Federal and Postal Disability Retirement: Persuasive Impact

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is important not to confuse the difference between that which is central in proving one’s Federal Disability Retirement application, from that which is merely of persuasive import.

In some cases, there may be a necessity, for very pragmatic reasons, to deliberately switch the two; but as a general rule, the argument for persuasive documentation should be used as secondary sources of proof.

Often, the choices are limited for the Federal or Postal employee:  either one continues to work at a job where it is clear that performance, attendance, or capability to continue is steadily and progressively deteriorating; or one can simply quit and walk away from the Federal or Postal job without doing anything (not an advisable option); or, one can file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.  That being said, if the Federal or Postal employee takes the third option of Filing for Federal Disability Retirement benefits, then one must necessarily prove one’s case.

In order to prove one’s case, one must have a supportive doctor.

While VA ratings, OWCP Second Opinion doctors’ reports, etc., constitute examples of evidence which may be persuasive, the centrality of one’s case is represented by a narrative report from one’s own treating doctor.  In some cases, when one’s own doctor will not support such a case, one may use the persuasive evidence as the key to proving one’s case, but as a general rule, they should remain as collateral sources of proof.

Remember that “what” is used is important, but sometimes, “how” it is used can be just as important, if not more so.

Sincerely,

Robert R. McGill, Esquire

 

The Physicians and the Substance of a Federal Disability Retirement Case

Ultimately, the essence of any claim, endeavor, vocation or activity possesses a characteristic “essence” of a matter — that which defines itself, reveals its core value, and manifests the substantive content of what X “is” as opposed to the accidental and peripheral appearances which can throw one off from the central enigma of that which we seek to unravel.

That is the defining history of Western Philosophy; it is what Plato began in inquiring about the differences between Forms and appearances; what Aristotle did in rolling his sleeves up and getting down to the serious work of scientifically approaching the world through observation and keen perspective; and in more modern times, it is encapsulated by the work of Heidegger, who viewed every being as an encounter to unmask in the experiential sequel learned from his master, Edmund Husserl and the school of phenomenology.

The History of Philosophy has since been one of loss of stature, as all of the subsciences have taken on their prominent roles and fractured apart from the umbrella of philosophy.  Psychology, Anthropology, Physics, Theology — they have all found and formed their own mouthpieces.

Medicine and the physicians who represent the discipline of the medical community have a unique and enduring perspective; it has now become defined by an approach of pharmacology and surgery, prompting alternative movements of holistic endeavors. But until a time in a distant future which accepts “other” approaches, it is the physician with an “M.D.”, “D.O.”, or other such designation, which will be necessary in the acceptable community of opinions and judgments. Yes, Chiropractic care, Physical Therapists, Nurse Practitioners, Psychologists and LCSWs can help to prove a case; but the central focus of authoritative acceptance still comes primarily from that guy or girl who went to “medical school”.

For the Federal and Postal employee who seeks to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the core of one’s case must be based upon a view towards the examiner, reviewer, or “Administrative Specialist” as designated by OPM, and what that individual will accept as the authoritative basis of a viable Federal Disability Retirement case.  This is a world where the word of the physician is paramount; and those in the communities of subsets can certainly lend authoritative support; but it is always a mistake to confuse the outpost for the headquarters.

In a viable OPM Disability Retirement application, it is important to obtain the opinion and support of that which will provide the essence of authoritative support, to the greatest extent possible. What opinion to seek; how the narrative opinion is characterized; who provides it; and what the substantive content will state — all will make a difference in preparing and formulating a Federal Disability Retirement application, and its proper presentation to the authorities at the U.S. Office of Personnel Management.

While the “enemy” may attack and destroy the perimeters and outposts, until the neurological center of an organism is defeated, all such efforts are destined to fail.

Sincerely,

Robert R. McGill, Esquire

 

CSRS & FERS Medical Disability Retirement: The Treating Doctor

There is efficacy and motivational bias.  Sometimes, unintended consequences result in the coalescence of both, but where the result is unaffected by the underlying reason for acting upon an event.

In OWCP cases, the motivational bias almost always includes the intent of the Department of Labor to try and save money, and to steer the injured worker to undergo treatment (if one can call it that) and oversight with one of “the company” doctors who can quickly declare a person to be healed and ready for return to full-time duty, despite protestations of pain, discomfort and limitation of movement, all to the contrary.

It is no accident that the ever-present Worker’s Comp Nurse who infringes upon the patient-doctor relationship by imposing her presence upon each visit, agrees whole-heartedly with any such assessment of full recovery, and ignores the pleas of the patient/OWCP benefit-recipient.

By contrast, those who are filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, are encouraged to speak with their longstanding treating doctors, as opposed to merely going to a doctor whose motivational bias may stem from the source of one’s payment.

Treating doctors who have a long tenure of doctor-patient relationships have little underlying motivation to do anything but look out for the best interests of the patient.  If Disability Retirement is the best course, then that will be what the treating doctor will support.  It is ultimately the relationship that has been established over the many years, which makes for all the difference.  And that difference is worth its incalculable weight in gold.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement (for US Federal Employees): Administering Treatment versus Administrative Functions

Doctors rarely have any problems with administering treatment based upon clinical encounters and subjective narratives from their patients; yet, when it comes to providing a medical report and performing similar administrative functions, the sudden pause, hesitation, and sometimes outright refusal, is rather puzzling, if not disconcerting.

