The topic of today’s post is whether obesity or morbid obesity may make you eligible for FERS or CSRS Disability retirement through OPM. Obesity is a documented and diagnosable medical condition.
However, in the world of Federal Disability Retirement applications, OPM employees and MSPB administrative judges still cling to the prejudice that obesity is a choice-based situation: that the postman or federal employee who is morbidly obese is to blame their condition. For these reasons, the OPM and MSPB seem to keep individuals who are obese or morbidly obese at a higher level.
Doctors and experts in medicine have identified a number of medical conditions, as well as physical factors and genetic influences that can make a person obese. Some of these are: obesity, including: pituitary tumors, pituitary disease, craniopharyngioma, pseudohypoparathyroidism, decreased metabolism, Rader-Willi syndrome, Frohlich syndrome, underactive thyroid gland, as well as certain types of brain tumors, chromophobic adenoma and many more.
Despite advances in medical science, which show that obesity is not caused only by overeating, MSPB administrative judges insist on their archaic legal analysis in disability retirement appeals filed by federal or obese federal workers.
Here’s how it works. The MSPB administrative judge will assume an incorrect premise: The federal employee or postal worker diagnosed with obesity simply eats too much or has made a personal choice to become obese.
The MSPB administrative judge follows the erroneous premise to his logical conclusion: The federal worker or postal worker will have to prove that they either: a) used medical suggestions for weight reduction exercises and programs and the suggestions did not work, or b) that medical suggestions for exercise and weight reduction were medically not advisable. This is the legal equivalent of the MSPB that requires diabetics to prove that they have participated in a sugar reduction program, and has failed.
For obese or morbid obesity, OPM and MSPB administrative judges believe that disabling obesity “… did not stem from the disease or injury itself, as required by law, but from voluntary failure or refusal to provide available corrective or remedial measures to take. “
A momentous decision hinted that extreme measures, such as “modified fasting” or “bypass surgery”, would be too drastic to expect a disabled applicant to be subject to a disability. The administrative judge did not say “would” be too drastic – it just “could” be too drastic.
There are two ways that an obese federal worker or postal worker seeking benefits from OPM for disability retirement can approach this judicial and / or institutional bias against obese or morbidly obese.
The first, and I think best, is to eliminate the possibility that the Office of Personnel Management or the Merit Systems Protection Board may come to the wrong conclusion. Talk to your treating physician and leave him or her a letter in the Federal disability pension application one or more of the following:
1) Weight reduction programs and fasting and exercise were medically advised, but were unsuccessful despite the patient’s efforts;
2) Weight reduction programs and fasting and exercise were not medically recommended and were not part of the patient’s medical treatment plan
3) Weight reduction programs and fasting and exercise would have actually harmed the patient.
One or more of these statements from your treating physician should prevent OPM or the MSPB from applying the institutional bias against obese.
The second way, and this is for the warriors out there, who love long lawsuits and lengthy legal battles that take years to resolve. Fight the institutional prejudices of OPM and MSPB. Hire a lawyer who knows the bias, is there for the long haul, and see if you can overturn the MSPB precedent (or at least get a decision that makes it clear that the obese has no affirmative duty to MSPB and OPM that they followed weight reduction treatment plans before they were entitled to disability benefits. Cases in the MSPB are very fast, the law is very slow, and it will take a long and concerted effort to resolve the MSPB’s institutional bias against obese or sickly obese.
While other federal and USPS workers may be denied retirement disability if there is a record of their failure to follow their medical treatment plans, the obese (and some individuals with mental illness) are the only ones to effectively convince the administrative court that their obesity is not a personal choice, or something that can be resolved by farmers jumping and fasting.