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

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

Federal and Postal Disability Retirement: OWCP Intersections

To the question relevant to filing for Federal Disability Retirement benefits under FERS or CSRS, as in, “What are your medical conditions?”  — the potential applicant will often state the following:  “Well, it is an OWCP-accepted case…”  Such an answer may or may not be relevant.

OWCP under FECA (“Worker’s Comp”) is on a different benefit track from Federal Disability Retirement benefits under FERS or CSRS, as approved or denied by the Office of Personnel Management.  In many ways, the different processes are completely separate and apart.  One cannot receive both benefits concurrently. One must choose between one or the other.  Theoretically, one can switch from one to the other, then back again, but in practical terms, it is difficult because of the headaches involved in stopping one and starting the other.  One can, however, pursue both tracks of benefits concurrently; it is just that one must choose between the two if both are accepted.  

Now, this doesn’t mean, however, that one cannot “use” certain medical documentation to the advantage of the other process.  Thus, for instance, I have often used OWCP “Second Opinion” or “Independent Medical Examination” reports in helping to obtain Federal Disability Retirement benefits under FERS or CSRS.  What an irony — because we all know how “independent” second-opinion doctors are; yet, when such an “independent” doctor provides an opinion in the client’s favor, there is nothing wrong with using it to the client’s advantage when filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The OWCP Paradigm

One may choose OWCP benefits because, financially, it pays more (75% non-taxed for an individual with dependents; 66 2/3% for a single individual) than a Federal Disability Retirement annuity.  It is a pragmatic paradigm to rely upon for the immediate time-frame; however, it is not a practical paradigm for the future.  Obviously, one should obtain an approval from the Office of Personnel Management for one’s disability retirement, concurrently with receiving OWCP temporary total disability payments.  However, upon an approval from OPM, you need to elect between the two — because you cannot be paid by both concurrently.  Many people (rightly) choose to remain on OWCP and keep the OPM Disability Retirement annuity in “limbo or annuity purgatory” — again, because OWCP pays more.

However, as a paradigm for the future, it should not be relied upon forever.  This, because OWCP is not a retirement system.  Instead, it is a system of allowing for payment during a time of occupational disease or injury, for a person to be able to recover from such an injury.  While on OWCP benefits, however, you cannot work at another job (unlike under FERS & CSRS disability retirement); in fact, if you engage in too many physical activities similar to those which you might do at work, you may find that you will be criminally charged for “fraud”.  This has happened to many people, and it should frighten anyone who is on OWCP.  In such cases, you will often find that you have been videotaped over hundreds of hours — but the “edited” version upon which OWCP investigators charge you with, will be a video clip of about 5 minutes.  Next:  Why OWCP is not a good paradigm for one’s future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Doctor

Doctors hate administrative duties.  They went to medical school, and they want to practice medicine, not law.  If they wanted to engage in vast amounts of paperwork, they would perhaps have gone to law school.  As such, paperwork, writing medical narrative reports for their patients, providing medical opinions in a report — they are part and parcel of the dreaded “paperwork” — somewhat like filling out all of the forms for medicare, medicaid, insurance, etc. to get paid. Such paperwork is often left to the “administrative staff”, and therefore doctors are only sporadically required to actually prepare any paperwork.

This presents a peculiar problem for a potential disability retirement applicant, because in order to obtain Federal Disability Retirement benefits under FERS or CSRS, an applicant must have a doctor’s narrative report which delineates certain issues, addresses certain issues, and renders certain opinions.

Thus, the crucial question becomes: How does one approach a doctor and convince him or her that preparing a proper medical report is an integral aspect of treating the patient? The answer: It must be done with diplomacy, sensitivity, caution, guidance, and understanding, all bundled into one. Above all, it begins with a relationship — a patient-doctor relationship that has been formed over many, many years. And, indeed, that is the requirement under the case-laws at the Merit Systems Protection Board governing disability retirements — that those opinions rendered by treating doctors of long duration are accorded greater credibility than single-examination doctors. And it all makes sense.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable.  Think about it this way:  yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.

Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.

This latter criteria is actually for the benefit of the applicant, when you stop and think about it.  For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.

Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be.  For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws:  the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from.  All in all, the disability retirement laws are governed by a criteria of reasonableness.

Sincerely,

Robert R. McGill, Esquire