“Process” is important; substance is critical. Which takes priority in a Federal Disability Retirement case?
If a Federal or Postal employee has been separated from Federal Service, and that separation has now been 11 months and 25 days since the date of separation — the “process” of filing a Federal Disability Retirement case must by necessity take priority.
The Statute of Limitations in a Federal Disability Retirement case requires that a potential applicant filing for Federal Disability Retirement benefits must file within one (1) year of being separated from Federal Service. At a minimum, an applicant must file the following:
- SF 3107 — Application for Immediate Retirement (containing and presenting basic information about the applicant);
- Schedules A, B & C (a single page Standard Form informing the U.S. Office of Personnel Management (OPM) about one’s military service and whether a Workers Compensation Claim had been filed); and
- SF 3112A — the Applicant’s Statement of Disability.
These forms are the bare minimum which need to be filed before the expiration of the 12-month/1-year deadline in filing for Federal Disability Retirement benefits under FERS, and they must be filed directly to the U.S. Office of Personnel Management.
Why is “process” in filing a timely Federal Disability Retirement application more important than “substance” when the deadline is calamitously approaching? Because of the obvious: If you file on time, you can always supplement with further “substantive” materials and legal argumentation, whereas, if you don’t file on time (i.e., meet the “process” requirements of a Federal Disability Retirement case), you are forever precluded from trying to argue the substance of your case.
Thus, the choice becomes clear as to why, in such a circumstance where the Statute of Limitations is looming close, “process” must take priority: If you don’t file, you cannot make any substantive arguments on behalf of your “case” at all, because OPM will merely dismiss your untimely filing.
On the other hand, if you file on time, you can always supplement your case with additional information later (with some exceptions). Thus, between the two (process and substance), process must by necessity take priority.
Of course, in ignoring one in favor of the other, multiple and unforeseen problems can occur.
When a Federal or Postal employee has come to a point in his or her medical condition where filing a Federal Disability Retirement application becomes necessary, at least two critical junctures likely have come to fruition.
First, the medical condition (whether physical in nature, or psychiatric, is irrelevant) has advanced to a point where it is impacting one’s ability and capacity to continue working in one’s job with the Federal government or Postal facility, and second, that some manifestation of the impact upon one’s Federal or Postal job is becoming evident.
When such a confluence of critical junctures occurs, the inclination is to immediately attack the Standard Forms, ignoring the process involved — because, as most people tend to do, the “substance” of a case takes precedence. Thus, “filling out” the forms seems to be “doing something” towards filing a Federal Disability Retirement application.
Questions to Ask Before Filing a Federal Disability Retirement Application
Before rushing ahead (“For fools rush in where angels fear to tread”) and quickly filling out the two main series of forms required — the Standard Form 3107 series and the Standard Form 3112 series — it is prudent and wise to ask certain questions which goes to both the process of the case, as well as the substance of the case.
Here are 5 such questions:
- What is the criteria which is applied by OPM in determining a Federal Disability Retirement application?
- How much weight is given to a Supervisor’s Statement (SF 3112B)?
- Must I go through the “Reasonable Accommodation” process with my agency?
- Do my prior Performance Evaluations make a difference?
- What happens if I resign or get terminated before I file?
OPM mixes process and substance questions all of the time, and the above questions are just a few out of the many which should be asked.
Another question which should be asked — even before the 5 outlined above — is the following: “Do I have any deficiencies in performance, conduct or attendance?”
Aside from the medical reports and records submitted, the U.S. Office of Personnel Management will place a significant amount of weight on past performance indicators. OPM’s argument is as follows: If your agency believes that you are doing a great job (i.e., no issues revealed in your performance reviews; no conduct or disciplinary issues; attendance shows a net reserve of sick leave accrued, etc.), what is your best argument to rebut this and to prove that you can no longer do your job? How can you show that the medical condition prevents you from performing your job if your past performance establishes that you have been doing and continue to do your job well?
