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

Disability Retirement for Federal Workers: When the Agency Promises…

The Federal Agency or the U.S. Postal Service for whom the Federal or Postal employee works, cannot “promise” the granting of a Federal Disability Retirement annuity.  Such promises are presumptuous and ultimately vacuous, precisely because it is on the independent agency — the Office of Personnel Management — which is the sole agency and arbiter for determining the viability, sufficiency and legal adequacy of all Federal Disability Retirement applications under either FERS or CSRS.

While agencies can be somewhat “helpful” in the processing of a Federal Disability Retirement application, it is important that if there is an ongoing collateral litigation (e.g., EEOC action; a pending parallel lawsuit; a grievance procedure invoked, etc.), that any settlement or discussion of settlement not state, infer or otherwise imply that the agency can provide the applicant with a Federal Disability Retirement annuity.  

Instead, the agency should complete certain forms consistent with the terms of any settlement; and, further, a separation from Federal Service based upon one’s medical inability to perform one’s job can invoke the Bruner Presumption, which can certainly be a plus in a Federal Disability Retirement application.  But recognizing the independence of OPM, and staying away from any appearance of “collusion” through promises that an Agency can somehow “promise” the Federal or Postal employee an approval from the Office of Personnel Management, is important to maintain.  

Agencies cannot promise a Federal Disability Retirement approval, and any such promise in a collateral source is only worth the cost of the paper it is printed upon — or, in most cases, even less.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The “Almost” Medical Inability to Perform Termination

Often, Agencies will proceed to propose a removal of a Federal or Postal employee based upon reasons which clearly “imply” one’s medical inability to perform one or more of the essential functions of one’s job, but explicitly, based upon other stated reasons — e.g., “Failure to Maintain a regular work schedule” or “Being Absent Without Official Leave (AWOL)“.

Then, the frustrating scenario is when the Agency — in the body of the proposed removal letter — refers to and acknowledges the existence of multiple medical conditions which form the foundation, reason and justification for being unable to maintain a regular work schedule or being absent from the job (whether with or without official sanction or approval).

The key in such circumstances, of course, is to try and attempt to make the “implicit” (references to one’s medical conditions and their impact upon one’s inability to perform one’s job) “explicit” (having the Agency change or amend the reasons to instead state:  “Removal based upon the employee’s Medical Inability to Perform his or her job”).

Such a change, of course, would be helpful in a Federal Disability Retirement application under FERS or CSRS, precisely because it would invoke the Bruner Presumption, which would then make it that much more difficult for the Office of Personnel Management to deny a Federal Disability Retirement application.  For, that is the ultimate goal:  to obtain an approval of the Federal Disability Retirement application; and any such advantage gained brings the Federal or Postal employee one step closer to that ultimate goal.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for U.S. Federal Government Employees: Context, Sequence & Connections

Often, a potential applicant for Federal Disability Retirement will insist that the origin of the medical condition or injury is important to annotate, for one reason or another.  Unlike OWCP issues, origin and causation is usually of little or no significance in a Federal Disability Retirement application, whether under FERS or CSRS.  Thus, for OWCP Disability, it may be of importance to show that X injury was caused by occupational hazard Y; or that, while on the job on a certain date, the applicant slipped and fell, etc.  In proving OWCP Disability, such “incident-specific” facts are important in establishing causation, in order to determine eligibility and entitlement to OWCP Disability benefits.

For purposes of OPM Disability, however, the Federal or Postal worker who is seeking Federal Disability Retirement benefits from the Office of Personnel Management, does not have to establish such incident-specific facts.  Rather, the focus shifts upon the medical condition, the symptoms, and the impact upon those medical medical conditions and symptoms upon one’s inability to perform one or more of the essential elements of one’s job, within the last year.  While it may be that some factual context is significant by way of showing a sequence of events from the past, in order to show how the medical condition worsened over time, OPM normally does not care about such historical facts.  While the history of X is interesting, what occurs in the recent-to-present timeframe is what interests OPM.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: Priority and Importance

In preparing a Federal Disability Retirement application under FERS or CSRS, it is important to always distinguish between two conceptual paradigms:  priority of an issue, and the importance of an issue.

While gathering the proper evidence and substantiating medical documentation is of importance, it should not be the priority.  The priority — that which should precede another — should be to take care of the medical condition itself (i.e., to get the proper treatment modalities, to undergo the necessary diagnostic tests, to follow the treatment regimen of the doctor, etc.).

At some point, of course, the question will arise:  Is it time to consider filing for Federal Disability Retirement under FERS or CSRS?  Can I continue to work at my job?  Is my job performance suffering?  At that critical juncture, then the issue of importance may arise.  While priority has to do with that which is first in a series of issues, the concept of “importance” can entail multiple issues all at once.

