Podcast #3: A Good Doctor is the Real Key to Winning:
Transcript edited for clarity:
How do you know if you are eligible for Disability Retirement?
There is a legal standard, but you probably would have a difficult time figuring out if you meet it on your own.
Everyone who calls me thinks they meet the standard – otherwise they wouldn’t be calling! Most people think they will be able to win, and without a lawyer on top of that.
Now, that could be true for a small number of people. If someone is paralyzed, have terminal cancer, or something like that, where it is 100% clear cut that they cannot do their job duties, then they probably don’t need me or a referral to another lawyer.
So what’s the standard?
The details for the standard are laid out in the blog, but for now I will say this. The standard is that you have to be unable to perform at least one critical element of your job. You have to prove that a disability makes you unable to “satisfactorily” perform a critical element of your job.
So if your work is unsatisfactory or you are unable to make it to work, then that would meet the standard?
Exactly. Unless you are lazing around watching TV!
You have to demonstrate that you cannot make it to work due to your medical condition.
Additionally, a disability must be expected to last at least one year.
And how would you demonstrate that?
Through a doctor. More specifically, through the applicant’s statement and the physician’s statement (two forms on the OPM Disability Retirement Application).
Now, writing a good applicant’s statement is a good idea, but it is basically worthless compared to a physician’s statement.
What wins a disability retirement case is what a doctor says.
When I was a kid, my dad took me to restaurants every now and then. And the way to get to the front of the line at the restaurant was to put “Dr.” in front of your name. So my dad always went by Dr. Friedman and we were always seated first.
It’s not so different at OPM. The doctor is treated better than everyone else.
So should you lie and say you are the doctor?
You should never lie! But being a doctor isn’t as good as being the federal employee who has a doctor who writes you a great Physician’s Statement!
On the other hand, if you are being treated, but you don’t have a doctor who is ready to talk about your treatment, talk about your disability, and discuss how despite your treatment, you still cannot get over your disabling condition and perform your job, then you are not going to win.
You can say all you want about being sick or disabled, and it won’t matter. You need the doctor to do it.
You need evidence.
If you want to talk to Harvey about your situation, fill out the form at the right, send him an email, or give him a call. As a semi-retired lawyer, he is here to talk with you and help as best he can – think of him as a friend you drop in on for advice.
OPM’S DISABILITY RETIREMENT DIVISION RARELY RESPECTS AN APPLICANTS LEGAL RIGHT TO BE REPRESENTED BY COUNSEL THEY REFUSE, EVEN THOUGH IT IS OPM’S POLICY TO RESPECT THE RIGHT TO COUNSEL.
Every client of mine signs a “Designation of Representati…
The Law Requires That In Deciding Whether Or Not You Are Entitled To Disability Retirement, OPM Must “Weigh” The Evidence, As It Would On A Scale. If The Evidence In Your Favor Weighs More Than The Evidence Not In Your Favor, You Win And…
ANSWER: The disabling symptoms matter most, although diagnosis of a fatal or very serious disease can certainly be expected to have some impact on the disability decision. For instance, people with cancer do not automatically qualify for disability retirement unless they are presently suffering from the disabling symptoms of that disease. On the other hand, you don't have to suffer from any particularly serious disease, or even from any diagnosable disease in order to qualify for disability retirement. You only need to make the appropriate showing that you are suffering from disabling symptoms, even if the cause of the symptoms is unknown.
The rules are tough in not allowing a mere diagnosis to serve as a ground for disability retirement. But the rules are also lenient in permitting you to qualify for disability retirement on the basis of disabling symptoms which may appear to be minor or which effect you only on particular occasions. A person whose job requires travel by plane on occasion, but who is unable to fly on account of chronic back pain may well be eligible for disability retirement, even if an asymptomatic cancer patient is not eligible.
ANSWER: Probably not very well. Most will not be happy, for a variety of reasons. Here are some of the reasons often expressed by physicians who are asked by patients to help them get disability retirement:
"These questions OPM asks are ridiculous!"
It's absolutely true that at least some of the five questions that doctors are asked to answer on the "Physician's Statement" are either absurd, unintelligible, or medically irrelevant. In fact, the degree to which the physician should consider each and every question varies with the nature of the case. In general, the more subjective the symptoms, the more carefully each of the questions should be dealt with. Unfortunately, this is a difficult judgment call for physicians who don't have any direct experience with OPM's disability retirement program. A primary task of the attorney is to encourage and assist the physician in this task.
"I can't possibly charge for all the time its going to take me to answer these questions!"
Not unreasonably, physicians want to get paid for their time and work. Physicians are often unsure as to how to charge patients for the sometimes great amount of time and work required to properly prepare a "Physician's Statement." It does not fall easily under a predetermined diagnostic code on some form, and insurance will often not cover it. The remedy is to assure your physician that you will pay fully for all the time involved that is not otherwise covered.
"No one will ever believe that this patient is disabled!"
Many doctors, just like most of the rest of us, tend to define a disabled person as some sort of basket case. Doctors are concerned that they will be perceived as dishonest in going to bat for a patient who doesn't appear to fit that picture. The physician needs to come to terms with the disability retirement law, and how it differs from other laws such as workers' compensation. Doctors who are not experienced with disability retirement for government employees do not understand that the program does not require total disability, and it even permits you to work at another job while collecting. But quite truthfully, this is the type of lesson best taught by an attorney with sufficient experience to answer the inevitable questions that the physician is going to raise. If necessary, an attorney can assure a physician that the patient is a proper candidate for disability retirement.
"I'm going to end up in court on this one!"
Most physicians dread the thought of being hauled into court as a witness in any sort of legal matter, let alone in what they perceive as some difficult-to-prove "subjective" symptoms case. Not to worry! Disability retirement cases never make it to court, and rarely ever make it to a hearing at the MSPB. One way to dispel the physician's anxiety on this issue may be by providing a copy of this book as part of your campaign to enlist wholehearted cooperation. If that doesn't work, have your doctor phone me.
I have focused on represented Federal government employees and Postal workers seeking OPM Disability Retirement for a long time. I also represent them in agency leave problems such as AWOL, FMLA, LWOP, etc. Leave problems often come along with being sick and disabled. I have stuck to this area of the law for more than 30 years of the 50 years I have been a lawyer.