Medical Retirement for Federal Workers: VA Disability Issues

Many Veterans find themselves pursuing a career in the Federal work force, including the U.S. Postal Service (although, technically, the U.S. Postal Service is a quasi-Federal agency, but still part of the FERS & CSRS retirement systems, and as such, all Postal Workers are eligible for Federal Disability Retirement benefits under FERS or CSRS).

Such a career path often results in a medical condition which, while originating in the military or while serving in the military, becomes progressively deteriorating while working for the Federal government or the U.S. Postal Service.

Often, such a scenario comprises a dual, or parallel occurrence, in that the Veteran’s medical conditions continue to worsen, and in its progressively worsening state, the Veteran is able to apply for a VA Disability rate increase while, concurrently, the impact upon the Veteran’s ability to continue to perform all of the essential elements of his or her job with the Federal Agency or Postal Service continues to grow.

The parallel events, at some point on a graph, begin to curve inversely, and intersect where (A) the VA disability rating, both in numerical increase and in a factual, debilitating medical reality, deteriorates to a point where (B) the Federal or Postal employee is no longer able to perform the essential elements of one’s job.

At that point of intersection, or sometime prior to the clash of the inverse curve, it may be time for the Veteran to consider preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS.  In such a fact-scenario, the medical evidence from the VA side of things can be used for purposes of evidentiary proof in filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Quantification v. Symptom Delineation

Different systems and processes require different standards of proof, criteria, and elements of qualifying evidence in order to be eligible and entitled.  Applying for, and getting approved, a Federal Disability Retirement application under either FERS or CSRS, requires that certain legal criteria be met. 

Quantification of a medical condition, although sometimes helpful in further expanding a descriptive narrative of a specific medical condition, is normally rather irrelevant in a Federal Disability Retirement case.  By “quantification” is meant the assigning of a number — of rating a person’s specific medical condition or relative to the “whole body”. 

Thus, in OWCP and VA Claims, there will often be a number assigned — 10% for X medical condition; a “combined” rating of 80%, etc.  One would expect that a high quantification of a medical condition would translate into a more serious appraisal of that medical condition, but various factors need to be considered when attempting to utilize such numbers in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  Thus, for instance, a 10% rating upon a person’s foot may seem relatively insignificant when applied to a sedentary job, but for a person who must be on his or her feet all day, with requirements of constant standing, walking, etc., it becomes not only “significant”, but potentially a singularly viable basis for filing a Federal Disability Retirement application under FERS or CSRS. 

One must be careful in playing the “numbers game” in formulating, preparing and filing a Federal Disability Retirement application under FERS or CSRS.  Numbers never tell the full story, but they can be used to help describe and delineate the necessary requirements to be approved for a Federal Disability Retirement application by the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Numbers

Numbers, statistics and percentages rarely tell a complete story, especially in relation to a person’s medical condition.  In Federal Disability Retirement applications under FERS or CSRS, numbers must be utilized carefully and, more importantly, effectively.  Moreover, numbers can be used to diminish or otherwise minimize the seriousness of a medical condition.

For example, if the loss of a forefinger of a right-hand dominant individual would constitute a 5% disability of the “whole person”, does that tell the full story of the impact of such a medical condition upon one’s ability to perform a job which requires daily manual dexterity & use of the right hand?  Or if the loss of vision in one eye were deemed to be a 10% disability, how would one quantify such a medical condition for a computer graphics engineer?

Scheduled awards for Worker’s Comp requires such quantification; and the Veterans Administration ascribes service-connected disability ratings, but unless one descriptively defines the relevance of such numbers to the impact upon one’s ability/inability to perform the essential elements of one’s job, such numbers lose their importance and relevance.

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to recognize that the language used, and not the numbers ascribed, determines the relevance and ultimate success.  Numbers must be descriptively quantified; numbers in and of themselves never tell a story, except perhaps to the mathematician, which the workers at the Office of Personnel Management are not.

Sincerely,

Robert R. McGill, Esquire

 

Federal Worker Disability Retirement: VA Benefits

As each collateral source of disability benefits must be carefully assessed before utilizing it as a tool in filing for Federal Disability Retirement benefits under FERS & CSRS, so it is with those benefits which rely primarily upon percentage ratings. First, one should note that, if a Federal Disability Retirement application is approved under FERS or CSRS, that there is no offsetting of benefits between Federal Disability Retirement and Veterans benefits.  The two are treated as independent of one another.  

At the same time, however, that does not mean that you cannot utilize a VA disability rating decision in pursuance of an approval from the Office of Personnel Management, when filing for Federal Disability Retirement benefits under FERS & CSRS.  Indeed, there is case-law which states that the Office of Personnel Management, or the Merit Systems Protection Board (if it has been previously denied twice and is appealed to the MSPB) must consider such evidence in the totality of all of the evidence, in making a determination on the approval or disapproval/denial of a FERS or CSRS Disability Retirement application.  

If a VA Rating decision is used, however, in such an application, it must be done with some thought and care.  How to go about using it; what to use; whether to use; those are all discretionary questions which must be carefully considered.  In such cases, it is prudent to seek the advice and counsel of an attorney who specializes in Federal Disability Retirement law.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Tools to Use

I am often asked, when filing for Federal Disability Retirement benefits under FERS or CSRS, Will you use … ?  From the range of tools of evidence to use — including VA disability ratings, to OWCP “CA” forms, MMI ratings, Veterans Administration records, Second opinion doctor’s report, referee opinion report, letters from the Agency indicating unavailability of work; letters from the agency indicating the extent and limitation of willingness to provide for an “accommodation” (whether legally sufficient to rise to the level of meeting the definition of what it means to be an “accommodation” under the law), and multiple other tools — all of it is a matter of legal discretion.  

The general rule that I utilize is that, If it is helpful to my client’s case to prove to the Office of Personnel Management that my client’s Federal Disability Retirement application under FERS or CSRS will be enhanced and aided by the material, then I will use it.  The discretionary issue which the attorney representing an applicant for Federal Disability Retirement benefits is essentially to “match” the document or piece of evidence with the particular issues which must be proven, and that is a matter of carefully reviewing each piece of evidence in compiling a compendium of evidence which makes up the “whole”.  It takes time, patience, and sufficient legal knowledge to understand which issues are important in proving a Federal Disability Retirement case under FERS or CSRS to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Appropriate Language Game

In filing an application for OPM Disability Retirement benefits under FERS or CSRS, there are many questions that are posed for the person who is just being introduced to the concept of potentially filing for Federal Disability Retirement benefits under FERS or CSRS, and many of the sub-topical concepts are often “counter-intuitive”.  This is because most people — including doctors and practicing lawyers — are unfamiliar with the laws, processes, procedures and regulations surrounding and governing Federal Disability Retirement laws under FERS and CSRS, but are instead familiar with the legal arenas of Social Security Disability, Veteran’s Administration disability benefits or Department of Labor, Office of Worker’s Compensation issues. 

In those “other” areas of legal specialties, there are doctors who simply specialize in making disability determinations — of evaluating a “patient”, determining the extent of the disability, having the Federal or Postal employee undergo a “Functional Capacity Evaluation“, and ascribing a “disability rating” and determining when, or if, the person has reached “Maximum Medical Improvement“.  Each arena of law has what Wittgenstein once coined as a “language game” — a specific set of language usage which applies only within a certain context, and those “other areas” of law are often inconsistent and foreign to the arena of Federal Disability Retirement issues under FERS or CSRS.  Often, when people call me, one of the first things I do is to set about “teaching” the caller the differences, distinctions, and inapplicability of one set of language games upon another set of language games, as well as how the two (or three) relate to each other.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Preexisting Conditions

There is still some confusion with respect to the relevance of preexisting medical conditions, or medical conditions which were incurred while working, or outside of the workplace, and the impact of such medical disabilities upon one’s right to file for disability retirement under FERS or CSRS. This confusion is evident from some of the questions I have been recently asked.

Remember that preexisting medical conditions are irrelevant to filing for Federal Disability Retirement benefits, in most cases; the fact that an individual has been able to perform the essential elements of one’s job for many years, but comes to a point in his or her career where the medical condition has been exacerbated, or deteriorated, to the point where it begins to prevent one from performing one or more of the essential elements of one’s job, is all that is needed to be shown.

It matters not that the medical condition “preexisted” one’s Federal service; and, indeed, many of my client’s began working with a VA disability rating, but worked successfully for a number of years, until the medical condition(s) underlying the VA disability rating worsened, or came to a point where it began to impact his or her ability to perform the job functions. Similarly, whether or not the injury or medical disability was incurred while working or while on a skiing trip, is irrelevant. The primary point and focus in FERS & CSRS disability retirements cases, is that a person has the minimum years of Federal Service (5 years for CSRS; 18 months for FERS), and during the person’s Federal Service, he or she incurred a medical condition such that it prevents one from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire