Medical Retirement Benefits for Federal & Postal Employees: The Treating Doctor

In a Federal Disability Retirement application under FERS & CSRS, what distinguishes the entire process of proving, by a preponderance of the evidence, that a Federal or Postal employee is unable to perform one or more of the essential elements of one’s job — from other processes, such as Social Security and OWCP — is that the evidentiary weight is placed upon a treating doctor.  There are “other” types of doctors other than treating doctors:  specialists who are referred to for consultative purposes; doctors who specialize in determining functional capacity & evaluate the functional limits of an individual; occupational specialists, etc.  Why a “treating” doctor?  Because we are talking about workers who, over time, find that he or she is no longer able to perform the essential elements of a job and, over that same time, it makes sense that a doctor would be treating that individual.  Disability Retirement is not normally filed as a result of a traumatic accident (although that can happen, also); rather, a Federal or Postal employee normally files a Federal Disability Retirement application because of a condition which develops over time.  That is why the “treating” doctor would be the best source of knowledge and information:  because, through clinical examinations, long-term doctor-patient relationship, the treating doctor can make a long-term assessment based upon all of the facts and circumstances of the patient.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: OPM’s Arsenal

The names have been changed to protect the innocent.  Or, perhaps those who are impliedly involved herein are not so innocent after all.  Nevertheless, the names must be changed to protect confidentiality of sources, etc.  Every now and then, the Office of Personnel Management discloses their arsenal of weapons.  For instance, such an arsenal might be that a denial of a Federal Disability Retirement application was based upon a review by a retired contract doctor.  Now, let us analyze such an arsenal.  First, the term “retired” reveals an interesting concept.  It means that the individual no longer sees hundreds of patients on a daily basis, nor is actively practicing medicine.  Next, on a superficial level, we take the word “contract” — meaning thereby that the individual is paid to review the paper submissions — not to examine the applicant who is filing for Federal Disability Retirement benefits.  And, finally, the concept of a “doctor” — let us be certain as to the two preceding words, “retired” and “contract”, and that is the extent which one needs to understand in accepting the definition of the word “doctor”.  As opposed to:  the treating doctor of an applicant for Federal Disability Retirement.  Who would you choose to treat you?

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: OPM over OWCP

I still get many emails and phone calls about the onerous, “over-the-top” behavior, and the bullying tactics of OWCP/DOL temporary total disability payments & requirements — everything from constant, incessant and unending, harassing letters, to requiring further evaluations from second and third opinion doctors (or so-called doctors), to constantly requiring one’s treating doctor to justify the continuing disability status, thereby endangering the continuation of the doctor-patient relationship.  And who can criticize or blame the doctor for wanting to drop a patient for the amount of hours he/she has to put into, for “non-medical” issues, and for the time expended which the doctor will never be paid for? 

Yes, Worker’s Comp pays more.  Yes, it is non-taxable.  Yes, there are monetary reasons for staying on OWCP.  But the truth is, money doesn’t buy peace of mind or a life of lesser stress.  OWCP is meant to be a temporary means of providing income — it is not designed for the long term, and indeed, the Office of Worker’s Compensation makes that abundantly clear by their actions.  OPM Disability retirement under FERS or CSRS pays much less, but it allows for independence and a semblence of freedom, not even to mention a life of some dignity.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: the Bruner Presumption – Agency Actions II

One must never misunderstand the law and its application.  This is true in any legal arena of every area of law; when it comes to Federal Disability Retirement law, the misunderstanding of an application of law can have direct and irreparable consequences:  the failure to secure disability retirement benefits and, therefore, the financial security for one’s future.  The “Bruner Presumption” is one such application of law which is often misunderstood.  Without revealing all of its proper applications, it can (and is) often misunderstood to be equivalent to a “presumption of innocence” — but that would be wrong.  The Bruner Presumption comes about as a result of an Agency Action — of removal based upon the employee’s medical inability to perform one or more of the essential elements of the job.  With or without the Bruner Presumption in Federal Disability Retirement law, the “Burden of Production” — i.e., of the medical documentation, the factual establishment that the Agency is unable to accommodate the individual — still rests and remains with the applicant.  One must never think that the applicability of the Bruner Presumption makes a case a “slam dunk” of any sort.  This is especially so where we are talking about those medical conditions which are often viewed as “suspect” by the Office of Personnel Management — such as Fibroymyalgia, Chronic Fatigue Syndrome, Multiple Chemical Sensitivity cases, etc (by “suspect”, however, I do not mean to imply that such medical conditions make it harder for an applicant to get it approved; rather, it merely requires that the one who is preparing such an application, do it properly, thoroughly, and with legal force).  Remember that the initial, and continuing, burden of production always remains with the applicant; what the Bruner Presumption merely does is to “shift” some of the weight of the burden of proof over to OPM, and in the event of an appeal to the Merit Systems Protection Board, of placing a Federal Disability Retirement case into a more favorable light with the Administrative Judge.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

Sincerely,

Robert R. McGill, Esquire