It is always a puzzle and a disturbing bit of news to find that a doctor who has performed surgery, who has prescribed multitudes of pain or psychotropic medications, has prescribed multiple diagnostic tests and have the patient undergo test after test, physical therapy sessions, clinical evaluations, etc. — and at the end of it all, to have the “final straw” which severs the patient-doctor relationship to be a refusal to provide a medical narrative report in support of a Federal Disability Retirement application.  Think how preposterous that sounds.  Thus, it is not enough to get some vague support when the issue is first broached; no, what is needed is the same level of commitment from the doctor, as when he or she first said to you, “Yes, I am going to treat you for your medical condition…”

Sincerely,

Robert R. McGill, Esquire

From the applicant’s perspective, it is important to understand that the person who is considering filing for Federal Disability Retirement benefits has been establishing and fostering that relationship, and this is important to see.  Those many years of going to the doctor, speaking to him or her about the most personal of problems — one’s medical conditions — is part of what creates that special bond identified as a “patient doctor relationship”.  It is a relationship which has been created and fostered through interactive needs, and that relationship should be strong enough to ask the doctor, when the time and need comes to fruition, for a medical report in support of one’s Federal Disability Retirement application.  So, at this point in the issue, as one is contemplating Federal Disability Retirement, does your interaction with your treating doctor constitute a “relationship”, or is it merely an economic exchange of goods and services?

Sincerely,

Robert R. McGill, Esquire

What to do about it?  To try and place the doctor at ease by explaining the process in as direct, simple and concise manner as possible; then to tie the importance of the request for a Medical Narrative Report to the overall treatment plan for the patient — you.  To have an attorney involved can further ease the natural anxiety of a doctor — but it helps to have the client/patient forewarn the doctor as to the role and involvement of the attorney.  Attorneys and doctors are “natural enemies” (i.e., attorneys sue doctors; doctors hate to be sued; ergo, doctors have a natural tendency to dislike lawyers).  If the patient/client, however, approaches the doctor and explains that the lawyer who is representing him or her is there to explain the process, to guide the doctor in the preparation of the entire packet, including giving guidance to the doctor in formulating a medical narrative report, then the tendency towards anxiety and reluctance to assist in a Federal Disability Retirement application can be lessened and overcome.  Tendencies are there to be recognized, then to be adjusted in order to achieve a positive outcome.

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

Obviously, there are multiple questions which I ask as a follow-up; and, indeed, the question as to the status of the client/applicant requests a professional opinion about the patient — but implicit in that question is also a rather personal one.  It goes to the heart of who the patient/applicant is, and what the doctor believes about this particular applicant/patient.  For, to resolve any doubts about the underlying motive of the patient is not only important to the Administrative Judge in a Federal Disability Retirement application; it is equally important that the doctor is comfortable in his own mind, as to the clear and honest intention of his patient.  Conveying that comfort from the voice of the treating doctor to the ears of the deciding Judge, is no small matter.

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

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

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

In a Federal Disability Retirement case under FERS or CSRS, is it necessary to obtain the medical opinion of each and every doctor for each and every medical condition listed on the Applicant’s Statement of Disability (SF 3112A)?  To put the question in another way, Must there be a one-to-one correspondence between the medical condition listed or described, and the doctor who is specifically treating the medical condition? 

Certainly, in today’s world of medicine, where specialization is the key to treatment because of the complexity of each field of medicine and the successful treatment of diseases and medical conditions, it has become a fact of life that patients are “referred out” to various specialists.  Thus, the Primary Care Physician is often merely the “gate-keeper” of referrals, coordinating the medical treatment of a patient by overseeing the referrals to various specialists who treat various medical conditions. An applicant for Federal or Postal Disability Retirement benefits under FERS or CSRS who must prove, by a preponderance of the evidence, his or her eligibility for Federal Disability Retirement benefits, must submit substantiating medical documentation to prove his or her entitlement.  As with all such questions, the answer is, “It depends”.  A one-to-one correspondence is not necessarily required; where helpful, of course, the referral specialist’s medical opinion should be used.  However, one should never underestimate the importance and force of the coordinating physician — the Primary Care Physician himself/herself.

