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: Do Psychiatric Disabilities Still Carry a Stigma?

Do Psychiatric Conditions still carry a stigma?  Does the Office of Personnel Management, or the Merit Systems Protection Board, treat Psychiatric medical conditions any differently than, say, bulging discs, degenerative disc disease, or carpal tunnel syndrome, etc.?  Is there a greater need to explain the symptoms of psychiatric conditions, in preparing an Applicant’s Statement of Disability, than conditions which can be “verified” by diagnostic testing?  Obviously, the answer should be: There is no difference of review of the medical condition by OPM or the MSPB. 

Certainly, this should be the case in light of Vanieken-Ryals v. OPM.  Neither OPM nor an MSPB Judge should be able to impose a requirement in disability retirement cases involving psychiatric disabilities, that there needs to be “objective medical evidence,” precisely because there is no statute or regulation governing disability retirement which imposes such a requirement that “objective” medical evidence is required to prove disability.  As I stated in previous articles, as long as the treating doctor of the disability retirement applicant utilizes “established diagnostic criteria” and applies modalities of treatment which are “consistent with generally accepted professional standards,” the evidence presented concerning psychiatric disabilities should not be treated any differently than that of physical disabilities.  As the Court in Vanieken-Ryals stated, OPM’s adherence to a rule which systematically demands medical evidence of an “objective” nature and refuses to consider “subjective” medical evidence, is “arbitrary, capricious, and contrary to law.”  Yet, when preparing the Applicant’s Statement of Disability, it is always wise to utilize greater descriptive terms.  For, when dealing with medical conditions such as Bipolar disorder, Major Depression, panic attacks, anxiety, etc., one must use appropriate adjectives and “triggering”, emotional terms — if only to help the OPM representative or the Administrative Judge understand the human side of the story.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The OWCP Danger of Complacency

I have had far too many calls by individuals who were complacent with being on OWCP/DOL temporary total disability compensation. The old adage, “Ignorance of the law is not an excuse”, is still generally true. It is the responsibility of the Federal or Postal employee to file for Federal Disability retirement benefits under FERS or CSRS in a timely fashion — within one (1) year of being separated from Federal Service.  The fact that an individual is on the rolls of Worker’s Comp, receiving Worker’s Comp, receiving a scheduled award, going through rehabilitation or job retraining does not protect or extend the Statute of Limitations of 1 year.  Many people, especially Postal Workers, become separated from service without being properly notified.  A hint:  If you all of a sudden stop receiving those “Zero-balance” pay checks, chances are, you have been terminated & separated from service.  The burden is on the Federal employee to keep on top of things:  ask for your PS Form 50, or SF-50, whichever the case may be; call your agency on a regular basis to make sure that you are still on the rolls of the Agency.  If you have been separated from service, a personnel action should have been initiated.  From that moment — when you have been separated from Federal Service — you have one — I emphasize and reiterate — ONE YEAR from the date of separation from Federal Service to file for disability retirement benefits.

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