OPM Disability Retirement: The Pre-planned Life

Planning is part of our culture; from birth, to plan for old age; from the first entrance into a career, to consider the options for retirement funding; from the days of schooling, to determine the course of one’s career; and multiple intermediate pre-planning considerations, often mundane in nature, such as what to eat for dinner, how many children to have, where to live, etc.  Whether animals plan for the day, and to what extent, may be debated; what cannot be disputed is the extent and complexity in comparison to the pre-planning engaged in by Man.

But life rarely follows along the neat and uninterrupted course of a plan determined days, months or years prior; instead, the hiccups of life are what make for interesting interludes of unexpected turns and twists.  The proverbial nest egg may not have developed as quickly; one’s expectations of career goals may not have blossomed; a child may have come unplanned; or a lost puppy may have appeared at one’s doorstep.

Medical conditions are somewhat like those interruptions of interludes; they may not be as pleasant as some other hiccups, but they are realities which people have to deal with.

For Federal and Postal employees who find themselves in a situation where medical conditions prevent them from performing one or more of the essential elements of one’s job, it is important to undertake two preliminary steps:  An assessment of the medical condition and whether it is likely to resolve within a year or less; if not, to investigate and become informed about Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

One of the elements which must be shown is that one’s medical condition will last a minimum of 12 months.  This can normally be easily accomplished by a doctor who can provide a prognosis fairly early on in the process.

And perhaps a third step:  A recognition that lives rarely travel along a pre-planned route, no matter what you were taught to believe, and more than that, that the value of one’s life should not be reflected by veering into the unknown.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Pre and Post

Issues revolving around the initial application stage, during the application stage, and after the approval, are often of equal importance.  This is because the approval of a Federal Disability Retirement application under FERS or CSRS will ensure the financial and economic survival and viability of the Federal or Postal employee.  Thus, in the pre-approval stage of the process, it is often good to engage in some future planning:  How hard will I fight for Social Security Disability?  Will I be getting a part-time job to supplement my income?  Where will I live?  During the process of obtaining disability retirement, there is the long wait, and the ability to remain financially afloat while receiving little or no financial support.  Post-approval, there are issues of the potential for receiving a Medical Questionnaire from the Office of Personnel Management.  Whether the current doctor will continue to be supportive, or will I move and need to find another doctor?  Because getting Federal disability retirement benefits is a life-long process, it is important to get sound legal advice from a competent attorney throughout the process — pre, during, and post process.

Sincerely,

Robert R. McGill, Esquire

OPM’s Medical Questionnaire and the Issue of Accommodations

In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations.

OPM’s Medical Questionnaire

At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence — that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully — is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.

Some basic rules in responding to OPM’s Medical Questionnaire:

Rule #1: Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.

Rule #2: Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it — why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.

Rule #3: Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations — one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.

Finally, Rule #4: Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”

Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.

Second Issue: Accommodations

Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “’subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.

The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.” In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term ‘vacant position’ in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.

I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired — a right — in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future — one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways: (1) view my website at www.FederalDisabilityLawyer.com; (2) email me at federal.lawyer@yahoo.com; or call me at 1-800-990-7932.

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