OWCP Disability Retirement for Federal Government Employees? Beware the Lull of Complacency

Monotony is a state of being which we often criticize, yet unintentionally seek; for it is that hiatus of quietude which allows for thoughtful reflection, and recuperative islands of serenity, which serves to prevail upon an otherwise maniacal universe of a fast-paced technological world of smart phones, email, and the constant drone of machinery and demands of the modern decalogue.

But the problems inherent with the calm of normalcy is that it serves the unwanted plate of complacency; and it is precisely the latter which then results in procrastination, a sense that things can wait until tomorrow — until that tomorrow leaves us in the throes of yesterday.

And so it is with Federal and Postal employees who remain on OWCP/Department of Labor benefits, where the luxury of being paid 66 2/3 % if without dependents, and 75% with dependents, provides for that period of life when nothing moves and everything remains static, while one attempts to recuperate from an injury or occupational disease.  But as one remains in that island of calm, the world — and time — continues to march on (do the young of today fully understand the metaphor of time in this digital age where the rhythmic constancy of a ticking clock is no longer heard?).

The Federal or Postal employee might receive a notice of separation from Federal Service, but since the OWCP payments will continue, not think twice about such mundane consequences.  But Federal Disability Retirement benefits must be filed for within one (1) year of separation from Federal Service; and when the hiatus of OWCP benefits is suddenly terminated, the world of monotony may turn upside down into one of unintended turmoil, unless a “back-up” system of benefits was applied for.

Reflective moments are a positive thing; inaction for too long, however, often results in atrophy — a state of being which is never a positive one.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OWCP Independence & Instersection

When Federal and Postal employees call to inquiry about Federal Disability Retirement issues from the Office of Personnel Management, the initial part of the conversation often involves separating the distinction and differences between OPM Disability Retirement and temporary total disability benefits obtained through the Office of Worker’s Compensation Programs, Department of Labor (OWCP/DOL).  

The two are distinct, independent, and do not intersect except when it comes to having both benefits approved — in which case the “intersection” between the two is comprised of choosing one benefit over the other, and allowing the other to remain in an inactive status.  The fact that each is separate, independent and non-intersecting (for the most part), however, does not mean that documentation from one entity cannot be used to prove or otherwise enhance the provability of the other (yes, the double-negative makes it more difficult to understand — but what it means is that you can use documentation from OWCP sources to help prove your OPM Disability Retirement).  

Thus, while there are two separate “language games” (to use a term coined by the 20th Century Philosopher, Ludwig Wittgenstein) involving usage of terms which are somewhat foreign to each other — such as “MMI”, “percentage disability ratings”, whether it is an “on-the-job” injury or not, etc., the fact that OWCP issues embrace a medical condition which impacts one’s ability or inability to perform one or more of the essential elements of one’s job, can certainly be a valuable tool in the arsenal of weapons to be used in proving a Federal Disability Retirement case.  On the other hand, discretion is a tactical tool which also needs to be applied…

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Disabled Federal Workers: OWCP & Federal Disability Retirement

Whether or not one remains on Department of Labor, Office of Worker’s Compensation Programs (DOL/OWCP) benefits, of receiving Temporary Total Disability compensation, and for how long, should not be the determining factor as to whether to file for Federal Disability Retirement benefits from the Office of Personnel Management, whether under FERS or CSRS.  

Ultimately, the two systems of benefits and compensation are meant to address two different issues. OWCP is meant to address the issue of a Federal or Postal worker who has been injured on the job, or from an occupational disease, and thus causation is an issue with OWCP compensation and benefits.  Further, OWCP is not meant to be a retirement system — although, in more recent years, the U.S. Postal Service and some other Federal Agencies have started to use it “as if” it is a retirement system for its employees, encouraging the filing for such benefits in order to shed the agency of workers who are not “fully” productive.  

What often happens, however, when a Federal or Postal worker continues to remain on OWCP is that it become a default retirement system.  One can easily become comfortable in receiving the Temporary Total Disability payments, and indeed, because of the high rate of pay and the appearance of greater benefits because no taxes are taken out of the amount paid, one can continue to survive on such payments.  But because it is not a retirement system, the day can suddenly dawn when OWCP finds that the Federal or Postal worker is no longer entitled to such compensation.  For that reason, and sometimes for that reason alone, it is important to secure the benefit of a Federal Disability Retirement annuity.

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

CSRS & FERS Disability Retirement: Agency Interaction

Federal Agencies often act like little fiefdoms.  This is not necessarily a negative thing; each agency is an independent entity, and each has a province of responsibilities which it must carry out and execute according to the statutory mandate provided by Congress.  As independent entities, each agency acts without coordination or regard to other agencies. 

Thus, while approval for disability benefits from the Social Security Administration will mean an offset of monetary payments under FERS, such interaction between the two agencies simply goes to the financial payments — not to the substantive issues of approval or disapproval of a disability retirement claim.  Similarly, while receipt of temporary total disability payments from the Office of Worker’s Compensation Programs means that you cannot concurrently receive payments under CSRS or FERS disability retirement (unless you are receiving a scheduled award from OWCP/DOL), the substantive basis of approval or denial of a claim rarely overlaps.  This is because each agency has its own independent criteria for eligibility — meaning that, for Social Security, the “disability” has a higher standard of “total disability”, whereas under FERS & CSRS, it is a lower standard of “inability to perform one or more of the essential elements of one’s job”.  Similarly, with OWCP/DOL, the issue of “causality” and whether it is “work-related” is often the important component of consideration. 

All of this is not to say, however, that an approval of a disability benefit from one agency,or a report from a doctor considered for one benefit, should not be used by the applicant for submission to another agency.  Indeed, this should be done — but carefully, and with thoughtfulness. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: The Filing

Never be deceptive in your filing. Always be truthful. To be deceptive or untruthful will harm your credibility, your case, and ultimately, may defeat your ability to obtain disability retirement benefits. Now, there is a conceptual distinction between being “truthful” and emphasizing certain issues of your case, while leaving certain other issues as secondary and less prominent in the documents & supportive papers filed. Thus, to take a rather crude example, while everyone in the world spends a great deal of his or her life in the restroom, we rarely — if ever — talk about such events. Is it because we are not being “truthful”? No — instead, while it is an issue which is not emphasized, it is not something which we are also being deceptive about.

Thus, with respect to disability retirement issues, one should never deliberately attempt to mislead, hide, or otherwise “expunge” certain aspects of the disability retirement application. At the same time, however, those aspects which are not very helpful, or which may harm your case, should not be placed in bold-type or underlined in red. Wherever possible, those aspects which will weaken your case, should simply be de-emphasized — but never deliberately hidden.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: Perennial Issues

Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms.  The one which needs to be addressed, again, is the “1-year” issue:  there are actually two (2) questions which keep resurrecting themselves: A.  Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year. 

As to the former:  The statute of limitations begins to toll when a person has been officially separated from Federal Service.  This means that the Agency must take you off of the Federal rolls.  If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun.  On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated.  At that point, you have one (1) year to file your Federal Disability Retirement application. 

As to the latter (Issue “B” herein):  In most cases, it is a prospective issue.  It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year.  In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty.  Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway.  In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish. 

Sincerely,

Robert R. McGill, Esquire