FERS Disability Retirement: First and Foremost, a Medical Matter

A linear thought process requires priority and sequence, importance and significance, placement both in mind, culture and character.  A circular thought process allows for the equality and recognition that the totality of the universe is important to the chain of events, time, history, culture, people, and God.  Wars, famine, destruction and loss of faith can be avoided when one sees Man within the framework of circularity.  Linear thought has an end; circular thought only begins.

From Zen: The Master and the Pupil

In all phases of life, one must always determine that which precedes another in matters of priority, importance and significance.  In philosophy, and specifically Aristotelian Metaphysics, “form” (the “whatness” of a thing) enjoys priority to “matter” (the material which makes up a thing), so in all aspects of life one must always be aware of that which is important, that which is secondary, and so on.

In preparing to file for Federal Disability Retirement benefits under FERS, the “priority” of concerns must always be to attend to the medical condition, the injury, the illness, etc.  Thus, the paradigm of what happens in “real life” is often as follows: A Federal or Postal worker who has worked in the Federal sector for many, many years, begins to develop a medical condition, and in the first year of the medical condition, has to use up much of the accrued sick leave, and maybe even all of the accrued annual leave, and perhaps even some LWOP.

For the fortunate Federal or Postal employee, two elements may coalesce and the outcome would be a positive one: the medical condition is “cured” or otherwise becomes stable; the Federal Agency or the Postal Service has supported the employee, and the aberration of exhausting all of the sick leave, annual leave, and going on LWOP was a mere blip on the Federal or Postal employee’s record, and life and career advance uninterrupted.

But the identical hypothetical, in real life, can take on a very different course of events.  The medical condition progressively deteriorates the health of the individual; the medical condition becomes “chronic”; sick leave is exhausted faster than it is accrued; the work which the Federal or Postal worker leaves undone because of the lengthy absences is not left as a residue of mere whispers in the hallways of the Federal building; rather, they become a malignancy which expands into open hostility by the Agency.

At some point in the “process” of a deteriorating medical condition, the question is asked:  Is it time to file for FERS Disability Retirement benefits?  At what point does this question arise?  If it is asked too soon, there is the appearance that one is merely trying to “game the system”.  If it is asked too late, there is the untenable circumstance that the Federal or Postal employee has done everything to destroy the life and career that one has worked so hard to preserve — exhausting all savings; imprinting the blemish upon one’s reputation of being a conscientious worker; being placed on a Performance Improvement Plan (commonly referred to by its acronym, a “PIP”); straining the carefully fostered relationships developed over many years within the Agency by having others “carry the workload”, etc.

It is often the gray line — the boundary between suffering from a medical condition and attempting to take care of the medical condition; and the recognition that one must survive — financially, emotionally, for the present and the future; and the tension which builds between the two.  There is rarely a “right” time to ask about Federal Disability Retirement benefits.  At some point, it becomes a natural question.  If the Federal Agency “suggests” such a course, it is probably at a later stage than was necessary; if the doctor suggests it, it is at least a time of serious consideration.  If the Federal or Postal employee is contemplating it, then certain considerations should always come to the forefront.

When the time comes in the life of a Federal or Postal employee to contemplate filing for FERS Disability Retirement benefits, the conceptual distinction must be made between “having a medical condition” and “proving that a medical condition prevents one from performing one or more of the essential elements of one’s job.”  There is thus the “medical aspect” of the life of a Federal or Postal employee, and the “Disability Retirement applicant aspect”.  While the two should never directly conflict, the existence of the former does not necessarily guarantee the success of the latter.

This is where priority, importance, and significance come into play.

Priority:  One’s health and well-being; taking care to obtain the necessary medical treatment to regain one’s health — these should be the priority in one’s life.

Importance:  While one’s health concerns have a priority; this does not mean that collateral needs are unimportant.  Importance is not defined by priority in sequence.  Rather, there can be multiple issues of relatively equal importance, and the focus upon one does not diminish the importance of another.  In a Federal Disability Retirement application, it is critical to begin laying the groundwork in obtaining the necessary medical evidence in order to prove one’s eligibility for Federal Disability Retirement benefits under FERS.

Significance:  Keeping in mind that the priority of concern is health and well-being; that importance of other considerations does not detract from the priority of that singular focus upon one’s health; and further, that there are significant evidentiary issues which must be confronted in preparing a Federal Disability Retirement application.

How does all of this translate into the practical sphere, for a Federal or Postal worker, in preparing to file for FERS Disability Retirement benefits?  Take, for instance, the issue of medical treatment, and how such medical treatment will impact one’s eligibility in filing for Federal Disability Retirement benefits.  If surgery for a medical condition is an option, must one undergo such surgical intervention?  How about physical therapy?  Medication regimens?