This is why Question 4 is relevant, because OPM will bring up past performance evaluations to show that you were performing your job well, and further, that because your past performances establish that you did your job well, your medical conditions are irrelevant, and therefore you are not entitled to Federal Disability Retirement benefits.
The question above — of your performance, conduct or attendance — is the “3-part criteria” advanced and applied by OPM. However, there is a “Fourth” criteria which is applied, and which OPM often, conveniently, and (likely) deliberately ignores: That of medical “incompatibility”.
This is where in an MSPB case captioned Henderson v. OPM (a 2012 case) pointed out that an individual would be eligible for Federal Disability Retirement benefits by showing that the medical condition is incompatible with useful and efficient service or retention in the position.“Incompatibility” can be shown by the medical evidence — treatment regimens; the nature and severity of the medical condition and their impact upon one’s ability and capacity for continued employment, etc. These are the “criteria” which a potential applicant should be aware of — part of the process of making a determination before rushing to “fill out” the forms.
The other questions, as well, are important to consider before engaging the process of filing for Federal Disability Retirement benefits.
For example — as to Question #2: How supportive will your supervisor be? Will this be a “surprise” to him or her? Does the supervisor have enough of an awareness to even make a supportive statement?
Question 3 is one which OPM focuses upon, and which intersects with the “process” part of the entire bureaucratic morass.
First — the reason why resigning from a Federal or Postal position prior to submitting one’s Federal Disability Retirement application becomes “problematic” is that, if you resign before submitting your disability retirement application, OPM uses the following argument: How do we know that your Agency couldn’t have accommodated you? Since you didn’t go through the “reasonable accommodation” process, we have no idea whether or not you could have continued to work with some requested accommodations (ignoring the fact that your agency, for months and years, likely disregarded any attempts on your part in seeking any reasonable accommodations).
Furthermore, even if your former agency was cooperative enough to complete SF 3112D (Agency Certification of Reassignment and Accommodation Efforts), and checked the favorable box which acknowledges that the agency could not have accommodated you, OPM simply argues that they do not “agree” with the findings of the Human Resource office. “We do not agree that the medical evidence shows that accommodations were not possible”.
Finally, Question #5: What happens if I resign or get terminated before I file?
Many things — too numerous to answer in full. Here are just some OPM’s arguments:
- “How do we know you couldn’t have been accommodated?”
- “How do we know you couldn’t have been reassigned?”
- “Your medical report is dated after your separation from service, and therefore we cannot consider it.”
- “Your doctor wrote the medical report after your separation from service.”
- “Post-separation medical records are not considered”.
And on and on, ad nauseum — all the while ignoring the law.
Does it matter that OPM is “wrong” on these issues? Does it matter that Reilly v. OPM rebuts OPM’s mis-application of the law concerning post-separation medical evidence?
The Board’s reviewing court, the Federal Circuit Court of Appeals, has held that post-separation evidence of an appellant’s medical condition may be considered in determining eligibility for a disability retirement annuity. Reilly v. Office of Personnel Management, 571 F.3d 1372, 1380-81 (Fed. Cir. 2009); see also Wall v. Office of Personnel Management, 116 M.S.P.R. 188, ¶ 5 (2010),aff’d, 417 F. App’x 952 (Fed. Cir. 2011) (citing Reilly).
The Federal Circuit in Reilly held that post-separation medical evidence can be probative of whether the appellant became disabled while serving as a federal employee “[w]here proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period.” 571 F.3d at 1382.
But, of course, OPM does not take into consideration “the law”. That is, unfortunately, part of the “process” in filing a Federal Disability Retirement application, because in the end, “the process” involves not merely constantly arguing the law, but in making sure that the U.S. Office of Personnel Management remains honest in applying the applicable law. Go figure — you not only have to follow the law itself in filing a Federal Disability Retirement application; in addition, you have to make sure that the approving authority — the U.S. Office of Personnel Management — is also following the law. That, my friend, is what the “process” is all about.