In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations.
OPM’s Medical Questionnaire
At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence — that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully — is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.
Some basic rules in responding to OPM’s Medical Questionnaire:
Rule #1: Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.
Rule #2: Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it — why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.
Rule #3: Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations — one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.
Finally, Rule #4: Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”
Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.
Second Issue: Accommodations
Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “’subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.
The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.” In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:
“We Agree with Mr. Bracey that OPM’s argument fails, because the term ‘vacant position’ in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359
Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.
Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.
I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired — a right — in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future — one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.
I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – to pursue your future investment aggressively, and to sustain your investment for a long time into the future.
For more information, contact me in one of these ways: (1) view my website at www.FederalDisabilityLawyer.com; (2) email me at federal.lawyer@yahoo.com; or call me at 1-800-990-7932.
Sincerely,
Robert R. McGill, Esquire
Filed under: Accommodation and Light Duty, Application, Appeals, and Other Medical Documentation Submitted To the OPM, Federal Disability Judge-Made Decisions Quoted, OPM Disability Actors - The Doctor, OPM Medical Questionnaire, Post-Application Issues, U.S. Merit Systems Protection Board (MSPB) | Tagged: "made up" federal positions, 1-year OPM disability rule, ad hoc federal jobs, advising your treating doctor about your opm disability application, Ancheta v. Office of Personnel Management, Bracey v. Office of Personnel Management, Cadman v. Office of Personnel Management, doctor and patient relationship, doctor supporting disability fers, doctor's opinion should be sound rational and logical, doctor's statements of disability, Dougherty v. Office of Personnel Management, employment standards administration owcp, ensuring a supportive physician even after opm application, federal disability annuity, federal disability retirement annuitants, federal employee disability doctor, fers disability annuitants precautions, form 2499 for light duty in the usps, important issues to opm disability annuitants, injured federal employee, injured postal workers, it's all about work disability and job performance, legal accommodation for Postal workers, light duty, light duty accommodation versus disability retirement, light duty and reasonable accommodation, light duty in the Postal Service, maintaining your federal disability pension plan, medical condition must last one year, offer of modified assignment (limited duty) ps form 2499x, OPM Disability and the Ideal Doctor and Patient Relationship, patient-doctor bond improves chances for fers medical retirement, post disability application issues, post office light duty, Postal disability retirement, postal service disability retirement, postal service employee light duty forms, Prestien v. Office of Personnel Management, SF50 Notification of Personnel Action, should I find another physician to support my opm claim?, simplifying fers disability matters for your treating doctor, taking the opm medical questionnaire seriously, the federal disability attorney and your treating physician, the potential for getting a Medical Questionnaire, Tompkins v. Office of Personnel Management, what's permanent vacant position in opm disability law | 1 Comment »
OPM Disability Retirement: What Ifs
“What Ifs” are hypotheticals which can paralyze a process. Often, such imaginary road blocks are pragmatic irrelevancies, and are better left alone. Others, one should affirmatively confront.
Thus: “What if my Supervisor says…” There are things in one’s control, and those which are not. A Federal Disability Retirement application contains an implicit concept which must not be forgotten: It is actually a Federal Medical Disability Retirement application. What the Supervisor says or doesn’t say is not ultimately relevant. Can the Supervisor’s Statement have an influence or impact? Obviously. But it is not one of those things which should be worried about, because it is beyond anyone’s control — for the most part.
“What if my doctor won’t support my case?” This is a hypothetical which one has control over, in filing for Federal Medical Disability Retirement benefits. As such, one should make an appointment with the doctor before starting the process, or even contemplating starting the process, and have a frank discussion with the doctor. Bifurcate those issues which one has control over, from those which one does not. In filing for Federal Disability Retirement benefits under FERS or CSRS, one needs to confront the reality of today, in preparation for tomorrow’s future.
Sincerely,
Robert R. McGill, Esquire
Filed under: Pre-Application Considerations | Tagged: a doctor's comments are more important than a supervisor's comments in an opm claim, civil service disability, CSRS disability retirement federal attorney, deciding what medical documentation is relevant to your opm claim, ensuring a supportive physician even after opm application, ethical issues when filing the 3112b form, federal disability retirement is primarily a medical issue, fers disability application supervisor comments, FERS disability lawyer, FERS disability retirement, focusing on the main medical issues of your illnesses or injuries, getting the medical support you need for your federal disability case, how to seek the support of your treating doctor, law firm representing clients in opm disability law all across america, neutralizing negative statements from supervisor's statements in sf 3112b, OPM disability lawyer, OPM disability retirement, owcp disability retirement, postal service disability retirement, remembering that opm disability retirement is primarily a medical issue, representing federal employees from any us government agency, should I find another physician to support my opm claim?, super, supervisors' revenge against Postal workers, the 3112c form, the doctor's support for owcp and opm medical claims, the limited power of a supervisor in the fers disability retirement process, the most and the least important actors fers disability retirement, the relevant medical information in opm disability, the supportive physician, trying to change things you have some control over, usps disability and the support of a doctor to your workers comp claim, USPS disability retirement, usps form 3112c, why the sf 3112b matters less than the doctor's statements, why your doctor's support is critical to your opm disability claim, worrying about keeping your doctor on your side under workers comp, worrying about things out of your control | Leave a comment »