Such questions obviously contain all three of the elements previously discussed — priority (which modality of treatment and to what extent), importance (whether certain medical treatments will be helpful, and what impact will refusal have upon a Federal Disability Retirement application), and significance (can refusal to engage certain modalities of treatment regimens prevent one from being eligible for Federal Disability Retirement benefits) — all coalesce and intersect.

Where does singular focus upon medical treatment end, and considerations of Federal Disability Retirement begin?  This is probably a rhetorically irrelevant question, because treatment for one’s medical condition should never “end”, but at some point, there is an intersection between the medical condition, and steps to be taken to document one’s medical condition for purposes of filing Federal Disability Retirement benefits.

When the two issues coalesce, certain legal principles need to be kept in mind.  For instance, one should note that an applicant for disability retirement benefits must establish the extent to which her disability can or cannot be “controlled”.  Shanoff v. Office of Personnel Management, 103 M.S.P.R. 549 (2006).  Furthermore, the Board has repeatedly held that the voluntary refusal to accept facially reasonable treatment, standing alone, will bar entitlement to Federal or Postal Disability Retirement benefits.

The obvious question here, of course, is what is “facially reasonable treatment”?  When an employee is unable to render useful and efficient service because the Federal or Postal employee fails or refuses to follow or to accept normal treatment, then it will be found that the disability flows, not from the disease or injury itself, but from one’s voluntary failure or refusal to take the available corrective or ameliorative action.  Again, Shanoff, 103 M.S.P.R. 549, (citing Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed. Cir. 1986)).

As the 20th Century Philosopher Ludwig Wittgenstein once noted, the mere fact that one may not be able to observe the clear demarcation between light and darkness, does not mean that either don’t exist.  Similarly, while the Merit Systems Protection Board may not always explicitly define, for each and every case, what kinds of medical treatments “must” be followed, doesn’t mean that there aren’t certain guidelines to follow.  For instance, in Diener v. Office of Personnel Management, 7 M.S.P.R. 551, 555 (1981), the Board found that an estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.

On the other hand, it has been found that where an appellant has failed to accept facially reasonable treatment because she did not follow her physician’s recommendations to undergo psychological therapy or to take prescribed anti-depressants, such refusal would be a basis for a Federal Disability Retirement application denial.

Thus, the “spectrum” of what is facially reasonable treatment can be fairly discerned.  On the one extreme of the spectrum, is the option of undergoing invasive surgery.  On the other end of the spectrum, is the mandate of following a doctor’s medication regimen.  Everything else falls in between the two extremes.

Throughout, it is always essential to recognize that obtaining the proper medical treatment has the primacy of priority; that at some point in treating one’s medical condition, a Federal or Postal employee may begin to consider whether to file for FERS Disability Retirement benefits, and the importance of obtaining the proper documentation must be addressed; and finally, the significance of evidentiary issues in preparing a Federal Disability Retirement application must be recognized.  Thus, medical treatment is the priority; obtaining the proper medical documentation is of importance; and consideration of evidentiary issues is of significance.  Identifying and recognizing the conceptual distinction between the three will hopefully be helpful for all Federal and Postal employees who are considering filing for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Attorney

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.

Federal & Postal Disability Retirement: A Reflection of Life’s Changes

 

Stress after a medical condition in the Federal workplace

Filing for Federal Disability Retirement through one’s agency, and ultimately with the U.S. Office of Personnel Management, whether the Federal employee or the U.S. Postal Worker is under FER, CSRS or CSRS-Offset, is both a reflection of life’s inevitable vicissitudes, as well as a timed indicator for needed change.  It can be considered as one of life’s major traumas, as it combines a compendium of a tripartite composite: A medical condition; impact upon a significant component of one’s life — that of one’s employment, career and vocation, which one worked so hard to achieve; and a necessary alteration of employment leading to financial instability, downsizing and economic turmoil.

Stress becomes an inherent part of the entire administrative process in filing for Federal or Postal Disability Retirement benefits.  It is a time when stress is least tolerable, because of the impact of the medical condition upon one’s life and capacity to work; and yet, it seems that the unavoidable adage of old can never be averted: When it rains, it must by necessity pour.

In a distant, hypothetical manner of thinking, one expects that as one grows older, medical conditions will begin to impact one’s capacity and capabilities, both physically and in cognitively dysfunctional ways.  But there are many Federal and Postal employees who find that a medical condition impacts one’s ability to perform one or more of the essential elements of one’s job, when one is merely in their 30s or 40s.  Stressful careers have a tendency to take their pound of flesh.  From Law Enforcement positions, to cognitive-intensive duties required of Budget Analysts, Revenue Agents, IT Specialists; to FAA Air Traffic Control Specialists; to the constant and repetitive physical work required of Letter Carriers, Distribution Clerks and Supervisors and Postmasters; the level of stress, both physically and mentally, placed upon Federal and Postal workers who have been asked to do more with less in this continuum of a slowed economy beset with a pubic which mistakenly believes that Federal and Postal workers are overpaid and underworked; the resultant consequential impact is the exponential rise in progressively deteriorating disabilities which call for the necessity of filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether the disabled Federal employee or the injured Postal worker is under FERS, CSRS or CSRS Offset.

