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

Medical Retirement for Federal Workers: How to Use Percentage Designations

Carefully.  With discretion.  With an intelligent approach.  Not indiscriminately (a double-negative which, in common parlance, means “discriminately”).  Quantification of pain, of a medical condition, of a loss of use of one’s body functions, ability to have the manual dexterity of the use of one’s fingers, hands, arms; of the flexion and range of motion of shoulders, etc., includes a level of subjectivity at best, and at worst, possibly misrepresents the extent and severity of a disability.

Further, when quantification of the disability of a particular body part is further interpreted to represent a part of a greater whole — as in OWCP/FECA’s attempt to assign a percentage disability of the “whole person”, or when the Department of Veteran’s Affairs calculates a combined percentage rating which is not merely the addition of all lesser individual ratings — it needs some explaining.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one should obviously utilize all of the available tools, evidence, compilation of documentary evidence, etc., all of which, in their combined entirety, could help to provide persuasive evidence in obtaining an approval from OPM in a Federal Disability Retirement application.  But use of those tools, how it is used, what is used, how it is explained, and whether the explanation is adequate, are all important keys to keep in mind.

OPM is an independent agency.  When you attempt to dictate an outcome based upon a decision of another agency, such an attempt will often appear to be a threat to the very independence of an agency; something which needs to be kept in mind.  What should be submitted is rarely an issue; how it is stated is always a concern.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Taking Advantage of the Long Wait

Preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS should not be viewed as a singular event with a distinct and bifurcating cut-off date, where once the medical documentation has been filed with the Office of Personnel Management, it is merely a long process of inactivity in waiting.  

The circumstances at the U.S. Office of Personnel Management have obviously changed.  A few years ago, the expected “wait-time” once a CSA number was assigned to a case, was approximately 60 – 90 days.  That period of waiting has now been extended, and extended considerably, for reasons which the Office of Personnel Management have cited as a “backlog of cases”.  

Because of those changed circumstances, it is wise to take advantage of the wait period by recognizing and bringing together various elements of a Federal Disability Retirement case:  since one’s medical condition must last a minimum of 12 months, and because the waiting time with OPM has been extended, it is probably a good idea to continue to “supplement” the medical records with the Office of Personnel Management, by forwarding, faxing, mailing, etc., any updated medical records, treatment notes, office notes, surgical operative notes; clinical examination records; any functional capacity evaluations, etc.  

Any medical notations which show the continuing care, treatment and inability to perform the essential elements of one’s job, will only reinforce and strengthen the argument that (A) one has a medical condition such that one cannot perform one or more of the essential elements of one’s job, and (2) that as a continuing medical condition, it is not only lasting a minimum of 12 months, but is factually a chronic and continuing medical condition.

 Take advantage of the longer wait period, by actively engaging in the management of one’s Federal Disability Retirement application.  

Sincerely,

Robert R. McGill, Esquire