FERS & CSRS Disability Retirement for Federal and USPS Workers: Communication Skills

The ability to communicate involves a complex process:  the capacity to identify and understand what needs to be communicated and for what purpose; retrieval of information and tools of communication from one’s storehouse and warehouse of knowledge; the proper choices to be made in gathering not only the substance of thoughts to be conveyed, but the sequence in which to purvey; editing and last minute self-censorship, as well as its corollary, embellishment of thought, in order to effectively delineate the verbal or written response; and all in an instant of a neurocognitive response.

Mishaps occur; wrong choices of words and combinations of conceptual constructs often become verbalized; and while retractions, apologies and declarations of regret can somewhat ameliorate such blunders, there is often the suspicion that what was stated was and continues to be the true intention and thoughts of the individual who spoke or conveyed them.

For Federal and Postal employees who are considering preparing a Federal Disability Retirement application through the U.S. Office of Personnel Management, whether under FERS or CSRS, the potential consequences of conveying the wrong thought, information or conceptual construct can result in a denial of a Federal Disability Retirement application.  That is why it is often necessary to hire an attorney experienced in identifying the proper methodology of information to be conveyed and delineated.

Real life consequences can result from a bureaucratic process such as Federal Disability Retirement.  Unlike family gatherings where mere words are spoken, an application for Federal Disability Retirement benefits cannot be repaired with a simple statement of apology; for, that which leaves the mouth or the written pen, is often the sword which slays the beast.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Non-nexus

Meeting an adequacy test may constitute sufficiency for some purposes, but not for others.  Thus, it may be enough in completing an FMLA form to have a diagnosis, along with answers to other questions on WH-380-E.  But mere identification of a medical condition via a diagnosis, along with a description of symptomatologies will not be enough to meet the sufficiency test in a Federal Disability Retirement application.

People often assume that having a medical condition in and of itself sufficiently explains the severity of one’s condition, and any implied “blank spaces” can be filled in by the mere existence of such a medical condition.  But Federal Disability Retirement, whether under FERS or CSRS, filed through, reviewed by, and approved or disapproved by the U.S. Office of Personnel Management, must be proven by a preponderance of the evidence that the medical condition itself prevents the Federal or Postal employee from performing one or more of the essential elements of one’s positional duties.

As such, the identification and description of a medical condition fails to comply with the adequacy standards in proving eligibility for Federal Disability Retirement benefits.  One must establish, through the conduit of a medical professional, the “nexus” or “connection” between one’s identified medical condition and the inability to perform one or more of the essential elements of one’s job.

The weight of the proof is upon the Federal or Postal applicant.

The foundation of such evidence begins with the identified medical condition, but in and of itself, it is a non-nexus — until it is squarely placed in the context of one’s official position and the duties required by one’s duties.  Thus, the non-nexus become the nexus-point when combined with the identification and description of one’s positional duties.

It is this realization of the step-by-step sequence of proof which constitutes adequacy and sufficiency of evidence, and one of which the Federal or Postal applicant for OPM Disability Retirement benefits must be aware.

Sincerely,

Robert R. McGill, Esquire

Diagnosed medical conditions v. symptoms

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, the medical reports and treatment notes, office notes, etc., will often bifurcate and conceptually distinguish between a “diagnosis” of a medical condition, and the description of “symptoms” which the patient experiences.

Thus, as a simplified example, on a physical level, one might have the diagnosis of “Shoulder Impingement Syndrome” or “Rotator Cuff Tendonitis” in a specific category in a medical report under “Diagnosis”, but in a narrative paragraph discussing the history of the symptoms manifested by the individual, there may be a reference to “chronic pain”, or “radiating pain”.  Similarly, in psychiatric cases, one might be diagnosed with “Major Depressive Disorder” or “Generalized Anxiety Disorder“, without being officially diagnosed with “Panic Disorder” or “Agoraphobia”, but in a discussion concerning the Federal Employee’s symptomatologies, there may be a reference to having “panic attacks” or being fearful of leaving the house or going out into the public.

The conceptual bifurcation between “diagnosis” and “symptoms”, however, may (and perhaps should) be carefully brought together in completing the Applicant’s Statement of Disability.  Thus, while “pain”, “chronic pain”, “radiating pain”, etc., may not officially qualify as the officially diagnosed medical condition in a medical report, in preparing and formulating an Application for Federal Disability Retirement benefits, it is important to interweave such symptoms if they are a prominent part of one’s medical conditions.  Similarly, “Panic Attacks”, even if merely described as a symptom, may be an important part — if not the “essence” of a psychiatric condition — of one’s medical condition, and it is important to include it as part of the diagnosis.  For, when an approval is granted from the Office of Personnel Management, the identified medical diagnosis should, if at all possible, include the most debilitating of medical conditions.