Sincerely,

Robert R. McGill, Esquire

It is rare that a treating doctor fails to help, or refuses to help.  Yes, “getting involved” in a “legal case” is not only a headache, but for a doctor, it is often an intimidating experience, and many doctors have become “gun shy” over the years because of the negative experiences which have befallen them when getting involved in the legal side of his or her medical practice.  Look at it from the doctor’s viewpoint.  While one may fully understand the distinction between Federal Disability Retirement issues under FERS or CSRS, and those “other” issues (i.e., OWCP/FECA Department of Labor cases, or personal injury cases, etc.), from the treating doctor’s viewpoint, they are all “legal” issues.  And, from the doctor’s perspective and prior negative experiences, once you stick your neck out on behalf of a patient and get involved in a case, one never knows what it may lead to — court, depositions, cross-examinations, etc.  But there is indeed a difference and a distinction between those “other cases” and filing for Federal Disability Retirement cases.  To soothe the feathers of a doctor is important; to take the time to explain the process is vital; to make the job of the doctor as efficient and non-threatening is the key to a successful Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

It is one thing to provide an explanation of the process of filing for Federal Disability Retirement benefits under FERS or CSRS to the treating doctor; that is simply not enough.  Providing an explanation “disarms” the health professional.  While such explanation and helping the doctor to understand the process is certainly helpful, ultimately the treating doctor needs more than information; he or she needs guidance in order to “arm” one’s self with the tools necessary to help the patient. 

Fortunately, most doctors are professional, compassionate, and eager to help.  Writing medical reports are an administrative aspect of the practice of medicine which is not only a headache, but takes the doctor away from the valuable and limited time for actually treating the patient.  It is therefore important for the Federal or Postal employee who is applying for Federal Disability Retirement benefits under FERS or CSRS to “arm” the doctor with the necessary tools needed in order to successfully prepare, formulate and construct a sufficient and effective narrative report in order to “pass muster” with the Office of Personnel Management.  The first and primary rule in helping to prepare the doctor is to always protect and maintain the integrity of the doctor.  Truth in every endeavor, and especially in filing for Federal Disability Retirement benefits under FERS or CSRS, should be the ultimate guiding light.  How that truth is stated, however, is where the guidance, tooling and “arming” comes into play.

Sincerely,

Robert R. McGill, Esquire

How can I answer such questions?  In the course of a Hearing before an Administrative Judge at the Merit Systems Protection Board, I have had family doctors testify who were unbeatable, and certainly overwhelming in his or her expertise and medical knowledge.  The years of experience in having to deal with thousands of patients, and confronting and treating medical conditions of every imaginable sort — and making decisions (including referring patients to “specialists” for concurring or confirming diagnoses and opinions) involving the “whole” patient’s medical condition and treatment – came through with such persuasive force and overwhelming confidence, that it was indeed the “family doctor” or the “country doctor” who ruled the day. 

Similarly, I have had the “specialist” testify in cases, who barely were able to coherently describe the connection between the medical condition and the essential elements of the job.  And, of course, sometimes the opposite is true — good surgeon, mediocre family doctor; mediocre specialist, great country doctor.  As in all things, in Federal Disability Retirement applications under FERS or CSRS, it is not so much that the credentials matter, as the character, experience, and “heart” of the doctor who treats the patient.

Sincerely,

Robert R. McGill, Esquire

Most doctors are unfamiliar with the process of obtaining Federal Disability Retirement under FERS or CSRS, but are more often than not familiar with the process, procedures, and correlative headaches associated with Worker’s Comp benefits.  Because of this greater familiarity, there is often an underlying suspicion that comes along with it — that rendering any medical opinion must be accompanied by some underlying justification and “objective” methodology of supporting the medical opinion.  And this is understandable. 

In this day and age of malpractice lawsuits, of questioning every test, procedure and opinion, it is rare that a medical doctor is comfortable and secure in rendering a medical opinion about one’s ability or inability to perform one or more of the essential elements of one’s job, based solely or primarily upon clinical examinations and reviewing of diagnostic results.  Enter the FCE — the “Functional Capacity Evaluation”.  The FCE provides “cover” for a doctor’s medical opinion, because the doctor can point to an apparently “objective” evaluation — a third party rendering a number of physical tests, exertional exercises, physical capacity movements, etc., which serve to provide a framework from which a doctor can render an “objective ” opinion.  Why it is accepted that pointing to someone else’s evaluation — as opposed to relying upon one’s own clinical examinations, reviewing one’s history, reviewing diagnostic test results, etc. — is any more valid, is a great mystery.  But if it makes the doctor feel more comfortable, then a person considering filing for Federal Disability Retirement benefits under FERS or CSRS should go ahead and agree to submit to an FCE, if that is what it takes to get the doctor on board.

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

Often, a question is asked whether a medical narrative report which is prepared for submission to the Office of Personnel Management can be used for submission for other “similar” benefits.  The short answer is, “It all depends”, but the long answer is that, in most cases, one must be very cautious.  When I represent a Federal or Postal employee under FERS or CSRS, one of the first steps in preparing a viable case is to request of the treating doctors a detailed medical narrative report.  One must understand that the treating doctor has, generally speaking, next to no idea as to the legal criteria that must be met under FERS or CSRS.  Furthermore, the treating doctor has no legal knowledge as to the differences between private disability insurance policies, State, Social Security, OWCP or FERS & CSRS.  It is the job of the Attorney to make sure and guide the treating doctors as to the criteria which must be met as to the particular and specialized field for which the medical narrative is being prepared.  This must be done with care, and with detailed guidance.

Sincerely,

Robert R. McGill, Esquire

Doctors are medical providers.  They are in the practice of medicine because they believe in applying the science of medicine to help their patients get better.  Helping someone obtain Federal Disability Retirement benefits under FERS or CSRS is not part of “practicing medicine”.  Yet, in many ways, it is.  It is part of practicing medicine because, to allow the patient to continue to work in a job which he or she cannot perform, will only exacerbate and worsen the medical condition. 

Further, doctors never like to “disable” their patients.  To counter this medical opinion, it is important to clearly inform the doctor what the process of Federal disability retirement is and is not.  It is the job of the attorney hired to represent a Federal or Postal worker to obtain disability retirement benefits, to clearly and cogently explain the entire process to the treating doctor.  That is what I do, at the very start, in representing my clients.

Sincerely,

Robert R. McGill, Esquire

The “patient” needs to approach the doctor with sensitivity. It is probably not even a good idea to talk about anything beyond the first stage of the process — instead, the focus should be about how “support” for a disability retirement application is actually part of the rehabilitation and healing process of medical treatment. For, ultimately, a disability annuitant under FERS or CSRS is not asking to be “totally disabled” by the doctor (and, indeed, most doctors do not want to release their patients into the retirement “pasture” of full disability); rather, it is simply a medical support of reasoning that a particular patient is no longer a “good fit” for a particular kind of job. Don’t scare the doctor off with a view of the “long process”; rather, the initial commitment is all that is needed — for the first stage of the process.

Sincerely,

Robert R. McGill, Esquire

This presents a peculiar problem for a potential disability retirement applicant, because in order to obtain Federal Disability Retirement benefits under FERS or CSRS, an applicant must have a doctor’s narrative report which delineates certain issues, addresses certain issues, and renders certain opinions.

Thus, the crucial question becomes: How does one approach a doctor and convince him or her that preparing a proper medical report is an integral aspect of treating the patient? The answer: It must be done with diplomacy, sensitivity, caution, guidance, and understanding, all bundled into one. Above all, it begins with a relationship — a patient-doctor relationship that has been formed over many, many years. And, indeed, that is the requirement under the case-laws at the Merit Systems Protection Board governing disability retirements — that those opinions rendered by treating doctors of long duration are accorded greater credibility than single-examination doctors. And it all makes sense.

Sincerely,

Robert R. McGill, Esquire

Think about it this way: Disability retirement has to do with proving that, because of a medical condition, an employee of the Federal Government is no longer able to perform one or more of the essential elements of his/her job. This simple statement, when broken down, actually has a number of limitless components: What is the job? What are the specific elements? What are the medical conditions? What are the symptoms? How do the symptoms impact the person? Does it require medications? Does it require surgery? Are there other treatment modalities? What specific symptoms impact which specific job elements? And on and on.

Thus, these questions and the answers to such questions can normally be answered only by a treating physician — one who has, over the course of a long tenure of treatment, come to intimately know the patient. At the same time, think of the following issue: A doctor whose primary source of income being to write up “disability determinations” for individuals, and whose name repetitively appears in the Office of Personnel Management — that doctor’s reputation will quickly become questioned. The issue of an effective medical narrative has an inherent component: The credibility of the writer (the doctor), and credibility is usually determined by the tenure of the patient-doctor relationship. Are there exceptions? Absolutely. As with everything else in life, credibility can always be established with the truth — for instance, if a recent change in doctors occurred because of a move, the doctor can simply state that fact, refer to prior medical records reviewed, and move on to the substance of the opinion. Alas, credibility is what always counts.

Sincerely,

Robert R. McGill, Esquire

Sincerely,

Robert R. McGill, Esquire

OPM’s Medical Questionnaire

At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence — that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully — is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.

Some basic rules in responding to OPM’s Medical Questionnaire:

Rule #1: Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.

Rule #2: Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it — why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.

Rule #3: Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations — one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.

Finally, Rule #4: Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”

Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.

Second Issue: Accommodations

Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “’subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties.” Id., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.

The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, 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.” In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term ‘vacant position’ in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position. A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” Id. at p. 1359

Further, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.” Id. at 1360.

Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.

I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired — a right — in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future — one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways: (1) view my website at www.FederalDisabilityLawyer.com; (2) email me at federal.lawyer@yahoo.com; or call me at 1-800-990-7932.

Sincerely,

Robert R. McGill, Esquire