Federal Disability Retirement Benefits for Federal & Postal Employees: The Doctor and the FCE

For whatever reason, the treating doctor — unless he or she is a specialist (i.e., an Orthopaedic Surgeon, a Rheumatologist, a Pain Management Specialist, etc.) — is often uncomfortable and feels a sense of inadequacy in making a determination as to whether a Federal or Postal employee is unable to perform one or more of the essential elements of his or her job.  Under such circumstances, it may be fruitful for physical medical conditions, to undergo a Functional Capacity Evaluation (an “FCE”).  An FCE provides — in addition to “objective” diagnostic test results — an independent basis upon which to rely upon, in formulating a medical opinion.  The FCE provides, for the treating doctor, a “test” upon which the doctor can formulate an opinion, based upon reasonable medical certainty, as to the physical limits, endurance, and capabilities of an individual.  Further, the Office of Personnel Management is often impressed with an FCE.  Ultimately, the medical opinion of the treating doctor, based upon a long history of clinical examinations, diagnoses based upon generally accepted criteria within the medical profession, diagnostic testing, and an attempt at reasonable treatment modalities:  all together, comprise a valid basis for formulating and rendering a medical opinion in a Federal Disability Retirement case.  Nevertheless, if an FCE makes the treating doctor that much more comfortable in coming to a medical opinion, then by all means, go through with the FCE.  It can only make your OPM disability case stronger.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Case of Fibromyalgia

Fibromyalgia is one of those medical conditions that the Office of Personnel Management systematically “targets” as a condition which is prima facie “suspect”. This is despite the fact that there are cases which implicitly “admonish” OPM from engaging in the type of arbitrary reasoning of denying a disability retirement application because they “believe” that “no objective medical evidence” has been submitted, or that the “pain” experienced (diffuse as it might be) is merely “subjective”, or that the chronicity of the pain merely “waxes and wanes”, and a host of multiple other unfounded reasonings. Yet, cases have already placed a clear boundary around such arbitrary and capricious reasonings.

A case in point, of course, is Vanieken-Ryals v. OPM, a U.S. Court of Appeals for the Federal Circuit case, decided on November 26, 2007. In that case, it clearly circumscribes the fact that OPM can no longer make the argument that an Applicant’s disability retirement application contains “insufficient medical evidence” because of its lack of “objective medical evidence”. This is because there is no statute or regulation which “imposes such a requirement” that “objective” medical evidence is required to prove disability. 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'”, then the application is eligible for consideration. Further, the Court went on to state that it is “legal error for either agency (OPM or the MSPB) to reject submitted medical evidence as entitled to no probative weight at all solely because it lacks so-called ‘objective’ measures such as laboratory tests.” Statues are passed for a reason: to be followed by agencies. Judges render decisions for a reason: for agencies to follow. Often, however, agencies lag behind statutes and judicial decisions. It is up the an applicant — and his or her attorney — to make sure that OPM follows the law.

Sincerely,

Robert R. McGill, Esquire