Such trepidation from the doctor can obviously result in a difficult wall for purposes of preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.

For, much of medical evaluation, diagnosis, prognosis and prescribing of treatment encompasses receipt of subjective responses from the patient:  where the pain is present; the nature and extent of the pain; the history and chronicity of manifested symptoms; even functional capacity evaluations must necessarily be an observation of the subjective actions & reactions of the participant.  Of course, there are often distinguishable “objective” factors — swelling; carcinogenic versus benign tumors; broken bones, etc.

On the other hand, even MRIs and other diagnostic tools reveal only that X exists — not that X results in symptom Y.  An example would be a bulging disc — while the abnormality itself may show up on an MRI, whether the individual experiences any pain from the abnormality may differ from subject to subject.

This is why, despite the willingness of a doctor to treat based upon most factors being “subjective” in nature, it becomes a puzzle why the same doctor shows an unwillingness to write a report stating that, because of the medical conditions for which patient M is being treated, one must necessarily conclude that he or she cannot perform essential elements X, Y and Z of his or her job.

It is the jump from treatment-to-disability-determination which is often problematic for the treating doctor.  All of a sudden, the excuses flow:  “I am not trained to make such determinations”; “There is no objective basis for your pain” (then why have you been treating me for over a decade and prescribing high levels of narcotic pain medications?); “I can’t say whether you can or cannot do your job”; and many other excuses.

The switch from administering treatment, to treating administrative matters, is one fraught with potential obstacles.  How one approaches the treating doctor will often determine whether such obstacles can be overcome — and whether one’s Federal Disability Retirement application can be successfully formulated.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP Doctors, and Others, Etc.

Can a doctor with whom one has been treating, but one which was obtained through the Federal Employees’ Compensation Act, Department of Labor (FECA/DOL), Office of Workers’ Compensation Program (OWCP), be an effective advocate for one’s Disability Retirement application?  Of course.

Often, however, there is a complaint that the “OWCP doctor” is not very responsive to a Federal or Postal employee’s attempt to approach the question of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.  As FERS & CSRS Disability Retirement is based upon proving by a preponderance of the evidence one’s medical inability to perform one or more of the essential elements of one’s job, it is crucial that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits have a supportive doctor.

While the Merit Systems Protection Board’s expanding case-law holdings continue to reinforce the idea that the most effective advocate in a Federal Disability Retirement case is a “treating doctor”, as such, medical reports obtained through 2nd opinion or “referee” consultations, or via filing for Social Security Disability benefits, may have some limitations on their usage; nevertheless, the weapons of arguing that an “independent” source of medical review also found that one could not perform one or more of the essential elements of one’s job, can be an effective substantive argument.

As for the OWCP-treating doctor, sometimes those forms completed by such a doctor will be enough to meet the eligibility requirements for OPM Disability Retirement — but that is an individual assessment based upon the uniqueness of each case.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Supporting the Concept

In preparing, formulating and filing a FERS or CSRS Federal Disability Retirement application, the important first step in the “preparation” phase — or, one might even term it conceptually as the “pre-preparation phase” — is to engage the treating doctor with the conceptual framework of what Federal Disability Retirement entails and encompasses.  

As has been repeated many times previously in other blogs, doctors are not administrators, and ultimately detest the need to annotate, narrate, write reports, etc.  The legal system has forced doctors to keep records, if only for their self-protection in the event of a question of malpractice, and the requirement of keeping office records and notes has had the positive corollary effect of forcing doctors to “think through” the procedural steps of what it is that they are “doing”.  

Requesting the treating doctor to support a Federal Disability Retirement application has the identical positive result of forcing the doctor into an admission that one’s medical condition has come to a crossroads:  prior treatment modalities have not proven to be effective; the chronic and progressively deteriorating nature of the physical or psychiatric condition has shown to be “treatment-resistant”; the time has come to acknowledge that a different mind-set must be embraced — one which includes a period of rest, restorative time, and a stage of recuperation away from the activities which the Federal or Postal employee spends on average 40 – 50% of the time at:  one’s job.  

Speaking to the doctor about his or her support and role in preparing a Federal Disability Retirement application is the first, necessary, and vital step in the preparation, formulation and filing of a Federal Disability Retirement application under either FERS or CSRS.  How best to approach the doctor, the timing, the words and concepts to use, etc., are all part of that preparation.  

If it is time for the Federal or Postal worker to recognize that one’s medical conditions are preventing the Federal or Postal worker from performing one or more of the essential elements of one’s job, it is time to think about pre-preparing the treating doctor.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The “Nice” Doctor

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is first and foremost important to have the support of one’s treating doctor.  By “support” is meant that the treating doctor must be willing to spend the time and effort needed to prepare and present a medical narrative which will not only narrate and delineate the diagnoses and symptoms — but beyond that, to take the time to explain the “why” of the nexus between the patient’s medical conditions and the essential elements of one’s job.  

