Medical Retirement Benefits for US Government Employees: Physicians

Physicians are peculiar animals.  They are here to help; and from their perspective, success is measured in terms of how rarely a patient returns for further care.  The ultimate sentence of failure is to conclude that nothing further can be done for an individual, and one must therefore declare that the patient is permanently disabled.

For the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, such a perspective on the part of the physician is important before approaching the treating doctor with a request for a medical report.  That is why the SF 3112C is such an ineffective vehicle of communication.

Consider this:  SF 3112C is a government-prepared form; it is formulated by Federal bureaucrats; the language merely proposes generic guidelines concerning what is required — without any amendments or consideration of case-law refinements which have been promulgated over the evolution of Federal Disability Retirement laws over these many years.

Perhaps more importantly, however, is the lack of bedside manners in handing to a physician a standard form.  While many physicians themselves lack adequate bedside manners, it is the epitome of bad form to thrust a pre-printed form (no pun intended) under the nose of a physician who is supposed to be treating and taking care of you, and to declaratively order, “Fill this out”.  Even an addendum of “please” will not adequately modify such an affront.

The physician-patient relationship is one based upon communication, knowledge, personal sharing, and a good bit of explaining.  Taking the time to prepare a physician is the least one should do in preparing for an effective Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Implicit v. Explicit

That which is not explicitly stated, may leave room for the listener to infer multiple meanings based upon the implicit statement of the speaker or writer.

Thus, in a Federal Disability Retirement application under FERS or CSRS, filed with and obtained through the U.S. Office of Personnel Management, it is important to state with explicit redundancy those elements which meet the legal criteria for eligibility for Federal Disability Retirement benefits.  X impacts positional element Y.  X may impact positional elements Y or Z.  X will surely prevent Mr. A from performing some of the essential elements of his job.  Of these three statements, which one states unequivocally and explicitly, while the other two allow for inferences which may well result in a denial from the Office of Personnel Management?  Obviously, the answer is the first statement, leaving the subsequent two room for inference and implication.

Remember that the Disability, Reconsideration and Appeals “Specialist” at the U.S. Office of Personnel Management is specifically targeting a Federal Disability Retirement application for any excuse to deny it.  The reviewer will selectively choose any cracks in the aggregate of the disability retirement packet, and where there is room for inference or implication, the language used will be interpreted in the light most favorable to the Office of Personnel Management, to issue a denial in a Federal Disability Retirement case.

Wherever and whenever possible, make explicit that which sounds implicit.  The crack of dawn is a time to get up and get things accomplished; a crack in the meaning and usage of language is merely an excuse for misuse and abuse.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The “Almost” Medical Inability to Perform Termination

Often, Agencies will proceed to propose a removal of a Federal or Postal employee based upon reasons which clearly “imply” one’s medical inability to perform one or more of the essential functions of one’s job, but explicitly, based upon other stated reasons — e.g., “Failure to Maintain a regular work schedule” or “Being Absent Without Official Leave (AWOL)“.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state:  “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under CSRS or FERS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application.  For, that is the ultimate goal:  to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement for Federal and USPS Workers: Tendencies

There are certain tendencies which seem to exhibit themselves on a spectrum of behaviors, and the pattern is fairly common.  As such, it is important to be aware of the natural tendencies of all parties involved when filing for Federal Disability Retirement benefits under FERS or CSRS.  For instance, it is a common tendency for the doctor — Family Doctor, Orthopaedic Surgeon, Neurologist, Psychiatrist, etc. — to avoid having to write a medical narrative report for a Federal Disability Retirement application.

What to do about it?  To try and place the doctor at ease by explaining the process in as direct, simple and concise manner as possible; then to tie the importance of the request for a Medical Narrative Report to the overall treatment plan for the patient — you.  To have an attorney involved can further ease the natural anxiety of a doctor — but it helps to have the client/patient forewarn the doctor as to the role and involvement of the attorney.

Attorneys and doctors are “natural enemies” (i.e., attorneys sue doctors; doctors hate to be sued; ergo, doctors have a natural tendency to dislike lawyers).  If the patient/client, however, approaches the doctor and explains that the lawyer who is representing him or her is there to explain the process, to guide the doctor in the preparation of the entire packet, including giving guidance to the doctor in formulating a medical narrative report, then the tendency towards anxiety and reluctance to assist in a Federal Disability Retirement application can be lessened and overcome.  Tendencies are there to be recognized, then to be adjusted in order to achieve a positive outcome.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Arming the Doctor after Disarming

It is one thing to provide an explanation of the process of filing for Federal Disability Retirement benefits under FERS or CSRS to the treating doctor; that is simply not enough.  Providing an explanation “disarms” the health professional.  While such explanation and helping the doctor to understand the process is certainly helpful, ultimately the treating doctor needs more than information; he or she needs guidance in order to “arm” one’s self with the tools necessary to help the patient. 