Once the question of “whether” is answered in the affirmative, then one must begin to approach the doctor for his or her support; to begin to annotate how the medical condition is impacting one’s ability/inability to perform the essential elements of one’s job, etc.  All throughout, of course, the priority of getting the proper medical care is paramount.  Everything else is secondary, but other things can concurrently be of importance.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: If all Roads Lead to …

If all roads lead to Point A, then it is obviously Point A which is of importance; the multiple roads which lead to it, while supportive and secondarily of importance, it is that critical point which must be taken care of.  This principle is important to keep in mind in preparing a Federal Disability Retirement application under FERS or CSRS.  What is the critical “Point A” of the process?  What is that essential centrality around which everything else coalesces and points back to?  That which is determined to be the foundational center of any process is that which must be thoughtfully formulated and constructed. 

In a Federal Disability Retirement case, for Federal and Postal workers under FERS & CSRS, that critical “Point A” is the Standard Form 3112A — the Applicant’s Statement of Disability.  Think about it for a moment.  That is the form — and the opportunity — to discuss the medical conditions; how the medical conditions impact one’s inability to perform one or more of the essential elements of one’s job; whether or not your medical condition can be accommodated, etc.  What is the relevance of a medical report?  Its relevance surfaces only when it is explained in relation to one’s job.  What is the relevance of a job description?  Its relevance emerges only in relation to the explained medical condition.  What is the relevance of how a medical condition impacts one’s life outside of work?  Its relevance becomes apparent only in relation to its pervasiveness and described impact.  All of these issues become relevant because they point back to Point A — the Applicant’s Statement of Disability.

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

OPM Disability Retirement: The Patient/Applicant

Before even thinking about starting the process of filing for Federal Disability Retirement under FERS or CSRS, it is important for the patient/applicant to approach his or her doctor and get an initial commitment of support. For, ultimately, the most essential lynchpin of a disability retirement application hangs on the support of a doctor — from the first and initial stage, all the way to the Merit Systems Protection Board (where live telephone testimony may be necessary).

The “patient” needs to approach the doctor with sensitivity. It is probably not even a good idea to talk about anything beyond the first stage of the process — instead, the focus should be about how “support” for a disability retirement application is actually part of the rehabilitation and healing process of medical treatment. For, ultimately, a disability annuitant under FERS or CSRS is not asking to be “totally disabled” by the doctor (and, indeed, most doctors do not want to release their patients into the retirement “pasture” of full disability); rather, it is simply a medical support of reasoning that a particular patient is no longer a “good fit” for a particular kind of job. Don’t scare the doctor off with a view of the “long process”; rather, the initial commitment is all that is needed — for the first stage of the process.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Be Careful

As part of a Federal or Postal employee’s process of filing for Federal Disability Retirement benefits, one may have to negotiate, respond to, or fight against an unfair Agency’s attempt to remove the Federal or Postal employee — based upon factors other than what is truly the underlying basis — of his or her medical inability to perform the essential elements of the Federal job.  For whatever reason — of incompetence, of pure unkindness, of personal vendettas, etc. —  Agencies will often refuse to remove an individual for the administratively neutral reason (by “neutral”, to mean that it is not an “adverse” action) of “medical inability to perform the essential elements of the job”.  Instead, they will often revert to other reasons:  “excessive absences”, “AWOL”, “excessive LWOP”; “violation of a PIP”, and other such overtly misleading reasons.  When, the truth of the matter is/was, the Federal or Postal employee was sick, has a medical condition, and could not come to work because of medical reasons.  Be careful.  Fight the removal action.  Don’t accept the unfair basis.  File an appeal with the Merit Systems Protection Board.  Remember, a removal for medical inability to perform the essential elements of the job can help you get an approval in a disability retirement application.  Better yet, hire an attorney who will fight for you.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Process & Time

Time is also part of the entire process of filing for Federal Disability Retirement; time factors involve multiple issues from multiple aspects and perspectives:  The Statute of Limitations of filing a Federal Disability Retirement within one (1) year of being separated from federal service; the fact that the 1-year mark begins from the date of actual separation, not from the date of disability, or the date of one’s inability to perform one’s job (although those dates may, on occasion, coincide); the fact that the medical condition must last for at least 1 year (while, at the same time, recognizing that one normally should not wait for the year to pass before filing for Federal Disability Retirement, because most doctors can provide an opinion, within reasonable medical certainty, that the medical condition impacting one’s inability to perform the essential elements of one’s job will last for at least a year, normally quite early on in the process); the time it takes for the doctor to prepare a proper medical narrative report; the time it takes for the Agency to prepare and attach to the disability retirement packets its required forms; the time it takes for Boyers, PA to process the case and assign a CSA Number to it (which begins with a “4” for CSRS employees, and an “8” for FERS employees); the time it takes to get the case assigned once it is sent down to Washington, D.C.; the time it takes, once assigned, for an Initial Approval or Denial.  And, of course, all the while, during this entire “process” of time, issues as to whether the applicant should, could, or will continue to work, either at the Agency, in some light duty capacity, or in some other job.  These are all “time/process” issues which an attorney can guide and assist a client with, in the complex “process” of filing for Federal Disability Retirement under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire