OPM Disability Retirement: OWCP Doctors, and Others, Etc.

Can a doctor with whom one has been treating, but one which was obtained through the Federal Employees’ Compensation Act, Department of Labor (FECA/DOL), Office of Workers’ Compensation Program (OWCP), be an effective advocate for one’s Disability Retirement application?  Of course.

Often, however, there is a complaint that the “OWCP doctor” is not very responsive to a Federal or Postal employee’s attempt to approach the question of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.  As FERS & CSRS Disability Retirement is based upon proving by a preponderance of the evidence one’s medical inability to perform one or more of the essential elements of one’s job, it is crucial that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits have a supportive doctor.

While the Merit Systems Protection Board’s expanding case-law holdings continue to reinforce the idea that the most effective advocate in a Federal Disability Retirement case is a “treating doctor”, as such, medical reports obtained through 2nd opinion or “referee” consultations, or via filing for Social Security Disability benefits, may have some limitations on their usage; nevertheless, the weapons of arguing that an “independent” source of medical review also found that one could not perform one or more of the essential elements of one’s job, can be an effective substantive argument.

As for the OWCP-treating doctor, sometimes those forms completed by such a doctor will be enough to meet the eligibility requirements for OPM Disability Retirement — but that is an individual assessment based upon the uniqueness of each case.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Details

Ultimately, it is not the “devil” which is in the details; rather, the details of a Federal Disability Retirement application often determine the success or failure of a case.  

Attention to the details — of coordinating the Applicant’s Statement of Disability with the submitted medical reports and the legal/analytical arguments to be made; of distinguishing between “facts” and “arguments”; of anticipating any issues which an Agency might bring up; of making the determination as to which anticipated issues should be focused upon and preempted (if at all); of whether to utilize collateral sources of documentation, whether they be statements from a denied SSDI application or the ascription and allocation of a Veterans Administration disability rating; whether, if a concurrent OWCP case has generated a Second Opinion or Referee Medical Report; which medical reports to request and submit; which legal and analytical arguments to engage in at the outset; whether or not additional, non-medical but (potentially) supportive documentation should be attached — these are the details which make up for a devilish time.  

In preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS, it is not a question of whether the details make any difference; for the most part, they constitute all the difference.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: OWCP & OPM Disability Retirement

Many calls come in where individuals have been on OWCP benefits for some time; it is, as I often explain, a difficult road to take, let alone stay on.  The compensation is certainly better, and in comparison to what Federal Disability Retirement benefits pay under FERS or CSRS, it can mean the difference between relative financial comfort and hardships.  But the difficulties which people — almost without exception — encounter with OWCP — from the constant harassment, to the threat of cutting off benefits, to repetitive examinations before Second Opinion and referee doctors, etc., makes for intolerable conditions.  Further, OWCP is not a retirement system, as I incessantly and redundantly state; it is a mechanism in which to allow for temporary compensation to be received while a Federal or Postal worker is recuperating from an on-the-job injury.  And that is the key concept — the Federal or Postal worker is expected, in the end, to recuperate and go back to work.  OPM Disability Retirement, on the other hand, is just that — a retirement from the Federal Service, for a medical condition which is expected to last for a minimum of 12 months, but as in most cases, as a permanent condition of the Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Retirement versus OWCP

I still get periodic telephone calls with much misinformation, mixing terms applied to FERS & CSRS Disability Retirement with “Department of Labor Retirement” or Worker’s Comp retirement.  While there are indeed people who remain on OWCP temporary total disability for years and years, OWCP/DOL is ultimately NOT a retirement system.  It is a system meant to pay for injured Federal and Postal workers while he or she is recuperating from an on-the-job injury.  The Department of Labor thus does everything in its power to get the injured worker back to work, by various means:  assigning a nurse to “oversee” the treatment and “progress” of the worker; by sending the injured worker to second opinion doctors to see if there is a medical opinion different from one’s treating doctor; and other means which have nothing to do with the patient’s best medical interests. 

I don’t handle OWCP issues; however, because many individuals who file for Federal Disability Retirement benefits under FERS or CSRS have intersecting OWCP issues, also, I have some “on the job” knowledge of such issues.  Ultimately, a worker must decide between the two systems, although one can file for both benefits concurrently, one can only receive from one or the other — not both at the same time.  

