Federal Disability Retirement under FERS and CSRS: The Unintended Consequence of Situational Disability

July 13, 2010 7:04 AM
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     Animals must be perceptive and watchful, for they live in an unforgiving environment, where the one-dimensional world of life-or-death threatens each step. Watchfulness is not a choice; one needs only to observe the hawk as it searches for the misstep of a rabbit; or of the fox who watches with eager anticipation of an unsuspecting farmer. Ignorance of one’s surroundings is not an option for surviving in the wild. It is only the human who thinks that ignorance is bliss.  

                                                            — from The Philosophy of Existential Dimensions

What one does not know, can indeed harm you.  While the concept of “unintended consequences” as discussed by Adam Smith in The Wealth of Nations was meant to convey positive consequences resulting unintentionally, the fact is that most consequences resulting from a lack of intent or knowledge, can result in harm. In filing for Federal Disability Retirement benefits under FERS or CSRS, it is often the unintentional statement which can devastate a Federal or Postal employee’s disability retirement application.   Whether an unintended statement in a doctor’s notation, or an unintentional reference to a “hostile environment” in the workplace, a Federal or Postal employee who attempts to file for Federal Disability Retirement benefits without understanding the concept of “Situational Disability” does so at the risk of negative unintended consequences.

To qualify for Federal Disability Retirement benefits under FERS or CSRS, one is required to prove, by a preponderance of the evidence, that one meets or exceeds all of the eligibility requirements under the law. The basic evidentiary basis for qualifying for Federal Disability Retirement benefits is to show that (A) a Federal or Postal employee under FERS or CSRS has a medical condition, such that (B) the medical condition prevents him or her from performing one or more of the essential elements of one’s job, and (C)  the medical condition must last for at least twelve (12) months. 

Note that, in the skeletal outline of eligibility criteria as stated above, “causality” is not an element which is essential – even peripherally – to a Federal Disability Retirement application. Yet, in a great many applications filed with the Office of Personnel Management, causality is often focused upon. 

Whether intentionally or not, if the workplace is the source or cause of one’s medical condition(s), it will almost always be included and described, and often to the detriment of the applicant. Such a tendency of an Applicant to describe the “cause” of his or her medical condition, of course, is a natural one. Indeed, in a FECA (Federal Worker’s Comp) case, causality is an important evidentiary element, because in order to qualify for such benefits, one must prove the relationship between the medical condition or injury, and the workplace (whether as an “on-the-job injury, or an occupational disease, etc). In a Federal Disability Retirement case, however, such focal emphasis upon “causality” can result in the unintended consequence of having the Federal Disability Retirement application denied, based upon the fact that it is merely one of “situational disability”.

 “Situational Disability” can arise where the specific workplace situation or environment is not only the “cause” of a medical condition, but the continuing source and enduring explanation for the inability to perform one’s job. Especially in psychiatric medical conditions (i.e., Major Depression, anxiety, panic attacks) – but not necessarily just for psychiatric conditions, for stress-induced physical manifestations or exacerbations of medical conditions can also occur — a specific workplace situation or environment can be the “cause” of one’s medical condition, which then impacts one’s ability to perform the essential elements of one’s job. The simple test as to whether a medical condition is “situational” or not, is to ask the question: Can the Federal or Postal employee – the applicant who is filing for Federal Disability Retirement benefits – work at the same job, performing the similar essential elements of his or her position, in another office, department, or agency? If the answer is “Yes”, then it is in danger of being conceptually defined as “Situational Disability”.

Why is it natural and prevalent for a Federal or Postal employee to inadvertently have his or her Federal Disability Retirement application denied because it is deemed a “situational disability”?  Because it is a natural inclination for an applicant who is preparing a Federal Disability Retirement application, to include in one’s “Statement of Disability” (Standard Form 3112A, both for FERS and CSRS applicants) a “shotgun” approach in describing the narrative of one’s medical conditions. Thus, if a hostile Supervisor, an unpleasant coworker, an unsympathetic agency, or multiple other sources of stress-inducing situations is the “cause”, the “source”, or the exacerbating element for one’s medical conditions, it is natural to include that causal malignancy into one’s Federal Disability Retirement application.

The problem of including such a malignant source, however, is that it can backfire, and result in the unintended consequence of receiving a denial from the Office of Personnel Management in a Federal Disability Retirement case. Especially in cases where an applicant who is preparing a Federal Disability Retirement packet is unrepresented by an attorney, the subject of the disability retirement, and the person who is preparing it, are one and the same. As such, the personal “I” who is preparing the application, is the same person who is describing one’s own medical condition and the environment of one’s workplace. In such a situation, it is natural to believe that by delineating in great detail the “cause” of the medical condition (i.e., the terrible workplace), it will help to explain why one is entitled to Federal Disability Retirement benefits. Nothing could be further from the truth.

As the Merit Systems Protection Board stated in Yoshimoto v. OPM, Docket No. DE-844E-07-I-1 (decided on June 5, 2008), the “cause of the condition is not relevant in determining whether an employee is eligible for disability retirement.” But where medical conditions are discussed in conjunction with one’s interpersonal relationship with a supervisor, or where allegations are made of a “hostile workplace”, the danger arises that a Federal Disability Retirement application may be rejected on grounds that it constitutes a medical condition which is merely “situational”. (See, for example, Marczewski v. OPM, 80 M.S.P.R. 343 (1988), where the Office of Personnel Management argued that the appellant’s medical conditions were “merely situational, resulting from the interpersonal relationship with his supervisor”)

In every context, there is a proper submission. In each story, there are relevant details to describe. References to the interpersonal problems with a supervisor, a description of a hostile workplace, or allegations of retaliation, etc., may be properly delineated in an EEOC C
omplaint, or perhaps in a Civil Rights Lawsuit. Such allegations may even be “true” in a Federal Disability Retirement case, where a medical condition has been precipitated by, exacerbated with, or otherwise induced by wrongful actions by individuals in the workplace. Whether, and how much, to describe and inject in an Applicant’s Statement of Disability (SF 3112A) in filing for Federal Disability Retirement benefits, is another matter altogether.

 The universe of information is an infinite expanse of unending bits; of that larger universe of information, we are asked to extrapolate knowledge which can be useful; and of that useful knowledge, we are then required to discern between that which is harmful, and that which is helpful. Often, the “harmful” knowledge is hidden, and the harm itself results from unintended consequences. 

In filing for Federal Disability Retirement benefits under FERS & CSRS, it is best to obtain an expansive universe of information, and from that, to discern the knowledge which can be applicable in a positive manner, without any harmful unintended consequences.




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About the Author

Attorney Robert R. McGill specializes in Federal Disability Retirement cases helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website.