The subject of today’s post is whether obesity, or morbid obesity, might qualify you for FERS or CSRS Disability retirement through OPM.
Obesity is a well-recognized medical condition. Unfortunately, too many MSPB judges view this condition as one that is the “fault” of the person with obesity. Medical experts have identified hundreds of medical conditions, or physical or genetic factors, which can cause obesity, including: reduced metabolic rates, pituitary gland disease, pituitary gland tumors, underactive thyroid, Prader-Willi syndrome, Stein-Leventhal syndrome, Frohlich syndrome, certain types of brain tumors, craniopharyngioma, pseudohypoparathyroidism, chromophobe adenoma, etc., etc.
Despite medical evidence and testimony showing that obesity is not caused simply by eating too much, the MSPB still sticks to an archaic legal analysis of the condition.
Many MSPB decisions in disability retirement cases relating to the medical conditions of obesity or morbid obesity start from a faulty premise – the legal equivalent of a belief that the earth is flat. This faulty premise is that the person with obesity simply eats too much or that obesity is a personal choice. The MSPB decisions follow this faulty premise to its conclusion, often finding that the Appellant failed to take advantage of medical suggestions for exercise and weight reduction programs. As a result, the Judges conclude that the disability for which the Appellant seeks FERS or CSRS Disability retirement “…flowed not from the disease or injury itself, as required by statute, but from voluntary failure or refusal to take available corrective or ameliorative action.” One memorable decision hinted that extreme measures, such as “modified fasting” or “bypass surgery” might be too drastic to expect a disability retirement applicant to undergo.
There are two ways to approach this judicial and/or institutional prejudice against the obese or morbidly obese in the application for disability retirement or the MSPB appeal of OPM‘s denial of FERS or CSRS Disability retirement applications.
The first – and best – way is to take away the possibility that OPM or MSPB can reach the conclusion – prove to OPM or the MSPB that you have attempted to take ameliorative or corrective action for the obesity. Have your doctor certify exactly what treatment plan he or she laid out for the obesity, whether you followed that treatment plan, and whether it had a “corrective” or “curative” effect. All other things being equal, the MSPB or OPM cannot disqualify you from eligibility for disability retirement so long as you comply with your doctors orders and treatment (within reason, as is discussed elsewhere in this blog).
The second is to challenge the prejudice. Like many mental health conditions, obesity is often wrongfully believed to be a function of personal choice. The only way to change bad law is to fight it. Though cases in the MSPB move very quickly, the law moves very slowly, and it will take a long and concerted effort to challenge the MSPB‘s institutional prejudice against the obese or morbidly obese.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
The Law Office of Eric Pines represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirementis denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are obese, or morbidly obese, and would like to discuss your application for federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyerat the Law Office of Eric Pines to schedule a telephone consultation.