OPM Disability Retirement: Treatment, Surgery and Medication Regimens

In contemplating preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one needs to always bifurcate issues which are “legal”, “employment-related”, and “medical”, etc.  Of course, issues can easily cross over between neatly-construed, artificial boundaries, such that certain issues contains multiple areas.

For example, there is the question of compliance with medical treatment.  First and foremost, whether it concerns or impacts a Federal or Postal employee — or any employee of any organization — the question of whether an individual is complying with the treatment recommendations of a doctor is one which is, and should be, first and foremost a medical one.

In preparing a Federal Disability Retirement application, however, that same question can indeed cross over into becoming a legal issue concurrently, because non-compliance with certain types of treatment regimens can be a basis for a denial of a Federal Disability Retirement application by the Office of Personnel Management.

As to “which” treatment modalities would be a basis for a denial, in general terms, those treatment modalities which one might construe as “minimal” in nature, certainly qualify.  Thus, compliance with a medication regimen is certainly a basis for a denial in a Federal Disability Retirement application; refusing to undergo a prescribed course of physical therapy may be another.  On the other hand, deciding to forego surgery is normally not a basis for a denial of a Federal Disability Retirement application, if only because of the percentages of success even with surgery are tenuous at best, and even with surgery, there is always the question of whether the Federal or Postal employee would be able to perform all of the essential elements of the job anyway.

Questions of medical treatment compliance should first and always be considered a medical question, and only in a secondary sense, a legal question.  One’s health should be the penultimate concern; the legal consequences, an afterthought.

Keeping one’s priorities in order is always the best approach, whether contemplating filing for Federal Disability Retirement under FERS or CSRS, or not.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Spectrum of Medical Requirements

In considering a Federal Disability Retirement application under FERS or CSRS, a Federal or Postal employee must ask questions beyond the primacy of obtaining the necessary and proper medical care for treatment of one’s own medical condition.  Thus, evidentiary issues must be considered; issues of obtaining proper medical documentation; seeking the active support of a treating doctor, etc.  These are all “non-medical” considerations, which have little to do with the actual treatment and care of one’s medical condition, but have everything to do with preparing, formulating, and filing for Federal Disability Retirement benefits under FERS & CSRS.  

There is a distinction between the two (receiving the necessary medical care and preparing a Federal Disability Retirement application), and it is important to recognize the conceptual distinction, because the former can impact the latter.  For instance, on the spectrum of medical care (or refusal thereof) which can impact a Federal Disability Retirement application, refusal to undergo “facially reasonable medical treatment” can defeat a Federal Disability Retirement application.  

The question, of course, is how to interpret what constitutes “facially reasonable medical care”?  There are certain “obvious” ones, and then others which are not so obvious.  Normally, the Merit Systems Protection Board has held that refusal to undergo invasive surgery is not a bar to being eligible for Federal Disability Retirement benefits; on the other hand, refusing to take prescribed medications can, and often is, a bar to eligibility.  All else fall within the middle of the spectrum of such medical/legal requirements.  

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Failing to Follow “Reasonable Treatment”

In fighting to prove one’s eligibility for Federal Disability Retirement benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor.

Such an argument can prove to be fatal to an applicant’s case, but it is good to know the parameters of what it means to “fail to follow” reasonable medical treatment.  For instance, non-compliance with a medication regimen can be fatal to a case.  Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment.

On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an “estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.”

These are two light-posts on the spectrum of what is deemed “reasonable treatment”.  Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor.  Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess.  What falls in-between these two extremes should always be with the guidance of “reasonableness”, in close consultation with your treating doctor.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement & Treatment Compliance Issues

While the issue of ‘causality’ is not one which often comes up in OPM disability retirement cases (by obvious contrast, of course, is the fact that causality, whether it was caused while working, on the way to work, outside of the parameters of work, etc, is often an issue in OWCP/DOL cases), there are certain cases where such an issue may be important to address. Baker v. OPM, 782 F.2d 993 (Fed. Cir. 1986) is actually a case which continues to remain of interest, in that, there, the Court noted that where obesity had a causal impact upon the appellant’s back pain, and since the appellant failed to follow medical instructions to lose weight, therefore the cause of the back pain was not as a primary and direct result of a medical condition, but rather because of non-compliance of reasonable available corrective or ameliorative action.

