CSRS & FERS Medical Disability Retirement: The Treating Doctor

There is efficacy and motivational bias.  Sometimes, unintended consequences result in the coalescence of both, but where the result is unaffected by the underlying reason for acting upon an event.

In OWCP cases, the motivational bias almost always includes the intent of the Department of Labor to try and save money, and to steer the injured worker to undergo treatment (if one can call it that) and oversight with one of “the company” doctors who can quickly declare a person to be healed and ready for return to full-time duty, despite protestations of pain, discomfort and limitation of movement, all to the contrary.

It is no accident that the ever-present Worker’s Comp Nurse who infringes upon the patient-doctor relationship by imposing her presence upon each visit, agrees whole-heartedly with any such assessment of full recovery, and ignores the pleas of the patient/OWCP benefit-recipient.

By contrast, those who are filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, are encouraged to speak with their longstanding treating doctors, as opposed to merely going to a doctor whose motivational bias may stem from the source of one’s payment.

Treating doctors who have a long tenure of doctor-patient relationships have little underlying motivation to do anything but look out for the best interests of the patient.  If Disability Retirement is the best course, then that will be what the treating doctor will support.  It is ultimately the relationship that has been established over the many years, which makes for all the difference.  And that difference is worth its incalculable weight in gold.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Taking the Longer View

The converse viewpoint of the short-sale, or short-term view, is the obvious:  to look to one’s future with a long-term view, which often takes self-discipline in ignoring the short-term gain.  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 difficult to disregard the attraction of OWCP payments, and to instead plan for one’s future by opting for Federal Disability Retirement benefits from OPM.

Under FECA/DOL, OWCP pays 75% of one’s Federal or Postal salary tax free (if one has dependents), and 66 2/3% without dependents.  That is a sizable compensatory attraction.  However, with limited exceptions, when one is under the thumb of OWCP, you:  A.  Cannot work at another job, B.  Must do what OWCP says in order to continue the benefit, C.  Must be careful, as the watchful eye, especially in the form of a video camera, may be anywhere and everywhere, and D. Will likely be subjected to second and third opinion doctors, as well as a nursing case manager, to try and expedite your return to your job.

Ultimately, OWCP is not a retirement system, and the job of the Department of Labor is to get you back to your former job as quickly as possible.  OPM Disability Retirement, on the other hand, is a compensatory system whereby one is encouraged to go out and begin anew.  The long-term view is often the harder road to take; it is, however, meant to reward one for a lifetime, as opposed to a momentary and fleeting memory which will end soon enough.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: OPM over OWCP

I still get many emails and phone calls about the onerous, “over-the-top” behavior, and the bullying tactics of OWCP/DOL temporary total disability payments & requirements — everything from constant, incessant and unending, harassing letters, to requiring further evaluations from second and third opinion doctors (or so-called doctors), to constantly requiring one’s treating doctor to justify the continuing disability status, thereby endangering the continuation of the doctor-patient relationship.  And who can criticize or blame the doctor for wanting to drop a patient for the amount of hours he/she has to put into, for “non-medical” issues, and for the time expended which the doctor will never be paid for? 

Yes, Worker’s Comp pays more.  Yes, it is non-taxable.  Yes, there are monetary reasons for staying on OWCP.  But the truth is, money doesn’t buy peace of mind or a life of lesser stress.  OWCP is meant to be a temporary means of providing income — it is not designed for the long term, and indeed, the Office of Worker’s Compensation makes that abundantly clear by their actions.  OPM Disability retirement under FERS or CSRS pays much less, but it allows for independence and a semblence of freedom, not even to mention a life of some dignity.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP & Federal Disability Retirement

I often tell my clients that OWCP/DOL is not a retirement system. It is a system which was meant to address the medical injury resulting from a work-place accident or occupational hazard resulting in a medical issue arising, such that compensation is allowed for a period of time during a process of recuperation.

As unfortunate as it is, Worker’s Comp has become synonymous with “harassment” and “difficult”, where approval for wage compensation, for medical treatment (including necessary surgery) has meant months and months — and often years — of wrangling and fighting; of having an OWCP case manager or adjuster being rude, failing to respond, failing to return telephone calls, and just when it seems as if something may be done, the OWCP caseworker is switched to someone else who is equally unresponsive.

Then of course there is the intrusiveness — of the OWCP nurse who sits in with you and your doctor, in a context where it is as if the “enemy” is watching that relationship which is supposed to be sacred and private:  a conversation between a doctor and the patient. It is, as I have often told clients, “a hard road to travel.”  Yet, where the medical condition, injury or disability arises as a result of a work-place accident, obviously it is financially beneficial because it pays more. That is the bottom line.  Further, it is tax-free.  But it is not a retirement system. 

Disability retirement pays less; it matters not whether the injury or medical condition occurred “on the job”; you are not required to be examined by a “second opinion doctor”; you do not have to obtain prior approval from a case manager to go and seek medical treatment.  But the benefits are much lower; it is taxable.  However, is it disability retirement.  In such a retirement, you are meant to go out and to do other things in life, including other work.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Proper Paradigm

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain “paradigm” (reference Thomas Kuhn, Structures of Scientific Revolutions) or “world-view”. When it comes to Federal Disability Retirements, the majority of Federal and Postal workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be.

Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not — strictly speaking — an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue — that of an employee’s entitlement to disability retirement.

Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process — one which is a valuable benefit for the Federal and Postal Employee.

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.