Medical Retirement for Federal Workers: Agency Independence

Each agency is tooled with a statutory mandate as to its mission and purpose, and from the origination of the statutory mandate, Federal Regulations and policies are formulated.  The independence of each agency within the Federal Government results in the anomaly of a patchwork of Federal Agencies, few of which are coordinated in their efforts or purposes.  

Conceptually, this is thought to be a good idea — precisely because by preserving the independence of each agency, it can singularly focus upon the mandated purpose and goal — and better accomplish its “mission”.  But the flip-side to the positive consequences of such conceptual formulation is that there is often an overlap between missions, and where the logical result of one action should almost automatically (logically) result in another, such is not the case because of the wall of separation between agencies, preserving their independence from each other.  

In Federal Disability Retirement issues, one would think that where a stricter standard of eligibility is imposed in one agency (e.g., the Social Security Administration for disability determinations), an approval based upon that stricter standard should automatically result in an approval by the Office of Personnel Management for purposes of evaluating and deciding upon a Federal Disability Retirement application under FERS or CSRS.  

Such is not the case, however.  

Hypothetically, it is possible to conceptualize a case where a Federal or Postal employee is deemed “totally disabled” by a doctor, but still be able to perform all of the essential elements of one’s Federal or Postal job.  Conversely, it is possible to think of a case where an individual is no longer able to perform one or more of the essential elements of one’s job (FERS or CSRS Disability Retirement) and yet not be considered “totally disabled” (SSDI).  The latter, of course, happens all the time; the former continues to occur — although, to actually come up with a true case involves mental gymnastics which exists only in the world of myths and language-games.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: FERS & SSDI Filing

At some point in the process of filing for Federal Disability Retirement benefits under FERS (CSRS is exempted from this particular aspect), the Federal or Postal employee must file for Social Security Disability Insurance (SSDI) benefits.  FERS employees are under the Social Security System, and the reason behind the requirement of filing is to see whether or not the Federal or Postal employee will concurrently be eligible for Social Security Disability benefits.  

Most Federal and Postal employees are not eligible for Social Security Disability benefits, because the higher standard of “total disability” does not apply to the Federal or Postal employee who is filing under FERS, which has a lower standard of being unable to, because of a medical condition, perform one or more of the essential elements of one’s job.  

The requirement to file for SSDI under FERS is one which must be satisfied at or prior to the time of an approval by the Office of Personnel Management.  It is not, as many Human Resources Departments of various agencies will erroneously inform you, a precondition to filing for FERS Disability Retirement benefits. The only requirement which must be satisfied is that, at or prior to the time of an approval of a Federal Disability Retirement application issued by the Office of Personnel Management, a receipt showing that one has filed for SSDI benefits must be presented to OPM before OPM will process the approved Federal Disability Retirement benefits under FERS.  This is to ensure that, prior to payments being issued, it has been determined that no offsets with SSDI will be necessary.  

Again, at or time of the approval of a Federal Disability Retirement claim, is the requirement of presenting a receipt showing that a Federal or Postal employee has filed for Social Security Disability benefits.  It is NOT a precondition of filing for Federal Disability Retirement benefits with the Office of Personnel Management.  It does NOT have to be done sequentially — and this is where Agencies misinform Federal and Postal employees.  One does not have to file for, let alone get approved for, Social Security Disability benefits prior to filing for FERS disability retirement.  I don’t know how much clearer I can state this fact.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Passionate Doctor

The doctor who is most supportive of an OPM Disability Retirement application under FERS or CSRS is often the one who understands the “fine print” of what it means to be “disabled” under FERS or CSRS.  That is precisely why the Standard Form 3112C (Physician’s Statement) is often a harmful form, rather than a helpful form.

There are other reasons why the form should never be signed or submitted, but it is enough that it not only tends to confuse the physician, but also does not properly explain to the treating physician the criteria and the underlying meaning of what is necessary to qualify for OPM Disability Retirement benefits.

Generally speaking, doctors are not very passionate about turning in their patients over to the gristmill of the disabled, thinking that putting a person out to pasture is not only medically unnecessary, but ultimately detrimental to the psychological and physical well-being of a patient.

But when it is properly explained to the doctor, in easy and understandable terms, what and why the benefit of Federal Disability Retirement under FERS and CSRS exists, and to inform the doctor of the benefit to the patient, then it is quite possible to have not only the technical support of the doctor, but more importantly, to garner the passionate support of the doctor as well.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Patient/Applicant

Before even thinking about starting the process of filing for Federal Disability Retirement under FERS or CSRS, it is important for the patient/applicant to approach his or her doctor and get an initial commitment of support. For, ultimately, the most essential lynchpin of a disability retirement application hangs on the support of a doctor — from the first and initial stage, all the way to the Merit Systems Protection Board (where live telephone testimony may be necessary).

The “patient” needs to approach the doctor with sensitivity. It is probably not even a good idea to talk about anything beyond the first stage of the process — instead, the focus should be about how “support” for a disability retirement application is actually part of the rehabilitation and healing process of medical treatment. For, ultimately, a disability annuitant under FERS or CSRS is not asking to be “totally disabled” by the doctor (and, indeed, most doctors do not want to release their patients into the retirement “pasture” of full disability); rather, it is simply a medical support of reasoning that a particular patient is no longer a “good fit” for a particular kind of job. Don’t scare the doctor off with a view of the “long process”; rather, the initial commitment is all that is needed — for the first stage of the process.

Sincerely,

Robert R. McGill, Esquire

OPM Decisions of Denial in FERS & CSRS Disability Retirement Case

There are two elements: competency/knowledge, on the one hand, and authority/power on the other. When the two come together, we then have the combination resulting in a reasoned decision. It is indisputable that an Agency has the authority and power to make administrative decisions. On the other hand, if the Agency makes a decision without the proper competency or knowledge, then it can become a problem.

In reviewing a denial letter from the Office of Personnel Management in disability retirement cases, what is most disturbing are the following: First, 90% of the denial letter is based upon a computer template. The references to dates, medical reports & records reviewed, etc., comprise the remainder of the 10%.

Now, that is not to complain that OPM should or must “reinvent the wheel” each time it makes a decision — indeed, the fact that much of the decision is boilerplate, template language is not that disturbing. What is, disturbing, however, is when — under the pretense of competency and knowledge, it makes blatant mis-statements of the law.

Some of the mis-statements are: “The medical documentation does not show that you are totally disabled from performing your job.” There is no requirement under the law that a person needs to be “totally disabled”. Or: “We are unable to make a determination because of the lack of objective medical evidence.” Medical evidence does not need to be “objective” as opposed to a doctor’s reasoned medical opinions. Or: “Fibromyalgia is a condition which waxes and wanes.” OPM is not a medical facility and has no business making medical determinations or declarations.

The authority and power of an Agency must always be used in the context of competency and knowledge, and the Office of Personnel Management must make its decisions based upon the prevailing case laws, statutes and regulations which govern it. It is the job of a disability retirement attorney to point out such misstatements of law.

Sincerely,

Robert R. McGill, Esquire