CSRS & FERS Disability Retirement: The Doctor's Opinion

As an attorney who represents Federal and Postal employees to “obtain” Federal Disability Retirement benefits, it is important to make distinctions within the process of securing the Federal benefit:  while it is important to solicit and secure the medical opinion of the treating doctor, the resistance from such doctors — if in fact there is any resistance at all — most often comes about because the doctor doesn’t understand the “process”. 

Doctors are medical providers.  They are in the practice of medicine because they believe in applying the science of medicine to help their patients get better.  Helping someone obtain Federal Disability Retirement benefits under FERS or CSRS is not part of “practicing medicine”.  Yet, in many ways, it is.  It is part of practicing medicine because, to allow the patient to continue to work in a job which he or she cannot perform, will only exacerbate and worsen the medical condition. 

Further, doctors never like to “disable” their patients.  To counter this medical opinion, it is important to clearly inform the doctor what the process of Federal disability retirement is and is not.  It is the job of the attorney hired to represent a Federal or Postal worker to obtain disability retirement benefits, to clearly and cogently explain the entire process to the treating doctor.  That is what I do, at the very start, in representing my clients.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Patient/Applicant

Before even thinking about starting the process of filing for Federal Disability Retirement under FERS or CSRS, it is important for the patient/applicant to approach his or her doctor and get an initial commitment of support. For, ultimately, the most essential lynchpin of a disability retirement application hangs on the support of a doctor — from the first and initial stage, all the way to the Merit Systems Protection Board (where live telephone testimony may be necessary).

The “patient” needs to approach the doctor with sensitivity. It is probably not even a good idea to talk about anything beyond the first stage of the process — instead, the focus should be about how “support” for a disability retirement application is actually part of the rehabilitation and healing process of medical treatment. For, ultimately, a disability annuitant under FERS or CSRS is not asking to be “totally disabled” by the doctor (and, indeed, most doctors do not want to release their patients into the retirement “pasture” of full disability); rather, it is simply a medical support of reasoning that a particular patient is no longer a “good fit” for a particular kind of job. Don’t scare the doctor off with a view of the “long process”; rather, the initial commitment is all that is needed — for the first stage of the process.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Employee's Usefulness

Federal Employees and Postal Employees should never consider or entertain the thought that filing for disability retirement benefits is a negative judgment upon his or her lengthy and productive career.  It is merely a statement of reality — that the Federal and Postal employee has had a good career; medical conditions may have shortened the first career, but this merely means that there will be opportunities to have a second career; and, in no way does it mean that there is a blemish upon the Federal career; merely that it is time to move on to something else.  And, indeed, the interruption of the Federal or Postal career as a result of impeding medical conditions merely is a statement that you are no longer a “good fit” for a particular kind of job. Further, if you are removed from the Federal sector because of your medical inability to perform your job, such a removal is a “non-adversarial” and “non-disciplinary” action, and therefore (again) should not, and cannot, be considered a “blemish” upon one’s career. And, finally, it is often the case that it is precisely because of the long and loyal hours you put into your job, that you paid a price for such loyalty — by embracing the stresses of the job, of working despite impending medical conditions.  In other words, very often I see that the stresses inherent in the position took a large and heavy toll upon the individual, such that medical conditions resulted from the long years of such heavy toll.  There is never a need to feel guilty about taking disability retirement; you’ve paid your dues; it is time to move on to another phase of your life.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "No Other Choice" Case

Then, of course, there are cases where an individual has “no other choice” than to file for disability retirement. Sometimes, it is a chance that is taken — the chance of paying an attorney. Yes, adverse removal actions can impact one’s chances of obtaining disability retirement benefits. A case study: A recent client was removed from a Federal Agency for criminal conduct (obviously, no names will be used, and the facts will be somewhat altered to protect the client’s confidentiality of information). The individual was nowhere near retirement age; but suffice it to say that he/she had been a loyal employee for 20 years. He/she had a medical condition — a psychiatric condition, which pre-dated the criminal conduct. He/she hired me to obtain disability retirement.

What choice did the person have? He/she really had “no other choice” other than to walk away with nothing, or take the chance of paying an attorney (in this case, me). I was blunt about the entire affair: Normally, I am able to get most of my clients approved at the first or second stage of the process, and I will normally ascribe a “success-rate” to a case; in this instance, the probable rate of success, in my opinion, was lower than my normal prediction. Nevertheless, he/she wanted to go forward with it. I contacted the doctors and guided them into writing a forthright medical report; today, the client is receiving his/her disability retirement annuity. Did the person “deserve it” despite the criminal conduct? Absolutely! His/her medical condition pre-dated the criminal conduct, and in fact was a major factor in the actuation of the criminal conduct itself. I am happy for the client, and from a professional standpoint, it is always satisfying to win a case where a client entrusted a case in which he/she had “no other choice” — but once the choice was made, to have made the right choice.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Physician II

This blog is written in response to a question posed: in the event that an individual is unable to have a medical report written by a treating physician for circumstances beyond his or her control (i.e., such as death of a treating physician; uncooperativeness of a doctor; need to move to a different locality and need to switch to another doctor for whatever reason, etc.), would or can a physician’s medical narrative report written by a doctor of “short tenure” still be effective? The answer is, of course, as with all legal questions, “It Depends”.

Think about it this way: Disability retirement has to do with proving that, because of a medical condition, an employee of the Federal Government is no longer able to perform one or more of the essential elements of his/her job. This simple statement, when broken down, actually has a number of limitless components: What is the job? What are the specific elements? What are the medical conditions? What are the symptoms? How do the symptoms impact the person? Does it require medications? Does it require surgery? Are there other treatment modalities? What specific symptoms impact which specific job elements? And on and on.

Thus, these questions and the answers to such questions can normally be answered only by a treating physician — one who has, over the course of a long tenure of treatment, come to intimately know the patient. At the same time, think of the following issue: A doctor whose primary source of income being to write up “disability determinations” for individuals, and whose name repetitively appears in the Office of Personnel Management — that doctor’s reputation will quickly become questioned. The issue of an effective medical narrative has an inherent component: The credibility of the writer (the doctor), and credibility is usually determined by the tenure of the patient-doctor relationship. Are there exceptions? Absolutely. As with everything else in life, credibility can always be established with the truth — for instance, if a recent change in doctors occurred because of a move, the doctor can simply state that fact, refer to prior medical records reviewed, and move on to the substance of the opinion. Alas, credibility is what always counts.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Physician I

Initial inquiries concerning filing for Federal and Postal disability retirement benefits often ask the following question: Do I have a doctor to whom I can refer the individual? This question often follows upon the unfortunate circumstance that the individual does not have a very supportive doctor, or has been under the “medical care” of an OWCP-referral doctor.  The answer is always an unequivocal:  No.  The reason:  The Merit Systems Protection Board is very clear about the issue — that in Federal Disability Retirement cases, a medical report is persuasive when written by a doctor who has a long-standing patient-doctor relationship; has had regular contact with the individual; has had clinical contact over a sufficient period of time, such that the doctor can, within reasonable medical probability, provide a rational basis for stating that the individual is no longer able to perform one or more of the essential elements of his or her job. Thus, even before considering taking a disability retirement, it is important for the individual to make a proper assessment as to whether or not one’s doctor is “supportive”; if not, it may be a good idea to think about switching doctors, and finding one who is supportive.

Sincerely,

Robert R. McGill, Esquire