Fortunately, most doctors are professional, compassionate, and eager to help.  Writing medical reports are an administrative aspect of the practice of medicine which is not only a headache, but takes the doctor away from the valuable and limited time for actually treating the patient.  It is therefore important for the Federal or Postal employee who is applying for Federal Disability Retirement benefits under FERS or CSRS to “arm” the doctor with the necessary tools needed in order to successfully prepare, formulate and construct a sufficient and effective narrative report in order to “pass muster” with the Office of Personnel Management.  The first and primary rule in helping to prepare the doctor is to always protect and maintain the integrity of the doctor.  Truth in every endeavor, and especially in filing for Federal Disability Retirement benefits under FERS or CSRS, should be the ultimate guiding light.  How that truth is stated, however, is where the guidance, tooling and “arming” comes into play.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Doctor

Out of all of the elements comprising a Federal Disability Retirement application — the various aspects, including medical, personal, impact-statement, statement of disability, Supervisor’s Statement, etc. —  the essence of it all must be coordinated around the core of the case:  the medical narrative report.

That alone has multiple, inherently complicating factors:  Why won’t the surgeon write the report?  Why is it that the Pain Management doctor, or the Internal Medicine doctor, or the Family Physician is the one often most cooperative and willing?  Is the Chiropractor’s opinion sufficient?  Is it helpful?  How detailed must the report be?  How long must you be a patient in order to establish the threshold of having a “longstanding doctor-patient relationship“?  Are medical records in and of themselves sometimes sufficient to obtain Federal Disability Retirement benefits?  Is it sufficient to get a Therapist to do the report, without the Psychiatrist?  Can a therapist alone win a case? Must I undergo a Functional Capacity Evaluation?  Can I use reports from an OWCP Second Opinion doctor?  If my Psychiatrist only sees me for five minutes each time and prescribes the medication, is it necessary for him/her to write a report?  How detailed must the report be?  Is the doctor going to understand, let alone actually read, the SF 3112C?  These are just some of the questions which one is immediately confronted with, in beginning the process of putting together a Federal Disability Retirement application under FERS or CSRS.  It is a complex, overwhelming process.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Family Doctor and the Surgeon

I am often asked whether or not a medical report from the “specialist” will have a greater impact than a family doctor.  Implied in such a question, of course, is a perspective which tends to see the family doctor as somehow “less qualified”, sort of like comparing the technical deficiencies of a “country doctor” as opposed to a “real doctor” — one who works in an emergency room in a large metropolitan hospital.  Perspectives and prejudices have a way of defining judgments, and assumptions, presumptions and long-held beliefs, whether valid or not, often rule our lives. 

How can I answer such questions?  In the course of a Hearing before an Administrative Judge at the Merit Systems Protection Board, I have had family doctors testify who were unbeatable, and certainly overwhelming in his or her expertise and medical knowledge.  The years of experience in having to deal with thousands of patients, and confronting and treating medical conditions of every imaginable sort — and making decisions (including referring patients to “specialists” for concurring or confirming diagnoses and opinions) involving the “whole” patient’s medical condition and treatment — came through with such persuasive force and overwhelming confidence, that it was indeed the “family doctor” or the “country doctor” who ruled the day. 

Similarly, I have had the “specialist” testify in cases, who barely were able to coherently describe the connection between the medical condition and the essential elements of the job.  And, of course, sometimes the opposite is true — good surgeon, mediocre family doctor; mediocre specialist, great country doctor.  As in all things, in Federal Disability Retirement applications under FERS or CSRS, it is not so much that the credentials matter, as the character, experience, and “heart” of the doctor who treats the patient.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Developing a Case

In most cases, the normal process of disability retirement for the First Stage of the process is anywhere from 6 – 8 months; some fall towards the 6-month range; some take longer than the 8-month range.  The difficulty in most cases is that the potential disability applicant/annuitant obviously wants to get through the process as quickly as possible, most often in order to get a sense of security for the future, that he or she will have the certainty of the Federal Disability Retirement annuity.  All of this is understandable. 

The process — of preparing; of submitting; of waiting as it winds through the various Agency channels and finally to Boyers, PA and then to OPM in D.C. — is a process of high anxiety and anticipation.  Sometimes, however, cases must be patiently developed.  By “developed”, I merely mean that, at times, the doctor is not ready to provide the proper medical narrative report, or to state in explicit terms that a person is no longer able to perform one or more of the essential elements of his or her job, and that the medical condition will last for at least one (1) year.  Patience with the doctor as different modalities of treatments are applied, is often crucial in the development of a case.  My involvement in a case, even before it is fully developed, is preferred, only if to guide the client as the medical case develops, or — as is often the case — on issues involving how to respond to an Agency which is just as anxious for the whole process to begin and end, as is the client.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Applicant’s Statement & Essential Elements

When an applicant for FERS & CSRS Federal Disability Retirement benefits begins to craft his or her Applicant’s Statement of Disability, certain foundational questions must be considered before composing the historical, emotional, substantive and impact-descriptive narrative.  For instance, to the legal criteria, To be eligible for Federal Disability Retirement Benefits, one must show that one’s medical conditions prevent one from performing one or more of the essential elements of one’s job — the initial and most foundational question obviously is:  What are the “essential elements” of one’s job? 

Now, that may seem like a simple — even simplistic — question.  One needs only to look at the official position description and pick out the major factors of the position.  If only it were that easy.  For, there are many “implicit” essential elements which are not explicitly stated, and it is often those unspoken, “un – described” elements, which are directly impacted by one’s medical conditions and disabilities, which must be creatively woven into the narrative of one’s disability statement.  Always remember to take care of the “foundational” issues first; thereafter, the narrative can extrapolate from the major factors of the position description.

Sincerely,

Robert R. McGill, Esquire