To this extent, of course, the Federal or Postal Worker’s attorney should be of the utmost assistance — to guide the doctor in order to meet the legal criteria for qualifying for Federal Disability Retirement benefits under FERS or CSRS.  It is never an issue of telling the doctor “what to say” — the integrity of the medical opinion of the doctor should never be violated.  Rather, it is an issue of explaining the elements and legal criteria which need to be addressed.  

In ascertaining the level of support which a doctor is willing to provide, it is simply not enough to establish the factual foundation that the doctor is very “nice”.  Nice doctors aside — whether in conversation, table manners or a general sense that he or she is genuinely an all-around nice person — the question is, Will the doctor spend the time and effort (and yes, it is proper for the doctor to be reasonably compensated for his time and effort) in preparing a narrative report which addresses the legal elements in order to present a case of medical disability to the Office of Personnel Management?  

It is nice to have a nice doctor; it is even nicer to have a nice doctor who will support one’s Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Reluctant Doctor

In preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS, the linchpin (sometimes spelled “lynchpin”) is comprised of a supportive doctor who is willing to provide substantive medical evidence, by a preponderance of the evidence, that a Federal or Postal employee is no longer able to perform one or more of the essential elements of one’s job, and that the medical condition will last a minimum of 12 months.  

Originally, a linchpin referred to a metal fastener which prevented a wheel from becoming separated or dislodged from the axle.  Similar to the conceptual analogy of the “weakest link” in a chain, the idea of viewing a Federal Disability Retirement application in such terms and perspective is to recognize the centrality of a foundation, and how everything else is supported by that foundation.  If the foundation itself is weak, then the chain may snap, and the wheel may fall off the wagon, and everything which is supported by the foundation may come tumbling down.

Such a weak linchpin may be characterized by “The Reluctant Doctor.”   For, ultimately, it will be the treating doctor’s opinion which will provide the primary basis of a Federal Disability Retirement application under FERS or CSRS.  To presume the support of one’s treating doctor may reveal an unfounded sense of confidence.  To declare that, “Of course my doctor will support me.  He’s been my doctor for X number of years,” is to be naive about the psychology of doctors.

Doctors enjoy engaging in the practice of medicine; they abhor the administrative necessities of supporting their patients in preparing a Federal Disability Retirement application.  The Reluctant Doctor is fairly widespread; it is up to the potential applicant, or his/her attorney, to explain the process, beginning with a simple request for an assurance of support from the patient — the applicant who will be filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Patient-Doctor Relationship

In filing a Federal Disability Retirement application with the Office of Personnel Management, it is always preferable (though not an absolute mandate) to have medical reports and records from a “treating” doctor of some tenure.  What constitutes a “treating doctor” is fairly uncontroversial — it means that the report rendering an opinion concerning one’s physical or mental ability to perform all of the essential elements of your job should be prepared by a doctor who has provided medical treatment, and generally has a patient-doctor relationship.  The duration of the tenure which then creates such a “patient-doctor” relationship does not necessarily put a specific time frame upon a doctor.  It can mean anywhere from a month to a decade, in my view.

From the applicant’s perspective, it is important to understand that the person who is considering filing for Federal Disability Retirement benefits has been establishing and fostering that relationship, and this is important to see.  Those many years of going to the doctor, speaking to him or her about the most personal of problems — one’s medical conditions — is part of what creates that special bond identified as a “patient doctor relationship”.  It is a relationship which has been created and fostered through interactive needs, and that relationship should be strong enough to ask the doctor, when the time and need comes to fruition, for a medical report in support of one’s Federal Disability Retirement application.  So, at this point in the issue, as one is contemplating Federal Disability Retirement, does your interaction with your treating doctor constitute a “relationship”, or is it merely an economic exchange of goods and services?

Sincerely,

Robert R. McGill, Esquire

Go to:  Patient-Doctor Relationship (Part II)

Medical Retirement Benefits for Federal & Postal Employees: The Treating Doctor

In a Federal Disability Retirement application under FERS & CSRS, what distinguishes the entire process of proving, by a preponderance of the evidence, that a Federal or Postal employee is unable to perform one or more of the essential elements of one’s job — from other processes, such as Social Security and OWCP — is that the evidentiary weight is placed upon a treating doctor.  There are “other” types of doctors other than treating doctors:  specialists who are referred to for consultative purposes; doctors who specialize in determining functional capacity & evaluate the functional limits of an individual; occupational specialists, etc.  Why a “treating” doctor?  Because we are talking about workers who, over time, find that he or she is no longer able to perform the essential elements of a job and, over that same time, it makes sense that a doctor would be treating that individual.  Disability Retirement is not normally filed as a result of a traumatic accident (although that can happen, also); rather, a Federal or Postal employee normally files a Federal Disability Retirement application because of a condition which develops over time.  That is why the “treating” doctor would be the best source of knowledge and information:  because, through clinical examinations, long-term doctor-patient relationship, the treating doctor can make a long-term assessment based upon all of the facts and circumstances of the patient.

Sincerely,

Robert R. McGill, Esquire