CSRS & FERS Disability Retirement: Summer Doldrums & the Physician’s Statement

I have often pointed out in past blogs and articles that I do not have my clients sign the Physicians Statement (SF 3112C), for multiple and various reasons, not the least of which is that it is a confusing form, and in smaller print than necessary, leaving the impression to the doctor that what is requested is far more complex than what is actually required.  In its place, for my clients, I write a 4 – 5 page letter outlining the type of medical narrative report which I need.  This is the summer months; everyone from OPM representatives to lawyers, to doctors and Federal and Postal employees, take time off to recover from the hard work throughout the rest of the year.  When doctors take off for some “summer fun”, it just means that they have less time to spend on administrative matters — such as writing up a medical narrative report for their patients.  Because of this, it is important to try and simplify the matter as much as possible, and a blanket submission of the SF 3112C without some explanatory guidance, is not the best course of action.  Doctors need guidance, and in this busy world, it is best to streamline the process for them as much as possible.

Sincerely,

Robert R. McGill

CSRS & FERS Disability: Perennial Issues

Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms.  The one which needs to be addressed, again, is the “1-year” issue:  there are actually two (2) questions which keep resurrecting themselves: A.  Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year. 

As to the former:  The statute of limitations begins to toll when a person has been officially separated from Federal Service.  This means that the Agency must take you off of the Federal rolls.  If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun.  On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated.  At that point, you have one (1) year to file your Federal Disability Retirement application. 

As to the latter (Issue “B” herein):  In most cases, it is a prospective issue.  It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year.  In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty.  Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway.  In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Federal Disability Retirement: When the Office of Personnel Management Fails to Apply the Law

Federal disability retirement law is often a frustrating process. On the one hand, for an attorney, it can be a professionally satisfying area of law to practice because the end result — obtaining a benefit for an individual who has shown long years of loyal service to working for the Federal Government; providing a source of income for a person who has been impacted by a medical condition; reaching a successful conclusion to a process: these factors are always satisfying for a practicing attorney. On the other hand — this is an administrative process; it is an area called, “Administrative Law”, and at least at the initial stages of the process, the Attorney handling such a case is dealing with non-attorneys at the Office of Personnel Management.

In other areas of practice, there is often an “equality of competence” (presumably), where attorneys compete or engage in adversarial battle with other attorneys. With Disability Retirement Law, however, the “Disability Specialist” at the Office of Personnel Management often has absolutely no clue as to the current laws governing disability retirement. They simply apply a template and, if a specific case goes outside of that preconceived “template”, then the OPM Representative will often deny the case.

Now, in all fairness, most of the people at OPM have a fair idea of the current law, and more importantly, are open to being informed, educated and persuaded by an attorney that a particular case, with its various wrinkles (and all cases have their unique wrinkles), should be approved because of compliance with a particular statute, a relevant case-law, or a particular regulatory statement. In some particular cases, however, when an OPM representative makes a decision based upon complete ignorance of the prevailing disability retirement laws, one can only throw up one’s hands, and hope that the Reconsideration Specialist will have greater knowledge — or, at the very least, is open to being educated on the proper application of the law.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Agency

I have written on this particular topic in the past, but certain issues seem to be “recurring thematic issues” which need constant vigilance in approaching it in the proper manner. Filing for disability retirement requires an affirmation of two foundational hurdles: (1) acknowledgment and acceptance that one has reached a point in one’s life that he/she can no longer perform one or more of the essential elements of one’s job.  This is the “psychological hurdle” which must be overcome.  And, (2) dealing with the Agency — trying to get the Agency to be “on your side” or, short of that, to render any potential agency action to become irrelevant or inconsequential. 

