Ten Dos and Don’ts in filing for Federal Disability Retirement Benefits
by Robert McGill |
In the ant world, there is the reality of life and death; in the rabbit world, there is a similar reality. In each world, there is the life of a thing, and the death of the thing. With Man, there is the next level of awareness – of the knowledge of these things. But as to whether such knowledge constitutes wisdom depends not on the beauty of the life lived, but the manner in which one approaches death. The conundrum is that death is the end of all things; how one approaches that end — that is what separates Man from the ant, and from the rabbit.
— From Zen: The Master and his Student
There is the “process reality” in filing for Federal Disability Retirement benefits under FERS & CSRS. It is a reality separate and distinct from the reality that a Federal or Postal Worker who has dedicated his or her life throughout an entire career has experienced. For, throughout the career of a Federal or Postal Worker, the focus has been upon the “working world” of accomplishing the goals of the job; of expectations of career advancements; of performing the essential elements of one’s job to the best of one’s ability.
Once a medical condition or disability impedes, prevents, or otherwise impacts a career goal, the perspective changes. The laws which govern the attempt to file for, and obtain, Federal Disability Retirement benefits under FERS or CSRS have been expanding, contracting, or otherwise being fine-tuned by legal precedents, all in a parallel universe to those involved in the working world of careers. Such lack of awareness – of the parallel ignorance – of the Federal Disability Retirement “process” is a natural thing; for just as one rarely scrutinizes one’s automobile insurance policy until an accident occurs, so one would have no reason to evaluate the process entailed in filing for Federal Disability Retirement benefits until the need arises.
The “process reality” which is involved in filing for Federal Disability Retirement benefits under FERS or CSRS contains some basic dos and don’ts. To this end, it is often instructive to review some case laws (both positive as well as adverse), where applicable. 10 things you should do (or should not do) in filing for Federal Disability Retirement benefits, include the full panoply of all of the agents, principals and concepts which make up the totality of the process. This is not an exhaustive list; not are they delineated in any order of importance or significance. They include:
- Do not assume. Without repeating the tripartite acronym which we are all familiar with, assuming that a treating doctor will support a Federal Disability Retirement application is like playing Russian roulette in reverse – with one empty chamber and five full ones. Remember that the general rule in Federal Disability Retirement cases is that an appellant’s medical evidence must show how his or her condition impacts the ability to perform specific job duties and requirements. See Alford v. OPM, 111 M.S.P.R. 536 (2009). As such, it is important to ascertain the support of one’s treating doctor before entering into the process reality of Federal Disability Retirement. Don’t assume that just because your treating doctor has shown acceptable bedside manners for many years, that he will gladly and unreservedly support your attempt to get him “involved” in the Federal Disability Retirement process. Doctors have no greater idea about the process involved in filing for, fighting for, and obtaining Federal Disability Retirement benefits under FERS or CSRS. As ignorance of a process often results in fear and suspicion of the process, so informing the doctor of what the process involves and entails is a necessary preliminary step for an ultimately successful outcome.
- Do not wait. Waiting only exacerbates the situation. One often finds that a deeper hole is dug when one waits; because the process is long (and is taking longer and longer), taking excessive leave; eating into savings; not having the finances to endure the long haul; these are things which only create a worse situation. For, the action of waiting is also often an action of “putting off” or procrastinating. Further, it is normally better to prove one’s case while employed, such that one does not have to rely upon “post separation medical evidence”, where one must prove that “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period.” Reilly v. Office of Personnel Management, 571 F.3d 1372, 1382 (Fed. Cir. 2009)
- Do respond affirmatively: If a Performance Improvement Plan (what is commonly referred to as a “PIP”) is proposed, or if a suspension is in progress, the Federal or Postal employee should immediately make the causal connection between the performance deficiency and the medical condition which constitutes the concealed, underlying reason for the deficiency. Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), where the U.S. Court of Appeals for the Federal Circuit reiterated the applicable standard for disability retirement determinations, stated that one of the criteria for proving one’s eligibility for Federal Disability Retirement benefits was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.” Make the causal connection; don’t leave it concealed. It must be a “showing” – meaning that one must prove the connection between A (the medical condition) and B (one’s position with the Federal System). Alternatively, where the medical evidence does not specifically address the job requirements, but it shows unambiguously and without contradiction that the appellant cannot perform the duties of the position, the Board can draw the linkage and find the appellant entitled to disability retirement. Bynum v. OPM 89 MSPR 1 (2001).
