Federal Disability Retirement: As a Medical Issue, Medical Treatment Must Be Followed
by Robert McGill |
A man who always says, “Yes,” can rarely be trusted; a man who always says, “No,” can never be followed; a man who says, “Yes” sometimes, and “No” at other times, can surely be relied upon.
Federal Disability Retirement benefits under FERS (Federal Employees Retirement System) or CSRS (Civil Service Retirement System) must be proven, by a preponderance of the evidence, that one is eligible and meets the regulatory criteria, before the Office of Personnel Management (OPM).
In filing for Federal Disability Retirement benefits, it is often just as important for an applicant to know what will result in a denial of an application, as it is to know what is needed to get one approved. Thus, what one does not know about Federal Disability Retirement law can be harmful. Fortunately, most of the laws, statutes and regulations governing disability retirement law can be characterized as “common sense”, and so it is with issues governing “medical treatment”.
Attorneys (myself included) who represent Federal and Postal employees to obtain Federal Disability Retirement benefits often get lost in the morass of meeting the legal criteria for their clients, forgetting that, first and foremost, the entire process begins with the medical condition and the appropriate treatments for that condition. Whether a medical condition requires a certain type of treatment; whether that treatment is necessary or optional; and whether a patient – one who later becomes an “applicant” for Federal Disability Retirement benefits – complies with the treatment regimen prescribed by the doctor, becomes no small matter.
“When an employee is unable to render useful and efficient service because he fails or refuses to follow or accept normal treatment, his disability flows, not from the disease or injury itself, as the statute requires, but from his voluntary failure to take the available corrective or ameliorative action.” Shanoff v. OPM, 2006 MSPB 298, Docket No. PH-844E-05-0598-I-1 (decided September 27, 2006), citing Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed.Cir. 1986); and Craig v. Office of Personnel Management, 92 MSPR 449 (2002).
This is an important legal principle to understand and follow for any Federal or Postal employee contemplating filing for Federal Disability Retirement benefits under FERS or CSRS: There must be a direct causal connection between the medical condition and the employee’s inability to perform useful and efficient service. If that causal connection is interfered with in a substantial manner, then such interference will constitute a justifying basis to deny federal disability retirement benefits. Interference with that causal connection is most blatantly revealed when a Federal or Postal employee fails to comply with a medically-prescribed medication regimen.
Non-compliance with a prescribed medication regimen can be a basis for denial of a Federal Disability Retirement claim under FERS or CSRS.
The legal rationale for making this judicial determination is not only well-established; it is, moreover, “common sense”. If a Federal or Postal employee suffers from a medical condition such that the medical condition prevents one from performing one or more of the essential elements of his or her job, then there is a direct causal connection: the medical condition directly “causes” the prevention of the job performance. On the other hand, if the medical condition can be reasonably treated with a medication regimen, or through some sort of therapy regimen, then that direct causal connection is “broken” – by the act (or non-act of non-compliance) by the applicant/patient.
Note, however, that this issue of “non-compliance” can have many grey areas: refusal to have surgery is not normally a basis for denial of disability retirement benefits (and this makes sense, because surgery is a very personal and potentially life-threatening decision, with varying levels of success, with no guarantee of recovery); and refusal of one type of therapy, but compliance with another, is not necessarily a basis for denial of a disability retirement application. The point here – the “common sense” rationale – is that a person must take some steps to try and get better. But if a person refuses all reasonable modalities of treatment, then that becomes a substantial basis for the Office of Personnel Management to deny a Federal Disability Retirement application.
Such was the perspective of two out of three Administrative Judges in the case of Shanoff v. OPM, where the majority opinion stated: ”The appellant has never seen a psychiatrist, has not consistently seen his psychologist or psychotherapist, has refused a course of treatment recommended by his psychologist, and refuses to take anti-depression and anti-anxiety medication prescribed by his physician.
Therefore, the appellant has failed to show that his condition cannot be improved and controlled with such reasonable treatment, and so he is barred from entitlement to a disability annuity.” In effect, the Board is saying that you – as the patient and Federal Disability Retirement applicant – cannot be the intervening cause of your own medical condition, and thereby the very reason why you cannot perform the essential elements of your job. It must be your medical condition alone – and not your non-compliance with reasonable modalities of treatment – which is the direct cause of your inability to continue in your Federal or Postal job.
© 2013 Robert R. McGill. All rights reserved. This article may not be reproduced without express written consent from Robert R. McGill.
by Robert McGill |