OPM Disability Retirement: Horns & Whistles

Acoustic signaling devices and technological innovations in repackaging information can convey a sense of “newness” and a refreshing sort of alternate sensory perception; however, ultimately, the substantive information which must be presented will require tackling the hard elements of a case.

In presenting a Federal Disability Retirement case to the Office of Personnel Management, whether under FERS or CSRS, it is important to distinguish between the foundation of the case, as opposed to the “extras” which one may add.  It is like the analogy of the great and master chef who thinks so highly of his or her own skills, that the preparation of the main meal of a course is done without the primary ingredient.  Even the most unrefined and coarse connoisseur can recognize when the steak is missing from a steak dinner.

Thus, in a FERS or CSRS Disability Retirement case, while one’s statement of disability may be persuasive; while “other evidence” by the agency, coworkers, etc. may establish a perspective of medical disability, the foundation of the nexus between one’s medical condition and the positional duties required must be established by the substantive essence of the case — the medical evidence itself.

Don’t mistake the periphery for the center; don’t be fooled by horns and whistles; much noise does not make up for the central requirement in any endeavor.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Targeted Use of Collateral Evidence

Case-law from the U.S. Merit Systems Protection Board, as well as judicial opinions rendered by the U.S. Court of Appeals for the Federal Circuit, maintain the standard of acceptable proof for a Federal Disability Retirement case submitted to the U.S. Office of Personnel Management, for Federal and Postal employees under either FERS or CSRS.

The primary basis for a Federal Disability Retirement application is clear:  A medical condition which exists, which prevents the Federal or Postal employee from performing at least one, if not more, of the essential elements of one’s job; that a legally viable accommodation is not possible; that reassignment to another position at the same pay or grade is not reasonably feasible; that the medical condition will last a minimum of 12 months; and that the Federal or Postal employee must file for such benefits during the tenure of one’s employment as a Federal or Postal Employee, or within 1 year of being separated from Federal employment.

The core of one’s proof is generally based upon the treatment and opinion of one’s treating doctor.

Every now and again, however, there are “collateral” sources of proof which should be considered, and for various reasons, which must be relied upon for establishment of one’s eligibility for Federal Disability Retirement benefits.  Such proof may include: opinions rendered by Second-opinion or “referee” doctors in an OWCP case; percentage ratings provided by the Department of Veterans Affairs; SSDI approval determinations; separation from the Agency based upon one’s medical inability to perform the essential elements of one’s job; medical notes for FMLA; and even (sometimes, but rarely) a decision granting disability benefits by a private insurer; and other such collateral sources of proof.

Such proof, of course, should never replace the centrality of one’s own treating doctor, and further, should always be targeted and submitted with discretionary judgment.  Sometimes, it can be the “other evidence” which makes the difference in a case; other times, if used indiscriminately, can be an indicator of the weakness of one’s case.

Be careful; be targeted; use discretion.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Settlement of Collateral Lawsuits

Appearance versus reality has been an ongoing philosophical issue within the Western Classical Tradition for centuries; it involves the very essence of the culture and heritage of the West, beginning with the Pre-Socratics (e.g., Parmenides), and continuing with Plato, Aristotle…to Heidegger; and until the dawn of modern Philosophy, where linguistic hermeneutics began to prevail, constituted the dominant foundation of philosophical inquiry. How a thing is presented, or “looks”, as opposed to what a thing “really is”, or the “essence” of being, forms the fundamental philosophical inquiry.  

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is often the case that the Federal or Postal employee is involved in some collateral lawsuit or adversarial process — often directly with the agency itself, in an EEO forum, MSPB or U.S. District Court.  

Inevitably, settlement negotiations will often occur, and the issue of whether a Federal or Postal employee can be retroactively “separated” for his or her medical inability to perform one’s job may be offered.  How the settlement is formulated; what is stated in the settlement agreement; what promises are made, etc., are all important in order for such agreements to effectively assist in the Federal or Postal employee being able to obtain a Federal Disability Retirement annuity.  OPM objects to the Federal Retirement fund being used as a tool for settlement of collateral lawsuits.  

Any settlement agreement must not “look” like it is merely a carrot for enticement to medically retire.  The reality of the situation is important.  As always, we go back to our Western roots — appearance versus reality.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Persuading with Persuasive Arguments

The question is often asked concerning whether or not and to what extent other collateral agency decisions can impact a Federal Disability Retirement application filed with the U.S. Office of Personnel Management (OPM), whether under FERS or CSRS.

The only answer which can be provided is the standard, “It depends…”  The reason why “it depends” is precisely because utilization of any persuasive information or evidence is primarily dependent upon the persuasive efficacy of the evidence itself.

There is certainly legal case-law support for collateral evidentiary submissions, including SSDI, Department of Veterans Affairs ratings, Military Board findings, and DOL/OWCP second opinion and “referee” findings, etc.  Thus, the issue is not whether or not there is a basis for using such third-hand sources to support the primary evidentiary foundation of a Federal Disability Retirement application; rather, the issue becomes one of how effectively should one use such evidence.  Such a question, of course, can only depend upon the particular and unique circumstances of each case, by analyzing and reviewing the strength, applicability, and relevance of the documented information.

Sometimes, use of such collateral evidence can somewhat backfire, in that OPM will actually point to such evidence and discuss it in a way which supports a denial.  Care and discretion must always be taken in using collateral information; it is always the primacy of the primary information which must be used, and used effectively.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Collateral Work Issues

There is often, and inevitably (it would appear), collateral work issues which appear in parallel form, along with the impact of a medical condition upon a Federal or Postal worker.  Such issues can take multiple and varied forms — from actions on the part of the Federal or Postal employee which impact upon the performance of the job itself; to behavioral issues at work; to issues concerning actions by the Federal or Postal employee outside of the workplace, but which leads to legal issues which are brought to the attention of the agency.  Whether such collateral issues directly influence or have a peripheral reverberation upon a Federal Disability Retirement application is anyone’s guess.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, however, it is best to assume that (A) the Office of Personnel Management will know, or will somehow find out, about the collateral issues, via being informed by the agency or through some non-pertinent document which mentions or otherwise touches upon the issue, and (B) that OPM will use it as a basis for an argument that there was an underlying motive for filing for Federal Disability Retirement benefits, aside from the medical issue itself.

There are ways to counter such selective attempts by OPM to use a collateral issue to defeat a Federal Disability Retirement application, and it is best to have both a paper-trail as well as a clear time-line of events, to show that the collateral issue existed in a parallel, but separate, universe than the central issue of one’s medical condition.  OPM searches to defeat; it is the job of the Federal or Postal employee to rebut the search, and to destroy the effort in order to force the issue, and obtain an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire