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.
We have a real problem with Physician’s Statements from doctors who are too busy to spend time writing them and unwilling to go out on a limb to say it like it really is. So you have to work around this.
When it comes to doctors, you have to…
Following up on my earlier post about getting fired for misconduct:
If you are fired for misconduct, that does not mean your agency can wash its hands of you and not cooperate with your claim for Disability Retirement. Your agency is still required…
Does OPM ever deny applicants the right to reconsideration? What do I do if that happens to me?
ANSWER: Yes. Until recently, any time OPM rejected a disability retirement application, it provided an initial decision from which an applicant could request reconsideration. Reconsideration provides an opportunity to point out to OPM its errors, thereby giving OPM a chance to correct those errors before making a final decision. In a process rife with errors, reconsideration is often critical to affording applicants due process of law.
Recently, OPM implemented a "pilot program" in which some applications are randomly short-circuited and sent directly to a final decision. These cases are foreclosed from the critical due process reconsideration step. If you have the misfortune of having your case randomly assigned to the "pilot program," your sole remedy will be a hearing at the MSPB, and under its rules you must start all over from square one in proving your entire case to a judge.
OPM wants to speed up its processing by sending some applications directly to a final decision, disallowing reconsideration. That would be fine so long as the only applications that are denied reconsideration are those that would be unlikely to benefit from reconsideration. This would require that OPM develop carefully drawn standards to determine which cases should be short-circuited and which should not. Unfortunately, OPM has no standards whatsoever for depriving applicants of their right to reconsideration. OPM denies this right by selecting cases at random. Random selection may be great for scientific experiments, but not for safeguarding people's rights.
This "pilot project" resulted in a recent disaster when a government lawyer who was disabled by AIDS dementia was erroneously denied disability retirement, and then was denied the right to reconsideration because his case had been randomly selected for the project. OPM's denial was based on several blatant errors, but once this man's case was randomly tossed into OPM's pilot project, his only recourse was an appeal to the Merit Systems Protection Board where he had to start all over again and prove his entire case to the judge. Despite the fact that he was himself an attorney, his dementia, together with the technical nature of MSPB proceedings, required him to retain me.
This particular case had a happy legal ending when OPM's representative recognized that his agency had committed a serious error. He prevailed on OPM to award my client disability retirement, and thereby avoided an MSPB hearing. Unfortunately, my client was not reimbursed for the legal fees that he had to expend to win his case. Although I applaud the efforts of the OPM representative in this case, I fault OPM for making serious errors in its decision and then eliminating the reconsideration process that would have allowed my client to correct those errors.
It is hard to understand how OPM could deny disability benefits to someone disabled by such a devastating illness as AIDS dementia, but it is even harder to understand how it could design a program that would randomly deprive such an obviously disabled person of the traditional right to reconsideration and force him into a costly and time consuming appeal. Hopefully, OPM will abandon the "pilot project" in its current form.
Which diseases and injuries qualify for disability retirement?
ANSWER: All diseases and all injuries qualify for disability retirement, including phobias, depression, chronic pain, allergies, chemical sensitivities, drug addiction, and alcoholism.
What are the specific questions that OPM will ask me?
ANSWER: OPM requires that you fill out an "Applicant's Statement." A cursory review of the questions asked demonstrates OPM's interest in deficiencies in performance, attendance, and conduct. To the extent possible, your responses should be directed to those issues. The following is a composite of the four most critical questions asked of both FERS and CSRS employees:
Describe how you are deficient in your job in respect to performance, attendance, or conduct.
Describe your medical condition(s) (i.e., disease or injury) and how it interferes with performance of your duties, attendance, or conduct.
Describe any other restrictions on your activities imposed by your medical condition(s) (i.e., disease or injury) which you believe should be considered in determining your ability to perform your job in your agency and in other positions in your agency for which you may otherwise be qualified.
What efforts have been made by your agency to change your work area or your job to make it possible for you to perform useful and efficient service in your position or another position?
The Applicant's Statement is the only government form that provides you with an opportunity to express the severity of your disabling symptoms. As you can see from the few questions on the form, it fails to elicit the information that OPM really needs in order to assess your case. In my practice, I have developed a far more detailed questionnaire that allows my clients to provide OPM with the information that it really needs to make a decision. Unfortunately, there is no guarantee that they will read it. But there is no guarantee that they will read their own form either.
Remember that your responses on the Applicant's Statement may be useful not only to OPM, but also to your physician who will draft the Physician's Statement (Form SF 3112). Your doctor may have heard your complaints over and over again, but nothing is more effective than having them detailed in writing while your doctor is drafting the Physician's Statement.
Here's an example of the importance of detailing your symptoms to both OPM and your physician. Tests may demonstrate that you have a medical condition known to cause fatigue. However, the fact that you suffer from this particular medical condition means nothing to OPM, and may not in itself remind your doctor of your particular disabling symptoms. Through your answers to these questions, you can make the point that in your particular case, your medical condition causes fatigue, and that your fatigue is so bad that it precludes you from getting anything accomplished at work, because (you might explain further) after being at the office for two hours you can no longer stay awake, and when you are awake, you can't remember from one moment to the next what you just read on the computer screen. This tells everyone much more than just stating that you suffer from fatigue.
I have 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.