As to the first hurdle, the Federal employee must always remember that filing for disability retirement is not a “shameful” thing — it is a pragmatic business decision:  No longer a good “fit” for one’s job, it is a benefit which one has had as part of the “employment package” that one accepted when one became a Federal employee.  Remember that, in the private sector, an employee may get a greater salary compensation package; in the Federal government, the employment package includes more than salary:  it includes health insurance, life insurance, disability retirement benefits, annual & sick leave, etc.  Filing for disability retirement is simply part of that compensation package.  As to the second, once an employee decides to file for disability retirement, it is important to try and convince the Agency that any adverse actions contemplated (putting you on a PIP; suspension actions; negative performance ratings; contemplated removal actions, etc.) will be vigorously contested — unless it is removal based upon a medical inability to perform one’s job.   Hurdles often arise through inaction and fear; this is your life; take the affirmative road, and begin tackling the issues “head-on”.  The time to file for disability retirement is now — not tomorrow.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Physician II

This blog is written in response to a question posed: in the event that an individual is unable to have a medical report written by a treating physician for circumstances beyond his or her control (i.e., such as death of a treating physician; uncooperativeness of a doctor; need to move to a different locality and need to switch to another doctor for whatever reason, etc.), would or can a physician’s medical narrative report written by a doctor of “short tenure” still be effective? The answer is, of course, as with all legal questions, “It Depends”.

Think about it this way: Disability retirement has to do with proving that, because of a medical condition, an employee of the Federal Government is no longer able to perform one or more of the essential elements of his/her job. This simple statement, when broken down, actually has a number of limitless components: What is the job? What are the specific elements? What are the medical conditions? What are the symptoms? How do the symptoms impact the person? Does it require medications? Does it require surgery? Are there other treatment modalities? What specific symptoms impact which specific job elements? And on and on.

Thus, these questions and the answers to such questions can normally be answered only by a treating physician — one who has, over the course of a long tenure of treatment, come to intimately know the patient. At the same time, think of the following issue: A doctor whose primary source of income being to write up “disability determinations” for individuals, and whose name repetitively appears in the Office of Personnel Management — that doctor’s reputation will quickly become questioned. The issue of an effective medical narrative has an inherent component: The credibility of the writer (the doctor), and credibility is usually determined by the tenure of the patient-doctor relationship. Are there exceptions? Absolutely. As with everything else in life, credibility can always be established with the truth — for instance, if a recent change in doctors occurred because of a move, the doctor can simply state that fact, refer to prior medical records reviewed, and move on to the substance of the opinion. Alas, credibility is what always counts.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Reconsideration Stage

Alas, a batch of decisions has obviously been sent out to many disability retirement applicants in the last couple of weeks, because I have gotten many calls from those who attempted to try and obtain disability retirement benefits without legal representation.  In reviewing the denial decision from the Office of Personnel Management, many who have called have observed some rather amusing things, such as:  “It seems like most of the decision is just boilerplate language”; “There were so many typos and grammatical errors in the decision”; “The OPM specialist referred to a doctor whom I never treated with”; “The decision said that I suffered from medical condition X, which I never claimed!”   “To err is human…” is a true enough adage; but to point out the mistakes of an OPM decision for the sake of pointing out the mistakes, is a pointless exercise.

Do not fret; yes, much of the language of a decision is indeed boilerplate; OPM representatives are human, and do indeed make mistakes, and insert names of doctors and medical conditions which are not part of an applicant’s narrative; and other mistakes as well.  But don’t overlook the obvious by fuming about such mistakes:  if your disability application was denied, you need to take the decision seriously, identify the substantive issues which were the primary basis for the denial; ignore the tangential errors made; then proceed to address the concerns brought to light by the Office of Personnel Management.  Time is of the essence, and those 30 days to file for reconsideration, and the additional 30 days given to obtain further medical documentation, come and go quickly.  Don’t fume about irrelevant details; focus upon strategizing a substantive approach to getting your disability retirement application reconsidered, and approved.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part III

What if an SSA decision letter is not immediately forthcoming, or does not address the same medical conditions as that applied for in one’s disability retirement application? In such a circumstance, the best argument that can be put forth is to show the Office of Personnel Management that the application submitted to the Social Security Administration is essentially identical with the application for Federal Disability Retirement benefits submitted with OPM; then, to make the argument by analogy that where two applications are essentially identical, and where the higher standard of eligibility required (“total disability” — per SSA) has resulted in an approval, then the law must mandate that a lower standard of eligibility required (disability from being able to perform one or more of the essential elements of one’s particular job — FERS & CSRS) be by analogy and by logical consistency, result in an approval.

In submitting this argument, it is often helpful to submit a copy of the application/questionnaire filled out for SSA, and point out the identical nature of the medical conditions claimed, along with proof of approval by SSA.  Finally, it is important to refer to particular case-law citations to reinforce such arguments — but, alas, as to this latter point, it is best to obtain the services of an attorney who is experienced in Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Reconsideration Stage

Sometimes, restraint is the better part of a response, as opposed to immediately responding. If an applicant’s disability retirement is denied at the initial stage of the process, an individual has thirty (30) days within which to file a Request for Reconsideration.

Upon filing such a request, however, the requestor then only has thirty (30) days to submit additional medical documentation to support the reconsideration request. Thus, take the following scenario: A person receives a denial on day 1; he files a Request for Reconsideration on day 2; he has until day 32 to file supporting medical documentation. If, on the other hand, the requestor had waited until day 25 to request reconsideration (while, in the meantime, on Day 2, he had written to the doctor for additional input/response/records, etc.), then the individual essentially has 45 days to make his case, as opposed to 32 days.

When dealing with doctors, it is often a pragmatic methodology to do it this way, because doctors rarely respond within 30 days. Thus, it is wiser to refrain from responding immediately; it is sometimes difficult to show restraint, because one’s natural impulse is to quickly file a request for reconsideration. For pragmatic reasons, it is almost always better to wait.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: OPM's Methodology

When the Office of Personnel Management (OPM) approves a federal disability retirement application, a separate page from the approval letter will often be attached, which states the medical basis upon which the disability retirement application was approved. The separate page will often state something to the effect of: “You submitted an application for disability retirement based upon medical conditions, A, B, C & D; however, your application was approved for medical condition B only.”

The concern here, of course, is that if you are later selected to answer an OPM Medical Questionnaire asking you to re-establish your medical disability for continuation of your disability annuity some years later, that you make certain that you answer such a Medical Questionnaire based upon that very medical condition upon which you were approved. This is obviously important. Some have questioned whether or not you can appeal the approval letter based upon the fact that you believe OPM should have approved you based upon a different medical condition. In my view, this is not an appealable issue, and if you question OPM as to whether they should have considered you disabled based upon another medical condition, you may be in greater danger by OPM reversing themselves based upon a re-review of your case. It is best to leave “well enough alone”. Accept the approval letter based upon the identified medical condition, and inform your treating doctor that you may need his input in the future — to address that very medical condition for which you were approved.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Connecting the Dots

Care at every step of the way in preparing an OPM disability retirement application is the key to winning. The metaphorical “dots” that need to be created and connected, will ensure that each aspect of a disability retirement claim is not seen as independent entities, but a part of a larger whole.

When an individual is unrepresented, there is a tendency in filling out the multiple forms that each form is a separate piece of information. That is an incorrect approach to take. What results from such an approach is why certain cases end up at the Merit Systems Protection Board, where the Board has to figure out whether they can accept a medical condition that the applicant failed to list or identify in the original application; or whether the connection to an essential job element was properly made.

While it is true that the Board engages in “de novo” consideration of a disability retirement eligibility issue, their jurisdiction is nevertheless limited by the substantive conditions which are identified in the original application. Thus, for instance, in writing up the Applicant’s Statement of Disability, it is wise to coordinate it by reviewing the medical documentation; when writing up the impact of the medical condition upon the essential elements of one’s job, it is wise to concurrently review one’s official job description. While preparing a Federal Disability Retirement application in a disjointed, independent approach, you are in danger of missing an essential dot; by seeing the inter-dependency of each part of the application, you stand a greater chance of not having to go before the MSPB to test whether they can even listen to your case. Disability retirement applications must be approached in this “wholistic” methodology; that is ultimately the “winning” approach, where all of the dots have been connected.

Sincerely,

Robert R. McGill, Esquire