That which is conceptually distinguished on a medical report need not necessarily dictate what is described and delineated on one’s Application for Disability Retirement.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Distinguishing between Diagnoses and Symptomatologies

In preparing, formulating and filing a Federal Disability Retirement application with the Office of Personnel Management, whether under FERS (Federal Employee’s Retirement System) or CSRS (Civil Service Retirement System), in preparing and formulating the Applicant’s Statement of Disability on Standard Form 3112A, it is important to distinguish between the medical conditions which are diagnosed, from the symptoms which are experienced by the Federal or Postal employee.  The focus is often upon the latter (the symptoms) as opposed to the former (the officially diagnosed medical conditions), as it should be because of the nature of the requirements in proving a Federal Disability Retirement case with the Office of Personnel Management.

By that is meant the following: Because one must prove by a preponderance of the evidence that one is eligible and entitled to Federal Disability Retirement benefits from OPM, by exhibiting a nexus between one’s medical conditions and one’s medical inability to perform one or more of the essential elements of one’s job, the descriptive analysis of such bridging between one’s medical condition and the impact upon one’s ability/inability to perform the essential elements of one’s particular job, is quite naturally focused upon the symptomatologies which one experiences.

The blurring of the lines between the “official” medical condition as itemized in a list of diagnoses, as opposed to the descriptive delineation of the exhibited symptoms, or the symptoms which are subjectively experienced and (often) correlated by objective radiological reports, is a natural occurrence. Often, the two are (and should be) deliberately intermingled in the narrative description of the Applicant’s Statement of Disability. However, one should always write the narrative portion of the SF 3112A with the view towards the future potential issues which may arise: that of being “disabled” for a specifically-identified medical condition.

Sometimes the OPM Representative will specifically identify a medical condition; sometimes, no such identification will occur. Then, there are times when the lines between “diagnosis” and “symptoms” naturally crosses — as in, “Chronic Pain Syndrome” as distinguished from “chronic pain”. Blurring the lines in a discussion is expected and should be applied in formulating one’s Applicant’s Statement of Disability; but such blurring should occur with deliberation and purpose, and not just because one does not recognize the distinction between the two.

As with everything in life, the consequences of doing something by accident are quite different from that which results from a purposive and deliberate action.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The “Mixed Case”

The “Grab-bag” approach of annotating every medical condition on an Application for Federal Disability Retirement should be distinguished and differentiated from a “Mixed-Case” approach.  The former contains some unintended consequences (i.e., of being approved for a minor medical condition), while the latter is a formulation of multiple medical conditions, any one of which may be a basis for a Federal Disability Retirement application, but the combination of which will strengthen the case as a whole. 

By “Mixed-Case” does not necessarily include a mixture of psychiatric and physical conditions (although it might); rather, the conceptual term which is used here is meant to be a compendium of the primary medical conditions from which a Federal or Postal worker suffers, along with a descriptive narrative of the symptoms which are manifested. 

By preparing, formulating and completing an Applicant’s Statement of Disability (SF 3112A) in this manner, it satisfies the concerns which lead to the “Grab-bag” approach, but prevents the danger of having a Federal Disability Retirement application approved based upon a “minor” medical condition, by conceptually differentiating between diagnosed medical conditions v. symptoms, while at the same time including all of the medical conditions relevant to one’s Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Medical v. Legal

Issues concerning Federal Disability Retirement applications under FERS or CSRS, both for Federal and Postal employees, rarely “conflict” with the goal of obtaining the proper medical care for a medical condition which one suffers from.  First and foremost, one should seek to obtain the proper medical care, and undergo all of the appropriate treatment modalities necessary to take care of the medical condition. 

If that medical condition — despite treatment, intervention, medication regimens, etc. — fails to allow for recovery sufficient to return to a level of functionality such that the Federal or Postal Worker can continue to perform all of the essential elements of one’s job, then one should certainly consider preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS. 

Throughout the process, however, the primary focus should always be upon obtaining the proper medical care.  Logically, the Merit Systems Protection Board has held in various Federal Disability Retirement cases that where such treatment modalities as a medication regimen has been refused, then such refusal may be a basis for denial of a Federal Disability Retirement application.  Why would this be?  The reasoning is that there is an intervening cause for the continuation of the medical condition which prevents one from performing one or more of the essential elements of one’s job — not the medical condition, but rather the refusal to follow a prescribed course of medical treatment. 

Sometimes, however, failing to follow a prescribed medication regimen may not be an outright “refusal”, but rather a recognition on the part of the Federal or Postal employee that taking such medications while working will further impede one’s ability to perform the essential elements of one’s job.  This is where an intersection between the Medical and the Legal can “conflict”.  The best thing to do in such a circumstance, of course, is to consult with the treating doctor and explain the potential conflict.  There may be no resolution, but it is always best to have such attempts annotated so that it can be “proven” later on, if needed.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Office Notes (Continued…)

The Office of Personnel Management has every right to establish a consistency of medical treatment and opinions rendered on the part of the doctor, the specialist, the medical facility, etc.  One of the reasons why Federal Disability Retirement benefits are (in great part) determined by the opinion of the “treating doctor”, as opposed to a determination made by a medical doctor who makes such disability determinations but is not the applicant’s “treating doctor”, is that such a determination (in the eyes of Federal Disability Retirement laws, statutes, MSPB case laws, etc.) can best be rendered by a medical specialist who has a long-standing relationship with the patient/applicant, over a long period of time, to determine the extent, severity, chronicity, etc., of the medical condition claimed.  