Percentage of Federal Disability Retirement approval:  Do you even have a case?

Like the praying mantis whose bright green sheen in early spring metamorphosing into the brown of mortal prefacing, the writing is on the wall for the Federal employee or the U.S. Postal Service worker as to what forebodes for the future.  One is often asked in the initial telephone consultation as to whether a case is “viable” or of ascribing with reasonable accuracy the percentage chances in winning a Federal or Postal Disability Retirement case with the U.S. Office of Personnel Management.  But in the very question is presupposed the implicit answer, and the unavoidable starkness of truth — again, no more and no less obvious, than the changing colors of the praying mantis:  What choice does one have?  You can either: stay the course; resign and walk away with nothing; or file for Federal or Postal Disability Retirement benefits through the U.S. Office of Personnel Management.

There are stories aplenty about abusing the misusing “the system”; and in the crass world of media outlets which fail to make the differentiating distinctions which make for the bifurcation between truth and falsity, the “disability” claims which are most prevalently and prominently featured have to do with Social Security Disability claims, and not with Federal employees and U.S. Postal workers who file for Federal Disability Retirement benefits through FERS.

What does it take to get your application approved?

FERS Disability Retirement is merely one component of an employment package which every Federal and Postal employee, signed on to when he or she became a Federal employee or U.S. Postal Worker.  It requires, by a preponderance of the evidence, a showing that (A) The Federal or Postal Worker who is under FERS has a minimum eligibility-satisfied requirement of 18 months of Federal/Postal Service (or if under CSRS, 5 years, which is presumably met); (B) that he or she has a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job while in Federal or USPS Service; and (C) that no reassignment at the same pay or grade can be found, or alternatively, that the medical condition cannot be reasonably accommodated such that the Federal employee or the U.S. Postal worker can continue to perform all of the essential elements of one’s job. As to the medical condition itself, a “built-in” safety hatch exists which generally precludes abusive filings in FERS & CSRS Federal Disability Retirement cases, as opposed to SSDI: the necessary medical reports and records must, in most cases, come from a treating doctor of reasonable duration, and single-purpose disability determinations are taken into consideration with skepticism (excepted examples: a Functional Capacity Evaluation, a Neuropsychological test, and similar specialty-based studies).

Remember:  OPM Disability Retirement is a benefit you’ve already paid for

Filing for a benefit which is merely a part of one’s employment package can hardly constitute or be considered an “abuse of the system”; rather, it is the accessing of a promise made, a word kept, and an administrative process proven when the coalescence of facts, circumstances, and life’s changes require the bureaucratic mandates of filing.  Never has the undersigned author encountered a Federal or Postal worker who “wanted” to file for Federal/Postal Disability Retirement benefits; rather, with great reluctance, it is life’s unexpected and unexplainable changes which have resulted in the necessity of filing for Federal Disability Retirement benefits, whether the Federal employee or the U.S. Postal worker is under FERS, CSRS or CSRS Offset.

In recent times, there has been a major cultural shift in how people, circumstances and the fate of individuals have been described, excoriated and represented in media outlets and public venues; of life’s cyclical karmic characteristic of a lottery and the unfairness of wealth distribution; and the magnum opus of societal disparity: those who access “the system”, as opposed to those who must pay for it.

But in the end, a society must be judged by how it treats its most vulnerable citizenry, and in keeping the word of its social contract.  Federal Disability Retirement is a benefit accorded to all Federal and Postal employees through the law and a promise upon legislative cogency: Recognizing that the important work of a Federal employee or a U.S. Postal worker can only tolerate a certain level of saturation of stress, repetitive physical repercussions, or the combination of cognitive and physical pain, the Federal Government has conceded that a disability annuity is appropriate where the manifestation of a medical condition impacts one’s ability to perform the essential elements of one’s job, and where no reasonable accommodations are possible, or where reassignment to another position at the same pay or grade cannot be offered; this is thus a response to an expectation that one of life’s changes should be addressed, if and when needed.

The time to make a life decision

And like the praying mantis whose colors may metamorphose as the season brings on a foreboding of mortality; so the Federal employee or the U.S. Postal worker who suffers from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, must make choices and reflect the unexpected vicissitudes of life’s changes, whether wanted, desired, or never intended.  For, as fate is merely the autumn of a lifetime of summer’s end, so the disabled Federal or injured Postal employee who sees the writing on the wall by reflecting upon the impact of one’s medical condition upon the capacity to continue in the Federal or Postal position, Federal and Postal Disability Retirement through the U.S. Office of Personnel Management must be a consideration of reflecting upon life’s inevitable changes, as the praying mantis neither prays for the fate of change, but merely appears to do so, in our anthropomorphic way of thinking and believing.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Medical Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his Federal Disability Lawyer website.