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

Disability Retirement for Federal Government Employees: Confirming the Relationship

After undergoing all of the those diagnostic tests; after allowing the doctor to clinically examine, prescribe multiple medications based merely upon the say-so of the doctor; after allowing for invasive surgery; sending you to physical therapy; if the time then comes to prepare and file a Federal Disability Retirement application under FERS or CSRS, it is important to confirm the real strength of that “patient-doctor” relationship that has apparently been ongoing and fostered for those many months, years, and sometimes, decades.

It is not enough to get a nebulous “pat-on-the-back-sure-I’ll-support-you” sort of response, and with that, you receive a thick packet from the medical office, you open it, and inside is merely a copy of your medical records.  No — “support” must be concrete and definitive. It must mean, specifically, that the doctor is willing to write an excellent medical report outlining his or her opinion in connecting your medical condition with you inability to perform one or more of the essential elements of your job.  If it is time to file for Federal Disability Retirement benefits, it is time to have a heart-to-heart talk with the treating doctor, and see how committed he or she really was and is to this “patient-doctor” relationship.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Doctor

Out of all of the elements comprising a Federal Disability Retirement application — the various aspects, including medical, personal, impact-statement, statement of disability, Supervisor’s Statement, etc. —  the essence of it all must be coordinated around the core of the case:  the medical narrative report.

That alone has multiple, inherently complicating factors:  Why won’t the surgeon write the report?  Why is it that the Pain Management doctor, or the Internal Medicine doctor, or the Family Physician is the one often most cooperative and willing?  Is the Chiropractor’s opinion sufficient?  Is it helpful?  How detailed must the report be?  How long must you be a patient in order to establish the threshold of having a “longstanding doctor-patient relationship“?  Are medical records in and of themselves sometimes sufficient to obtain Federal Disability Retirement benefits?  Is it sufficient to get a Therapist to do the report, without the Psychiatrist?  Can a therapist alone win a case? Must I undergo a Functional Capacity Evaluation?  Can I use reports from an OWCP Second Opinion doctor?  If my Psychiatrist only sees me for five minutes each time and prescribes the medication, is it necessary for him/her to write a report?  How detailed must the report be?  Is the doctor going to understand, let alone actually read, the SF 3112C?  These are just some of the questions which one is immediately confronted with, in beginning the process of putting together a Federal Disability Retirement application under FERS or CSRS.  It is a complex, overwhelming process.

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

FERS & CSRS Disability Retirement & Treatment Compliance Issues

While the issue of ‘causality’ is not one which often comes up in OPM disability retirement cases (by obvious contrast, of course, is the fact that causality, whether it was caused while working, on the way to work, outside of the parameters of work, etc, is often an issue in OWCP/DOL cases), there are certain cases where such an issue may be important to address. Baker v. OPM, 782 F.2d 993 (Fed. Cir. 1986) is actually a case which continues to remain of interest, in that, there, the Court noted that where obesity had a causal impact upon the appellant’s back pain, and since the appellant failed to follow medical instructions to lose weight, therefore the cause of the back pain was not as a primary and direct result of a medical condition, but rather because of non-compliance of reasonable available corrective or ameliorative action.

Thus, there are certain areas where you will be in danger of having your disability retirement application denied: one such area, where the Merit Systems Protection Board has been fairly consistent, is non-compliance of a prescribed medication regimen. In other areas, however, especially where surgery is recommended but where the percentage of success cannot be easily quantified, there is much more leeway. Disability Retirement is an area of law which encompasses a wide range of complex and potential “legal landmines”, and it is often a good idea to seek the counsel of an experienced attorney to help guide your way.

Sincerely,

Robert R. McGill, Esquire