With this in mind, there often arises a conflict of sorts:  On the one hand, most people who are attending to their medical needs, are not thinking in terms of “getting Federal Disability Retirement benefits” during the time of treatment.  The critical point of when the line becomes drawn, where treatment & chronicity begin to conflict; or where, despite every attempt by the doctor to prescribe treatment modalities, there appears to be a medical condition which is “intractable”, is often a difficult one to determine.  In most cases, the office/treatment notes will reveal the line, which may come about gradually.  At other times, one may have a doctor who thinks that he or she can successfully treat any and all conditions, and reflects such a “positive” outlook in every office notation.  This is often not helpful, when it comes time to filing for Federal Disability Retirement benefits under FERS or CSRS.  To counter this, a frank discussion with the doctor at some point may become necessary.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Beyond the Diagnosis

The diagnosis of the medical condition in a Federal Disability Retirement case, either under FERS or CSRS, is merely the beginning point in preparing a case. As the Office of Personnel Management in Washington, D.C., is fond of repetitively pointing out, “The mere existence of a medical condition is not a basis for approval under Federal Disability Retirement laws.” While there may be some exceptions for certain severe medical conditions, the statement itself contains a truism which needs to be kept in mind throughout the process.  

Ultimately, in preparing a Federal Disability Retirement case, one must approach the entire process (a process, by the way, which is taking longer and longer to complete, as the backlog at the Office of Personnel Management is increasingly extending the wait-time) with a view towards bridging the two critical elements in any successful filing:  (A) the medical condition and (B) its impact upon one or more of the essential elements of one’s job.  

It is that “connective tissue” between the two which must be the focus, and that is why the symptoms which manifest themselves from the origin (the diagnosis) is what must be discussed.  For, ultimately, while the diagnosis of a medical condition provides the basis for which a medical specialist may begin treatment on a patient, it is the symptoms/symptomatologies which provide the answer to the question in all Federal Disability Retirement applications under FERS or CSRS:  In what way does one’s medical condition prevent a Federal or Postal Employee from performing the essential elements of one’s job?

That is the critical question which must be answered, in order to have a chance at having one’s Federal Disability Retirement application approved by the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Symptoms & Diagnoses

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is not that a formal diagnosis is unimportant; rather, it is that the diagnosis itself is merely a starting point and does not reveal the story which must be told in order to be eligible for Federal Disability Retirement benefits under FERS or CSRS.  

From a medical viewpoint, for treatment purposes and from the perspective of the treating doctor, identifying the source of the pain, entertaining the various treatment options, considering which treatment modalities will be most effective, etc., all play into identifying the proper source of the symptoms.  Thus, from a treatment perspective, identifying the medical condition by ascribing the proper diagnosis is of paramount importance.  A doctor often cannot begin the proper course of treatment unless and until formal identification is established. To that extent, it is also the beginning point for the treating doctor, in that once a source of pain or origin of symptoms is diagnosed, then various treatment modalities can be considered.  

For purposes of becoming eligible for Federal Disability Retirement benefits under FERS or CSRS, it is also merely a starting point.  As the Office of Personnel Management often likes to point out, “The mere existence of a medical condition does not mean that a person is disabled from performing one or more of the essential elements of one’s job.”  While quoting OPM as the source of legal authority is normally unwise, nevertheless one must grant that this particular statement is true within its limited context, and must be kept in mind when preparing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: A Doctor’s Comfort Level

Doctors are funny creatures.  Administrative matters are often distasteful; yet, most doctors recognize that it is a necessary evil as part of the general practice of medicine.  Doctors often act arrogantly; yet, their arrogance is often in reaction to questions and statements which they deem to be irrelevant or insolent.  In filing for Federal Disability Retirement benefits under FERS & CSRS, it is obviously important to get the active, affirmative support of a treating doctor.  How does one go about doing this?  It is ultimately up the patient.  Remember — we are speaking about a “treating doctor” — not a stranger, but a person who, normally over the course of many years, has come to know, evaluate and treat the potential applicant who is filing for OPM Disability Retirement benefits.  Over the years, therefore, hopefully a relationship has grown to fruition.  Asking the treating doctor to support you in a Federal Disability Retirement application — or, if an attorney is hired, to let the doctor know that his or her legal representative will be requesting a medical report — should be the culmination of that special relationship which has developed:  the doctor-patient relationship, one which has grown over the many years of contact, discussion, conversation, and treatment.

Sincerely,

Robert R. McGill, Esquire