- Do ask outright of the doctor. This is a reiteration of the First “Do Not” – stated as an inverse proposition, precisely because of its inherent importance. This is the time to take what it means to have a doctor-patient relationship. Such a relationship is not a unilateral one; it is a bilateral relationship which has (hopefully) developed over time. Such time can be a relatively short period (say, 6 months) or be constituted by a decade or more. In Tan-Gatue v. O.P.M. 90 M.S.P.B. 116 (2001), the Merit System Protection Board stated that they have “consistently found that medical conclusions based on a long familiarity with a patient are of greater weight than those based on a brief association or single examination,” and the Board “gives greater deference to medical opinions that are supported by reasoned explanations than it gives to mere conclusory assertions.” One’s treating doctor knows you best, because of multiple tests, diagnostic results, and clinical examinations, and such doctor-patient relationship – if it is to mean anything – should be put to the test. It is time for your doctor to support you in a crucial decision-making moment – one which will impact your career, your finances, and your life in a dramatic way.
- Don’t count on bilateral loyalty with your agency: It would be nice if the Agency for which the Federal (or Postal) employee works, would be supportive in all respects of the Federal Disability Retirement process – emotionally, physically, etc. But don’t count on it. The years of investing in the Federal sector job will not necessarily result in a return of loyalty when the Agency is informed of your intention to file for Federal Disability Retirement benefits. A word to the wise: Remember that the Merit Systems Protection Board has previously held that “an appellant’s application for disability retirement in the face of an impending removal for misconduct may cast doubt upon the veracity of his application.” Henderson v. OPM, 109 MSPR 529 (2008).
- Do not believe everything your Agency tells you. Agencies are made up of individuals, and most individuals are about protection of self-interest (yes, while cynicism prevails, it is too often the reality). Yet, if an agency allows you to perform “light-duty” work, and you are able to continue such work, there is nothing inherently “wrong” with doing it. Such temporary, light duty work, however, does not constitute an “accommodation” under the law, and would not ordinarily preclude you from filing for Federal Disability Retirement benefits, if and when the time comes when the Agency ends such light duty work. Thus, remember that in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), 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.” Furthermore, “accommodation” means “an adjustment made to an employee’s job or work environment that enables the employee to perform the duties of the position.”
- Do provide a “totality of evidence” approach in preparing a Federal Disability Retirement application. In Wilkey-Marzin v. OPM, 82 M.S.P.R. 200 (1999), the Merit Systems Protection Board found that a determination regarding entitlement to disability retirement benefits must consider the following evidence: (1) objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; (4) evidence relating to the effect of the applicant’s condition on his ability to perform in the grade or class of position last occupied. Each bit of evidence does not, in and of itself, constitute a necessary component, but may be sufficient to prove one’s case. At the same time, do not engage in a “shotgun” approach, of trying to cover all bases; instead, use the evidence you have in the most targeted, precise, and effective manner.
- Do emphasize the credentials of the doctor. Remember that the Office of Personnel Management is not a medical facility. While they periodically have a “contract doctor” review the medical records, the OPM Representative does not have any special credentials. Your treating doctor – whether a General Practitioner, a Family Doctor, an Internist, or an Orthopaedic Specialist or Board Certified Psychiatrist, is qualified to render a medical opinion by the mere fact of being your treating doctor. In Vanieken-Ryals v. OPM, 508 F.3d 1034 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit stated that OPM must consider the medical evidence that is submitted, and cannot attack a medical condition unless there is a doubt as to the “credentials or veracity [of the doctor],” and this is especially true where the doctor has “utilized established diagnostic criteria and [is] consistent with ‘generally accepted professional standards’ ” of medical practice. Your treating doctor has both the credentials, and will apply the established diagnostic criteria in rendering his or her opinion on your case. You just need to emphasize that fact.
- Do not act as a lawyer. Just as the OPM Representative is not a doctor and can/should only comment on whether one’s application has met the criteria of eligibility based upon a comparison of the evidence presented and the statutory requirements, so a lay person who attempts to quote “the law” will normally undermine his or her own effectiveness by attempting to be something that one is not. Remember the age-old adage: “He who represents himself has a fool for a client.”
- Do present your case in a streamlined, professional manner. Overemphasis upon an emotional appeal may well undermine an otherwise effective presentation of a case. Don’t overstate the case; rather, let the medical documentation present the medical evidence, and never overstate the case beyond what the medical support can prove. Remember the lines from Othello: “But I will wear my heart upon my sleeve/For daws to peck at: I am not what I am.” Act 1, scene 1, 64 – 65.
The process reality of preparing for, and filing, a Federal Disability Retirement application under FERS or CSRS can be a daunting task. With multiple pitfalls and unforeseen obstacles, it is comprised of a complex parallel universe which is not intuitively obvious. The 10 dos and don’ts listed above are by no means exhaustive. Instead, they are meant to provide some basic guidelines in preparing an effective Federal Disability Retirement application for any Federal or Postal employee who is contemplating such a process. Ultimately, of course, the entire process begins and ends with the medical condition which is impacting a Federal or Postal employee. In between, however, is the process reality of the details involved, and this article is meant to fill in some of those details.
© 2014 Robert R. McGill. All rights reserved. This article may not be reproduced without express written consent from Robert R. McGill.