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

Disability Retirement for Federal Government Employees: Use of Collateral Sources

Context is important.  Identifying the relevance of importance, however, is discretionary, and requires some insight into the impact which a differentiated distinction might require.

Allow for some expansive explanation:  In attempting to obtain OWCP/DOL benefits, one may want to argue against the validity of a medical evaluation — i.e., by attacking the claimed “independence” of the medical evaluation (argument:  the doctor is being compensated by the Department of Labor; 25% of his practice is devoted to such evaluations, and out of that, 95% of his evaluations are found to be in favor of the Department of Labor, etc.).  But the fact that one may want to attack the relevance and validity of an  independent medical examination within the context of the Office of Worker’s Compensation, does not mean that when one files for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, that one should necessarily and unequivocally discard the received report from OWCP.

There may well be statements contained in such a report which may be useful in arguing to OPM that one’s Federal Disability Retirement application should be approved.  Can one argue positively that it is an “independent” medical examination?  Absolutely.  In fact, the contrary argument should be made:  that because the doctor was selected by another government agency (Department of Labor), it is all the more so that the medical opinions of the particular doctor are relevant and of significant impact.  One must be careful, of course, in using such collateral sources for support of one’s Federal Disability Retirement application, but so long as the proper context is identified and understood, one should always consider the use of such “other” sources of support — but never to replace the primary importance of one’s treating doctor.  Context, properly understood, can result in substantive argumentation of relevant and significant import.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Exaggerated Focus

Often, in preparing and filing a Federal Disability Retirement application, the distractions of collateral issues can be heightened to a level of exaggerated focus, such that it formulates and creates a perception which is beyond the proper perspective which it should be accorded.

Thus, for instance, the issue of whether or not a Supervisor’s support in a Federal Disability Retirement application is important, and to what extent. The issue of whether the Agency can undermine or subvert the Federal Disability Retirement application, etc. — these can be mere distractions which, if allowed to expand in an exaggerated vacuum, can derail a Federal Disability Retirement application unnecessarily.

On the other hand, certain issues and obstacles can indeed be exaggerated, and still maintain a perspective of “reality” — such as the support and importance of one’s treating doctor.

It is important to make the conceptual distinction between the core essentials which make up a Federal Disability Retirement application, and those which are secondary, and further, those which are peripheral to the process.

The ultimate goal is to formulate an approach, prepare an effective presentation to the Office of Personnel Management, and not get distracted from the multiple obstacles and seeming-obstacles which can divert one’s attention, and maintain a reasoned perspective throughout.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: Collateral Disability Determinations

The key to effectively using collateral sources of disability determinations in a Federal Disability Retirement application under FERS or CSRS is to tailor its relevance in each individual circumstance.  Thus, for example, because the focus upon percentages of disability, or the issue of causal connection to the workplace, is a focal point of importance in an OWCP/Department of Labor case, but not in cases of Federal Disability Retirement under FERS or CSRS, such issues should be left alone.  However, the fact that there may be an “independent medical examination” by a Second-Opinion doctor, or a referee doctor in a Worker’s Comp case, can be used to one’s advantage.  

Often, a person who has been under the agonizing scrutiny and torture of the Worker’s Comp process will miss the point, and complain that the OWCP-appointed doctor “didn’t even exam me for 2 minutes”, or “didn’t listen to a thing I said,” but all the while missing the key ingredients in the doctor’s report:  (1) that the doctor can be effectively characterized as “independent” — not from an OWCP standpoint, but certainly from a FERS or CSRS Disability Retirement standpoint, because that particular doctor has no self-interest from OPM’s viewpoint, and (2) if the doctor’s opinion is that, while the causal connection (for example) may not have been established, does he nevertheless express an opinion that the Federal or Postal employee is unable to return to perform the essential functions of his or her job?  Often, the emotional uproar in an OWCP case, or in other similar cases (SSDI & Veteran’s Department disability determinations) causes the Federal or Postal employee to miss the primary point of the process:  to use the tools effectively in getting a Federal Disability Retirement application under FERS or CSRS approved.

Sincerely,

Robert R. McGill, Esquire