Federal Disability Retirement under FERS or CSRS: The Applicant’s Statement of Disability

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Some believe that when a change occurs, it is always for the best.  But change comes in many forms – sometimes adding to context, or to the substance; at other times, subtracting, detracting, extracting, etc.  Change should have a rational discourse.  Change without reason, whether intermediate or final, should always be accompanied by an answer to the eternal question:  Why?

                    —  From, The Wisdom of Nakamura

Changes are often necessary—if not to correct a previous mistake, then to perfect that which was previously imperfect.  In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, sometimes a change in a medical diagnosis may require an amendment to the original application; or, perhaps a sequence of medical conditions listed on Standard Form 3112A (Applicant’s Statement of Disability) has undergone a metamorphosis during the 8 – 10 months of having prepared it, and waiting for a decision from the Office of Personnel Management.  In such instances, should a change be implemented?  Can it be implemented?  Is there a difference between “change”, “amendment,” “supplement” and “emphasis”?

Filing for Federal Disability Retirement benefits under FERS or CSRS does not “entitle” one to the benefits.  Rather, one must prove by a preponderance of the evidence that one is “eligible” for the benefit.  The Federal or Postal employee applicant bears the burden of proof by a preponderance of the evidence.  Such a burden – “preponderance of the evidence” – is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.  5 C.F.R. ¶ 1201.56(c) (2).

In submitting an Application for Federal Disability Retirement benefits, there are certain standard forms which must accompany the application.  One such form is SF 3112A – Applicant’s Statement of Disability.  This is the “linchpin” of the entire case – the basis upon which all other forms, documentation, evidence and compendium of supporting constructs must coalesce and coordinate.  It is a simple looking form.  However, as with most things in life, its simplicity betrays the potential complexities which may result unless one is aware (or is it “beware”?) of the multiple unintended consequences which have embroiled and vanquished many Federal and Postal disability retirement applicants in the past.

The Question posed on SF 3112A (after the introductory identifiers of name, date of birth and SSN) appears simple enough:  “Fully describe your disease(s) or injury(ies)”.  The operative (and potentially dangerous) word within the imperative sentence is the very first one:  “Fully”.  For, it is the advisory statement following the imperative which expands upon the word, and which one must take note of:  “We consider only the diseases and/or injuries you discuss in this application.”  Thus, on the Applicant’s Statement of Disability, if one fails to “fully” describe the medical condition, then the Federal or Postal employee who has submitted an Application for Federal Disability Retirement benefits under FERS or CSRS may be precluded from later having a specific disease or injury considered as the basis for approval.  The implicit, significant question which one must therefore ask in preparing and formulating the Applicant’s Statement of Disability, of course, is what does it mean to “fully” describe the medical condition?

The last question in the preceding paragraph often leads Federal or Postal employees preparing and formulating a Federal Disability Retirement application, to submit a laundry-list of medical conditions.  Thus, an applicant’s statement of disability might look like the following:  I suffer from Chronic pain, cervical, lumbar and thoracic pain, degenerative disc disease, Major Depression, fatigue, pain in my joints and wrists, knee pain, swollen fingers, headaches…  But what if the Office of Personnel Management disables the applicant based upon the “headaches”, or upon “swollen fingers” – and a couple of years hence, sends out a medical questionnaire requesting an update on the status of the medical disability for continuation of benefits?  The point cannot be overemphasized:  a laundry-list of medical conditions, delineated in sequential form, even if in order of importance or severity, is not necessarily the most prudent methodology of satisfying the imperative sentence on SF 3112A of “fully” describing one’s medical conditions.

Now, it is true that once one has submitted an application for Federal Disability Retirement, the application as submitted cannot be amended or changed – unless one withdraws the application and re-submits it anew.  Thus, the caveat of precautionary language on SF 3112A (“We consider only the diseases and/or injuries you discuss in this application”) must be seriously considered.  There is a potentially inherent conflict between the imperative to “fully” describe one’s medical conditions, with the additional warning that OPM may disallow consideration of those diseases or injuries which are not “described” as the imperative requires, and the consequential problems which this may pose in the event that a particular medical condition described – often a secondary or minor medical condition – is the one which becomes the basis for granting a Federal Disability Retirement application.  All of this, of course, in the context of the “Public Burden Statement” on the back of SF 3112A which declares:  “We think this form takes an average of 30 minutes per response to complete…”

How does one resolve such a potential conflict?  Again, not by providing a laundry list of medical conditions.  The case law is fairly clear in establishing that, once a Federal Disability Retirement application has been submitted, the Federal or Postal applicant cannot “add” to the list of medical conditions delineated on SF 3112A.  But that is where the key to resolving the whole issue can be found:  There is a distinction to be made between a formal diagnosis and a description of the symptomatologies resulting from the diagnosis.  This is where law and art coalesce, where the technical aspects of identifying a diagnosed medical condition can be fused in coordinated fashion with descriptive adjectives which complement the diagnosed disease or injury.  If, at a later point, an additional medical condition needs to be “added”, one can argue that a supplemental medical report describing an additional diagnosis is not an addition to the previously-completed SF 3112A, but rather merely a supplement to a condition already identified or described in the symptoms.  As such, the addition is not a “change” in the technical sense, but merely a supplemental description of that which was previously discussed and implicit in the original application.  Or, to put it another way, a description of symptoms previously noted may be accentuated if a particular aspect of a medical condition has become prominent during the course of waiting.  If artfully done, this can encompass psychiatric medical conditions where previously only physical medical conditions were apparently “discussed” in the original application.

Because one must prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits, the legal criteria as mandated by statute, expanded by regulatory language, and expounded upon by judicial interpretations both by administrative judges at the Merit Systems Protection Board as well as judges at the U.S. Court of Appeals for the Federal Circuit, it is important to understand “the law”, conform to the requirements of the law, and meet the criteria and burden as set forth by the law.  Laws inherently contain a measure of flexibility.  Language is meant to be confronted, molded and stretched. 

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is the job of the attorney representing the Federal or Postal employee to secure the best possible chance of ascertaining eligibility for Federal Disability Retirement benefits, and to understand and apply the law within the allowable context while maintaining the integrity of language.  Language is by nature malleable and thus open to argumentation.  It is the measure of a lawyer to take the periphery of defined terms, then to expand the boundaries of the very meaning of the predefined terms in their applicability and context. 

To paraphrase the 20th Century philosopher Wittgenstein, when one approaches the flickering light of a campfire, it may be difficult to see where the light ends and darkness engulfs.  That doesn’t mean, however, that there isn’t a campfire.  Similarly, it is the job of the attorney representing the Federal or Postal employee who is applying for Federal Disability Retirement benefits under FERS or CSRS, to determine the amount and extent of firewood needed, in order to expand the periphery and secure the best boundaries possible.  

© 2021 Robert McGill. All rights reserved. This article may not be reproduced without express written consent from Robert McGill.


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.