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Problems with the OWCP Paradigm

The problem with basing one’s future stability upon an “OWCP Paradigm”, or “model”, are multiple in nature.  To begin with, you cannot work at another job while receiving OWCP temporary total disability payments.  Thus, while you may be an injured worker, and unable to perform the essential elements of your Federal or Postal job, you may nevertheless be able to be productive in some other capacity, and may be capable of starting a business or working in some other field.  This is true if you are on OPM Disability retirement:  You can go out and get another job, and make up to 80% of what your former position currently pays, and continue to receive your disability annuity.  This is a good deal, in my view, because it provides an incentive to go out and become productive, and to plan for the future. 

Furthermore, OWCP/Department of Labor is notorious for cutting off benefits at the first sign that you are anything less than fully cooperative with their dictates.  OWCP may send you to a “second opinion” doctor who finds that you are “completely recovered”, thereby endangering your Worker’s Comp benefits.  Or, in order to save money, they may dictate to you that you must work as a Wal-Mart greeter, and pay you the difference between a menial job (not of your choice) and what they are paying you.  If you refuse, OWCP may simply ascribe what they believe you can earn, and pay you the difference — or not pay you anything.  While OWCP has procedures for appealing decisions, it is a long and arduous road to take.

These are only some of the problems associated with basing one’s future upon a Worker’s Compensation paradigm.  That is not to say that one should not file for and accept OWCP payments — it definitely pays more, and for a temporary period of payments in order for an injured Federal or Postal employee to remain financially solvent in order to recover from one’s work-related injuries, it is a good program.  As a paradigm for planning for one’s future, however, there is much to be desire.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Initial Federal or USPS Disability Process

Many people get confused when they first consult with an attorney about USPS or Federal Disability Retirement benefits.  Indeed, before consulting with an attorney, an individual who is faced with a medical condition which (1) is beginning to impact one’s ability to perform one or more of the essential elements of one’s position and (2) will likely last at least a year — such an individual should first take the time to research various websites to “get the facts” about Federal Disability Retirement. 

I have had many individuals tell me that they didn’t even know that such a benefit existed; that when they were separated from their U.S. Government gency, the Postal worker or Federal employee was never informed that he or she could file for Federal Disability Retirement.  Unfortunately, ignorance of the law is not a valid excuse; if you don’t file for disability retirement benefits under FERS or CSRS with the Office of Personnel Management within one (1) year of being separated from service with the Federal Government, you will have lost your right to file — forever. 

Furthermore, it is dangerous to “take comfort” in the fact that the Department of Labor/The Office of Worker’s Compensation Programs deemed you to be 100% disabled.  That “100%” disabled status may last a lifetime, or it may last only so long as your particular OWCP caseworker is working on your case.  The next caseworker may take it upon him or herself and decide that, Well, no, perhaps you are not 100% disabled, and perhaps sending you to a “Second Opinion” doctor (who, it just so happens, is receiving about 95% of his or her income expounding such “second opinions”) will result in a medical finding that you miraculously “recovered” and are able to go back to work.  Benefits cut off.  You waited a year or more after being separated from Federal Service to find this out, without having filed for Federal Disability Retirement benefits.  You are then, unfortunately, “out of luck”.  Make sure that you file in a timely manner; make sure that you do not take comfort in being on OWCP rolls.  Don’t forget —  Postal or Federal Disability Retirement is an annuity that you can rely upon as a “base income” for your financial security.

Sincerely,

Robert R. McGill, Esquire

FERS/CSRS Disability Retirement Compared To OWCP

OWCP vs. OPM Disability Retirement

The Department of Labor administers Federal Worker’s Compensation Benefits through the Office of Workers’ Compensation Programs (OWCP). Such benefits are non-taxable, and are paid for temporary total disability, for injuries or medical conditions which result from, or are caused by, a workplace injury. There are many tangential factors which may be added to this basic definition, but for purposes of distinguishing OWCP from the Office of Personnel Management (OPM) Disability Retirement, this definition will suffice. Additionally, generally speaking, OWCP/Federal Worker’s Compensation is not a “retirement system.”

OPM Disability retirement, on the other hand, is a retirement system. As a result of a medical condition which impacts one’s ability to perform the essential elements of one’s job, a person is eligible to retire early, based upon a “medical disability.” A person on OPM Disability Retirement is separated from the Federal Agency, and he or she may “move on” in life, and perhaps start another career (with certain limitations as stated below).

When is it Time to File for FERS/CSRS Disability Retirement?

An individual must file for Federal Employees Retirement System/Civil Service Retirement System (FERS/CSRS) disability retirement benefits with the Office of Personnel Management within one (1) year of being separated from Federal Service – otherwise, the right to be eligible for disability retirement benefits is lost. Do not confuse this with being placed on Leave Without Pay (LWOP), or being out on OWCP for being injured. The clock begins ticking when you are actually separated from service. Most people, however, should not wait until they are separated to file for disability retirement benefits, but rather, should file whenever it becomes apparent that he or she can no longer perform one or more of the essential elements of the job.

Taxable vs NonTaxable Benefits

OWCP benefits are non-taxable. OPM Disability Retirement benefits, on the other hand, are taxed. While receiving disability retirement benefits, a person may undertake a job search, accept another position, and earn up to 80% of what his or her former position currently pays. Individuals receiving OWCP temporary total disability may not work at another job – period. Here is a sample scenario using OPM Disability Retirement rules:

A worker’s average salary for 3 consecutive years totals $50,000. The individual goes out on disability retirement, and after the first year (in which he would receive 60%, or $30,000), he is eligible to receive an annual annuity of 40%, or $20,000. The worker then applies for and accepts a job in the private sector. The worker can accept a job that pays up to $40,000 per year (80% of the current salary), and still be eligible to receive the $20,000 per year disability annuity.

The 80% Rule Increases Over Time

The rule is “80% of what a person’s former job pays currently.” If 5 years from now, a person’s former position pays $60,000 per year instead of $50,000, then he can make up to $48,000 per year at the job, because 80% of $60,000 is $48,000.

Filing for Disability Retirement while on Workers’ Compensation

It is often not a bad idea for those who are receiving OWCP benefits to remain on OWCP for as long as they can stand it (i.e., the persistent harassment, the constant oversight by so-called “2nd opinion doctors”, etc.) — but to always have the FERS/CSRS disability retirement annuity approved as a back-up source of income. Individuals may file for disability retirement concurrently while on OWCP — but you simply cannot collect from both at the same time (See 5 C.F.R. Sec. 844.105, “Relationship to workers’ compensation. (a) Except as provided in paragraph (b) of this section, an individual who is eligible for both an annuity under part 842 or 844 of this chapter and compensation for injury or disability under subchapter I of chapter 81 of title 5, United States Code (other than a scheduled award under 5 U.S.C. 8107(c)), covering the same period of time must elect to receive either the annuity or compensation.”).

When OWCP terminates payments (and there is a very good chance that this will happen at some point in the near future), it is a wise option to have your disability retirement benefits approved, but held in an inactive status. Federal workers have every right to elect one benefit over the other. Indeed, if you wanted to, you are allowed to go back and forth between OWCP and FERS/CSRS disability retirement.

As a secondary issue on this matter, a closer look at 5 U.S.C. Section 8106, paragraph (c) (2), (OWCP) on “partial disability” compared with the definition for disability retirement reveals: that “partially disabled employee who refuses or, neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.” This means that if OWCP secures a job for you as a retail store greeter for instance, and pays you the difference between your salary and what retail store pays — and you decide to say “no”, OWCP has every right to cut off your payments.

On the other hand, under the laws concerning FERS & CSRS disability retirement, 5 C.F.R.Sec. 844.103 (a)(2) states that, in order to be eligible for disability retirement, the individual “must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position.” The difference here is that, under OWCP, if you are “partially disabled,” if you are offered any job that OWCP believes you can do, you must accept it. On the other hand, under FERS/CSRS disability retirement laws, if you are partially disabled — meaning that you simply cannot do at least one or more of the essential elements of your job — then you are entitled to disability retirement benefits, and your agency or the Postal Service cannot simply offer you any job; they must offer you a job in the same pay or grade, and one in which you are qualified or, if you are in the Postal Service, then it must an accommodation in the same craft.

Controlling Your Future

Under OWCP, you have no control over your future – OWCP determines your future. Under OPM Disability Retirement, you can obtain disability retirement benefits, and then take control of your future and work at another job of your choice, make up to 80% of what your (former) position pays and still continue to receive your disability annuity.

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