ plainly refers to the employee’s official position. If the term ‘the position’ referred to an ‘accommodated position’ as the government’s argument suggests, the accommodation regulation would be circular: ‘accommodation’ could be achieved by selecting any duties whatsoever, no matter how unrelated to the duties of the employee’s official position, and by declaring those duties to be the duties of the ‘accommodated position.’ That is not a reasonable interpretation of the regulatory requirement that an ‘accommodation’ be ‘an adjustment made to an employee’s job or work environment that enables the employee to perform the duties of the position.’”
And further: “In short, the statutory and regulatory scheme provides two ways for an agency to retain a disabled employee — by assigning the employee to an established vacant position at the same grade and pay, or by accommodating the employee’s disability in a way that enables the employee to perform the duties of his official position”.
OPM was essentially arguing before the Federal Circuit Court of Appeals that any “made-up” position could defeat a Federal Disability Retirement application, but the Bracey Court clearly and bluntly rejected that approach. How the issue came to that point of contention is unstated in the court case itself, but clearly the sequence of the application was an important and integral aspect: Of completing the forms in the sequence of logical compilation in order to achieve the ultimate results, and preparing the application for a successful outcome by anticipating the “final battle” before submission to the U.S. Office of Personnel Management: The battle of words, as always, in characterizing what an “accommodation” means in the narrow legal sense.
Sequence matters when submitting your OPM Disability Retirement Package because structures are built upon previously-constructed foundations in order to prevent the collapse of the entire project. Federal or Postal Disability Retirement applications are no different. How the foundation is built; what preparations by sequential methodology are gathered; how much cross-checking is done; which anticipated and retrospectively-viewed legal citations are argued; all of these matter in the preparatory sequence of the Standard Forms in preparing, formulating and filing an effective Federal Disability Retirement application. For, in the end, conformity should not be about what is presented by the U.S. Office of Personnel Management; rather, conformity should be about what is anticipated, in a retrospective manner, as to what will result in the successful outcome of an effective Federal Disability Retirement application.
I am an OPM Disability Retirement Lawyer who represents Federal and Postal 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:
- View the FERS Disability Retirement website or the U.S. Postal Disability Retirement blog
- Email me at firstname.lastname@example.org
- Call me at 1-800-990-7932
Robert R. McGill, Esquire