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

CSRS & FERS Disability Retirement: OWCP, Light Duty & Federal Disability Retirement

As I stated in my previous blog, OWCP is not a retirement system. Instead, it is meant to return an injured worker back to productivity with his or her agency. This is done through means of providing for medical treatments; paying the Federal employee temporary total disability benefits during the time of treatment and recuperation; then, if the Federal or Postal employee is unable to return to the former position in full capacity, to offer a “modified position” to the employee.  At each step in the process of OWCP/DOL, the onerous and burdensome hand of the process becomes clear — for, if at any time, the employee refuses to follow the mandates given by OWCP, the real threat of having one’s temporary compensation suddenly terminated is always a possibility. 

Thus, in accepting OWCP benefits, there is a clear trade-off:  tax free compensation for the price of being completely governed by OWCP.  Then, when the modified job offer is given, you have no choice but to accept it, in whatever form, and must be accepted “as is” — otherwise, your temporary total disability payments will be terminated.  Remember, however, that accepting such a position does NOT preclude you from filing for disability retirement benefits, because the case-law governing Federal Disability Retirement has a “safety” feature:  in order to be considered a legally viable “accommodation” under the law, the modified job that is offered and accepted must have been one which was previously in existence, and vacant.  It cannot be your old job slot, modified by a piece of paper prepared by your agency and the Department of Labor.  It must be a true job.

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