FERS & CSRS Disability Retirement for Federal and USPS Workers: OWCP Dilemma

Benefits received through FECA (Federal Employees’ Compensation Act), administered through the Department of Labor and otherwise known under the acronym of OWCP, provide for temporary total disability compensation during the time that a Federal or Postal employee is injured and is unable to go back to one’s former job.

It pays well.  The problem, often, however, is that it pays well enough just to maintain a person to prevent him or her from drowning.  This dilemma is highlighted by the fact that a Federal or Postal employee who is receiving OWCP benefits (scheduled awards excepted) is unable to work at a job (with some exceptions regarding a person who had already been employed at a second job when injured at his primary vocation) or receive additional earned income.

Federal Disability Retirement benefits, on the other hand, whether under FERS or CSRS, allows for earned income up to 80% of what one’s former position currently pays.

While the Federal or Postal worker is allowed to concurrently file for, and get approved, both Federal OWCP benefits as well as FERS or CSRS Disability Retirement benefits, if both are approved, you must choose between one or the other approved benefit, and allow the unchosen one to remain inactive.

While FERS & CSRS Disability Retirement benefits, filed and obtained through the U.S. Office of Personnel Management, pays less than OWCP benefits, it is the added advantage of being able to work at another vocation which makes it more attractive.

It is like the difference between a shipwrecked victim who can hang onto a small floating device as opposed to a raft with oars; while the former allows for survival, it is the latter which will ultimately take one to the destination of final fruition.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Moving beyond the Stagnant Waters of OWCP

“Is it possible…” is an impossible question to answer.  For, the conceptual distinction between that which is possible, as opposed to probable, is one which reveals the chasm between the world of fantasy and one of reality.  The world of the “possible” is unconstrained and unbounded; the world of probable occurrences may be fenced in by statistical constructs, actual circumstances, and real-world experiences.

While it is possible to stay on OWCP for a long duration, it is also probable that OWCP will cut off one’s benefits at some future, undetermined and unexpected time.  Thus, for the Federal or Postal employee who is on, has been on, or even is contemplating filing for, OWCP/FECA benefits because of a work-related injury, the benefit itself is attractive enough to remain on the rolls of OWCP until such time as (A) the Federal or Postal employee can return back to work, (B) the Federal or Postal Worker is deemed recovered, and the OWCP benefits are cut off, or (C) the Federal or Postal Worker decides to “move on” in life.

The first two choices are essentially out of the arena of “control” of the Federal or Postal employee, for one cannot determine or expedite the recovery period of a medical condition, and further, only the doctor (or its surrogate, the Office of Worker’s Compensation Programs) can determine whether or not the Federal or Postal work is now recovered.  As for the last choice, however, it is the Federal or Postal worker who can make the determination — especially if one has already gotten an approval from the U.S. Office of Personnel Management on one’s Federal Disability Retirement application.

OWCP is not a retirement system; one cannot work at another job while on OWCP; one must sit and do what the OWCP case worker tells you to do.  It is only with Federal Disability Retirement benefits, whether under FERS or CSRS, that one can actually engage in another, alternative vocation or career, and begin to move on in life, and become released from the stagnant waters of a constraining medical condition — or that of OWCP.

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

OPM Disability Retirement: OWCP Acceptance & Federal Disability Retirement

Case acceptance by the Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP) makes it easier for the Agency to make a determination on issues of accommodation, which is one of the elements which must be established in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  

On the one hand, when a Federal employee has been deemed to be “permanent and stationary”, the issue as to whether or not the Agency can reassign the Federal employee, or accommodate him such that the employee can continue to perform all of the essential elements of his or her job, can be easily established, in conjunction with and through the cooperation of a case manager from OWCP.  But even a modified job does not preclude an employee from filing for, and being eligible for, Federal Disability Retirement benefits under FERS or CSRS, precisely because such a modified or “light duty” job is not a permanent position, but rather an ad hoc set of duties as described in the prevailing case of Bracey v. OPM.

On the other hand, when a Federal or Postal employee has been accepted by OWCP and placed on “temporary total disability” — even if the “temporary” nature of such compensation continues on and on for many years — then it makes it easy for the Agency to simply forget about the employee and not even search to see if accommodating the individual is even possible.  

Thus, being placed on OWCP often makes it a simple administrative matter for the Agency.  No accommodations need to be searched for, and the Agency can move on, leaving the Federal or Postal employee in perpetual limbo.  

Concomitantly, however, for the Federal or Postal employee, the fact that one’s medical condition has been accepted by OWCP/DOL can be used as one element to file for Federal Disability Retirement benefits, to show that being on OWCP has some evidentiary weight that (A) the Agency is unable to accommodate the Federal or Postal worker, and (B) that there is persuasive evidence that another Federal Agency has determined that the Federal or Postal employee is disabled, and (C) that receiving temporary total disability is an indicator that one is unable to perform one or more of the essential elements of one’s job.  

Nevertheless, beyond the proof of acceptance by OWCP, the Federal or Postal employee must still affirmatively prove by a preponderance of the evidence that the medical evidence proves that one is unable to perform one or more of the essential elements of one’s job. Being on OWCP may have some minimal persuasive impact; it is still up to the Federal or Postal employee who is preparing, formulating and filing a Federal Disability Retirement application that he or she is eligible for the benefit.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Problem with OWCP

Agencies which have employees who cannot perform one or more of the essential elements of one’s job will often encourage him or her to file for Department of Labor, Office of Workers’ Compensation Program benefits (DOL/OWCP), if the injury or medical condition occurred as a result of an on-the-job incident, or can be shown to have an occupational cause.

