OPM Disability Retirement Lawyer: Preemptive Actions

Knowledge can be a dangerous commodity; partial, or little knowledge, can be all the more damaging, precisely because actions can result based upon incomplete information and slices of factually curtailed composites.

The Court of the Appeals for the Federal Circuit has previously pointed out one of the methodological deficiencies engaged in by the U.S. Office of Personnel Management, in its review and determination of Federal Disability Retirement cases:  of focusing upon that which is not included in a Federal Disability Retirement application, as opposed to reviewing the information of what has been received.

Such a distinction may be a subtle one, and a difference which can be easily overlooked, but it reveals much more than mere word-play.  For, what it manifests is an application of a criteria based upon an erroneous assumption, and one which continues to be applied to this day, despite case-law which admonishes OPM to the contrary.

Vanieken-Ryals v. OPM, a 2007 Federal Court of Appeals case, points out the error of OPM’s ways in Federal Disability Retirement cases, where insistence upon “objective” medical evidence continues to dominate, despite the lack of such requirement to the contrary.  Such an issue is especially relevant, of course, in cases where psychiatric medical conditions prevail, and when OPM insists upon the lack of such “objective” medical evidence where none can be obtained, it leads to Federal and Postal employees to react desperately in a preemptively unreasonable frenzy of actions.

Not knowing the law is one thing; knowing, but deliberately ignoring it, is quite another.  But the price Federal and Postal employees pay for when a bureaucracy engages in practices which clearly defy the clear mandate of legal requirement, results in preemptive actions which ultimately lead to another day in Court, to argue that which one thought was previously already established.

Sincerely,

Robert R. McGill, Esquire

 

Postal and Federal Disability Retirement: Agency Actions Are Merely Persuasive

Whether it is one’s own agency which acts, or some third-party agency, the effect of such actions upon a Federal Disability Retirement application under FERS or CSRS is merely persuasive, and not determinative, from the viewpoint of the Office of Personnel Management, whether under FERS or CSRS.  

Such actions may include:  Disqualification based upon a medical condition, whether because of the primary, underlying medical condition, or a secondary condition resulting from a prescription medication; determination by the Agency based upon a fitness for duty review; failure to pass certain physical fitness standards; declarative statement by the Agency that no accommodations can be accorded, whether because of one’s medical condition or other influencing factors; a conclusion reached by an Occupational Nurse or doctor; acceptance of a case by OWCP, Department of Labor; approval by the Social Security Administration, the Veterans Administration, etc. — all of these “third party” determinations can be persuasive for a Federal Disability Retirement application, but are not necessarily determinative in coming to a conclusion of approval by the Office of Personnel Management.  

Why “persuasive” as opposed to “determinative”?  Because of two fundamental reasons:  (1)  The Office of Personnel Management is an independent agency, mandated by statute, regulation and case-laws, to make its own determination of eligibility of each Federal Disability Retirement application, separate and apart from any other agency, and (2) such agencies which make such determinations are not medical facilities (although a doctor or nurse may have some involvement in the decision-making process), and this is ultimately a “medical” disability retirement, and not an agency retirement system mandated by law.  

As such, one must still prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits, based upon the nexus between one’s medical conditions and one’s essential elements of the Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

OWCP Payments & FERS/CSRS Disability Retirement

There are many Federal and Postal workers who have been receiving OWCP payments (Temporary Total Disability benefits) for years.  Such payments can, indeed, continue for many years, or for a few months, depending upon the length of time it may take for a medical condition to persist.  

The problem with relying upon OWCP as a retirement system is that, strictly speaking, it is not a retirement system.  The Department of Labor can begin the process of sending the benefit recipient to a “Second Opinion” doctor, and the process of attempting to cut off OWCP benefits has thus begun.  

Further, there is often the problem of reliance upon OWCP, resulting in a Federal or Postal worker failing to file for Federal Disability Retirement benefits within 1 year of being separated from Federal Service.  This sometimes happens because the Federal or Postal Worker begins to feel secure in the monthly OWCP benefit, and because it pays a higher rate than FERS or CSRS Disability Retirement benefits.  However, one should never be fooled by the tenuous nature of OWCP — it is not meant to be a retirement system, and most Federal and Postal workers who have experienced first-hand the treatment by OWCP/DOL will attest to the fact that they can be sudden, arbitrary, and difficult to deal with.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Termination (Part 2)

There are times when an Agency will proceed and terminate a Federal or Postal employee based upon adverse grounds — of “Failing to follow proper leave procedures”, for being AWOL, for Failure to do X, Y or Z.  Such adverse actions may be the “surface” reason for the actual, underlying reason — that of one’s medical inability to perform one or more of the essential elements of one’s job.  Once a proposed termination becomes an actual termination, then the course of action to take, of course, is to file an appeal with the Merit Systems Protection Board.  An Administrative Judge can often be of great assistance in defining and narrowing the issues, and in gently persuading and convincing the Agency to consider changing and amending the “surface” reason to the true, underlying reason of medical inability to perform the job.  The goal here, of course, is to do everything to help in “weighting” a disability retirement application in your favor, and while obtaining the Bruner Presumption in a case is not critical, in many cases, it can be helpful.  And the way to get the Administrative Judge on your side, so that the AJ will then try and persuade the Agency to consider amending a removal, is to obtain well-documented, well-written medical narrative reports from the doctors.  As is almost always the case, the underlying basis for any disability retirement application begins and ends with a well-written medical report.

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.