Thus, there are certain areas where you will be in danger of having your disability retirement application denied: one such area, where the Merit Systems Protection Board has been fairly consistent, is non-compliance of a prescribed medication regimen. In other areas, however, especially where surgery is recommended but where the percentage of success cannot be easily quantified, there is much more leeway. Disability Retirement is an area of law which encompasses a wide range of complex and potential “legal landmines”, and it is often a good idea to seek the counsel of an experienced attorney to help guide your way.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Workers: Things You Shouldn’t Do When Filing For CSRS or FERS Disability Retirement

First, a quick clarification: I have had periodic calls concerning the time-frame in filing for disability retirement. The Statute of Limitations in filing for disability retirement is one year from the date you are separated from Federal Service — not from the date you were injured, or from the time you stopped working, etc. Next, many Federal and Postal Workers ask me to represent them in obtaining disability retirement at the Second Stage (OPM’s Reconsideration Stage), after having filed without representation. I have no problems with that — indeed, sometimes (though rarely), individuals have such a severe degree of medical disabilities that an attorney is not necessary. For the majority of Federal and Postal Workers, however, representation beginning at the initial stage of a disability retirement application is necessary. If, however, for financial or other reasons (including stubbornness), an individual insists upon filing for disability retirement without a qualified Attorney, the following are a few things which you should NOT do in preparing your application:

Do not become non-compliant in a treatment regimen, medication regimen, or any aspect of a reasonable medical regimen designed to treat the disease or injury. This is a sure way to have your disability retirement application denied. For, when an employee “is unable to render useful and efficient service because that employee fails or refuses to follow or accept normal treatment, it is wholly proper to say that the employee’s disability flows, not from the disease or injury itself (as the statute requires), but from the employee’s voluntary failure or refusal to take the available corrective or ameliorative action.” Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed. Cir. 1986) (A word of caution: this does not mean that all surgeries must be consented to).

Do not ignore the basis of a Notice of Removal. I have previously discussed the importance of obtaining the Bruner Presumption, whenever possible, in a disability retirement case. Beyond getting the Bruner Presumption, however, is the fact that any implication of misconduct or willful failure on the part of the Federal or Postal Employee should always be appealed, if not to have it completely amended, then to at least have such a basis for removal expunged, and instead to allow for the employee to resign, thereby nullifying misconduct as a basis for separation. Never give the Office of Personnel Management an additional reason to deny your disability retirement application.

Do not have your treating doctors send in medical documentation directly to the Agency Personnel Office. Always take charge of your own disability retirement application. Have the doctors send the medical documentation to you, and personally review and inspect each page of your submission for accuracy, relevance, and applicability to your medical condition. Never blindly submit medical documentation to the Office of Personnel Management. Again, never give the Office of Personnel Management an additional reason to deny your disability retirement application. This advice, of course, goes “hand-in-hand” with my policy of never signing the SF 3112C (Physician’s Statement), which often releases all of the medical documentation directly to the Agency.

These are just three fundamental “Do Not” rules in preparing and filing for disability retirement. When a Federal or Postal Employee comes to me at the Reconsideration Stage for legal representation, I find that I must first correct several fundamental errors committed by the applicant. While I can almost always correct the mistakes already made, the damage can only be minimized, and never completely eradicated, because the error is already known to the Office of Personnel Management. Still, I am normally able to convince the Office of Personnel Management to approve the disability retirement application.

In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual’s choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available — knowledge. Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength — and this requires knowledge. Like the Mother Rabbit who cautions her bunnies, do not allow lack of knowledge to be your stumbling block.

My name is Robert R. McGill. I am an attorney who specializes in disability retirement claims for Federal and Postal Employees. If you would like to discuss your particular case, you may contact me at 1-800-990-7932, or email me at federal.lawyer@yahoo.com.