That is fine, so far as it goes.  For, OWCP is set up with the intent of addressing those medical conditions and issues which are work-related.  However, when agencies begin to use OWCP as the dumping ground for workers they don’t believe are fully productive, it becomes a problem because OWCP is not intended for long-term compensation, but merely a venue in order to compensate a Federal or Postal employee for a temporary time in order for the worker to recuperate from his or her medical condition or injury, then to return to full duty.  It is not meant to be a retirement system.

Further, it only compensates for those injuries which are causally related to the workplace.  As a dumping ground, it makes it easier for the Federal agency or Postal Service to deny the ability to accommodate the Federal or Postal Worker, or to reassign the individual, and instead to provide the proper forms to file for Workers’ Compensation benefits.  This doesn’t mean, however, that OWCP will accept the claim, either as an original claim or as a recurrence.  OWCP is not a retirement system.  

On the other hand, OPM Disability Retirement under FERS or CSRS is meant to compensate Federal or Postal employees who have a long-term medical condition.  If the agency cannot accommodate the disabled Federal or Postal Worker, that is an option to be considered.  If you are “unwanted” — and the agency shows every inclination of that — it may be time to consider the option of Federal Disability Retirement.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Work as the Causal Inception

In a claim filed with the Office of Workers’ Compensation Programs (OWCP), causality and whether it is work-related, occupationally related, etc., are issues which will inevitably arise, precisely because the statutory mandates which govern OWCP rules and regulations require proof of a causal connection.

Under Federal Disability Retirement for FERS & CSRS employees, however, such work-related causality is not an issue, because it is not a requirement that a medical condition was “caused” while performing one’s Federal or Postal job, or that there be some connection to an occupational hazard or inherent workplace relationship.  That does not mean, however, that there cannot be a workplace connection; merely that, whether or not there is any such relationship between the medical condition and the work environment, it is not an issue which possesses any significant relevance to the filing of a Federal Disability Retirement application.  

These “fine distinctions” can be confusing for non-lawyers (and, indeed, even for lawyers who are supposedly trained in being able to analytically dissect multiple compounding concepts within statutory language).  

“Causality” to the workplace can, however, be discussed and even referred to in a medical report, or in the Applicant’s Statement of Disability (Standard Form 3112A), as a provision for historical and background context, but it is not an essential element to prove in a Federal Disability Retirement application under FERS or CSRS.  Too much emphasis on the historical context, however, can lead to the unforeseen and dangerous consequence of having one’s case characterized as a “situational disability“, and one must always be cognizant of such a danger.

Sincerely,

Robert R. McGill, Esquire

OWCP Payments & FERS/CSRS Disability Retirement

There are many Federal and Postal workers who have been receiving OWCP payments (Temporary Total Disability benefits) for years.  Such payments can, indeed, continue for many years, or for a few months, depending upon the length of time it may take for a medical condition to persist.  

The problem with relying upon OWCP as a retirement system is that, strictly speaking, it is not a retirement system.  The Department of Labor can begin the process of sending the benefit recipient to a “Second Opinion” doctor, and the process of attempting to cut off OWCP benefits has thus begun.  

Further, there is often the problem of reliance upon OWCP, resulting in a Federal or Postal worker failing to file for Federal Disability Retirement benefits within 1 year of being separated from Federal Service.  This sometimes happens because the Federal or Postal Worker begins to feel secure in the monthly OWCP benefit, and because it pays a higher rate than FERS or CSRS Disability Retirement benefits.  However, one should never be fooled by the tenuous nature of OWCP — it is not meant to be a retirement system, and most Federal and Postal workers who have experienced first-hand the treatment by OWCP/DOL will attest to the fact that they can be sudden, arbitrary, and difficult to deal with.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: OWCP Disability

Periodically, a telephone call will begin with the statement that the Federal or Postal worker has been on “Disability” for the past _____ years.  The first question that must be asked is, “Are you speaking about OPM Disability Retirement?”  If the answer is one of confusion or lack of clarity, then a further query must be made, trying to establish whether or not the Federal or Postal worker is speaking about receiving payments from the Department of Labor, Office of Worker’s Compensation.

As it turns out, most people who refer to being on “Disability” often mean that they are receiving Worker’s Compensation.  Once this is established, then it becomes important to know whether or not the Federal or Postal Worker has been separated from Federal Service; and if so, when was he or she separated (because if it has been over 1 year, then it is too late to file for Federal Disability Retirement benefits from the Office of Personnel Management).  

Receiving “disability” is often confusing to the Federal or Postal employee.  A revealing fact is when the individual states that the “Agency put me on disability”.  This normally means that the person is on OWCP.  Or, if you are receiving 75% of one’s pay.  Remember that there is a distinction and a difference between OWCP and OPM Disability Retirement.  The former pays well, but may not last forever.  Indeed, if the latter is not applied for within the time-frame allowed, you will be barred from ever applying for it.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: OWCP, SSD, NRP, Etc.

Nothing works in a vacuum.  Issues surround medical disabilities, the Federal and Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Federal or Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps. 

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark. 

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire