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 Contract Physicians, many of whom are military doctors with specialties such as trauma surgery, reconstruction, diving or flying related conditions, etc., routinely advise adjudicators on cases well outside their areas of expertise. What does a N…
OPM DISABILITY RETIREMENT APPLICANTS ARE ROUTINELY CHEATED OUT OF DISABILITY RETIREMENT BENEFITS BY ADJUDICATORS WHO ARE UNTRAINED IN THE RELEVANT LAW AND MEDICINE
I have evidence that OPM denies disability retirement benefits based on a bogus law—…
Who decides if I have a right to collect disability retirement?
ANSWER: OPM decides. If it turns you down in a final decision, though, you can then appeal to the Merit Systems Protection Board (MSPB), and the Board will decide. Your agency does not make that decision (unless you happen to work for OPM).
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.