OPM Medical Retirement Attorney: Formulating the Effective Case

Is it inherently presupposed that a case to be formulated is one which should be “effective”?  By the insertion of that term, of course, it immediately implies a retrospective vantage point — an “ends” to “means” view of an outcome-based approach.

If a Federal or Postal employee who files for Federal Disability Retirement benefits, whether under FERS, CSRS or CSRS Offset, receives a denial from the U.S. Office of Personnel Management, one assumes that the case was not “effectively” formulated.  On the other hand, if an approval is received from OPM, one need not consider any such issue, but merely moves on to the “when” phase — as in, “When am I going to get paid“?

Outcome-based formulation of a case is never an unwise approach; but the mere fact that a denial is issued by OPM after reviewing a given Federal Disability Retirement application, does not mean that the case itself was not originally “effective” in the formulation and submission.

There are OPM “administrative specialists” who systematically deny cases; certain others who require a higher standard of proof beyond what the law mandates; and even those who extrapolate clear evidence in a denial which establishes eligibility for Federal Disability Retirement, but nevertheless concludes with a disapproval.  Such arbitrary outcomes may seem unfair and unwarranted, but it is a reality which must be faced.

In light of this, the positive outlook to embrace is the fact that Federal OPM Disability Retirement is an administrative process with multiple stages for appeals and additional bites at the proverbial apple.  From the outset, it is always a good idea to carefully prepare, formulate and file an “effective” case; but the mere fact that the first attempt fails to achieve the outcome desired, does not diminish or extinguish the positive assessment reached at the outset when first the Federal Disability Retirement packet was submitted; rather, it just means that additional proof and evidentiary addendum must be forthcoming to satisfy the bureaucratic process of further effectuating the efficacy of an already-effective case.

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: The OWCP Intersection

Federal Disability Retirement benefits under FERS or CSRS is oblivious and unconcerned with whether or not a particular medical condition occurred “on-the-job” or not.  Rather, the focus is upon (A) the existence of a medical condition along with the symptomatologies and their manifestations, and (B) the impact of the medical condition(s) upon one’s ability/inability to perform all of the essential elements of one’s job.  

Thus, “causality” in all of its forms is an irrelevant issue — whether “how it happened”, “where it happened”, “what happened”, etc.  Causation is a legal/medical issue which may be interesting, and is certainly one which the Office of Worker’s Compensation Programs inquires about, but it is a “non-starter” for purposes of Federal Disability Retirement benefits under FERS or CSRS.  

As such, when a Federal or Postal employee who has been injured on the job, or who has incurred a medical condition from a worksite because of inherently hazardous medical triggers reasonably related to the particular occupation of an individual, an inordinate amount of focus is often paid as to the “causality” of a medical condition.  While this may be of historical interest — both to a doctor as well as to FECA/OWCP — it is an issue which should play a lesser role of importance in a Federal Disability Retirement application.  

For eligibility in filing a Federal Disability Retirement application under FERS or CSRS, where something happened, what happened, or when it happened, is far less important than how much of an impact a medical condition has, and for how long, upon one’s ability/inability to perform the essential elements of one’s Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM Disability & OWCP Disability (Continuing…)

A person who is on OWCP Disability payments — 3/4 of one’s gross pay if married or with dependents, or 2/3 of one’s gross pay if single without dependents – may well find the comfort of such payments and the security of such income to be relatively “safe”.  The old adage that one does not read the fine print during times of smooth sailing, and only begins to worry about issues when things go awry, is something to be kept in mind.  If a Federal or Postal employee is receiving OWCP Disability payments, and as such, one’s financial stability is somewhat assured because of it, that is precisely the time to be considering one’s future.  

OWCP Disability payments have a formal designation — it is called “Temporary Total Disability“.  The focus should be upon the first of the three terms — temporary.  It is not meant to be a permanent feature; OWCP is not a retirement system.  If placed on OWCP for over a year, the Federal Agency or the Postal Service will often separate and remove a Federal or Postal employee from the employment rolls of the Agency.  Once removed, the Federal or Postal employee has only up to one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS.  Once that year passes, you cannot file.  Years later, when OWCP & the Department of Labor stop those “Disability payments” for whatever reason, you cannot then start thinking about filing for Federal Disability Retirement benefits under FERS or CSRS. You will be reminded that TTD stands for just that — Temporary Total Disability. It will then be too late.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OWCP Disability & OPM Disability

A good indicator that an individual is on OWCP Disability, and not on OPM (Office of Personnel Management) Disability, is that the Federal or Postal employee did nothing other than to file a “CA” form.  Further, OWCP Disability is granted for occupational diseases, or for injuries sustained while “on the job”.  Another indicator (an important one) is that, in order to file for Federal Disability Retirement benefits under FERS or CSRS, multiple forms must be filled out, including:  Application for Immediate Retirement; Applicant’s Statement of Disability; a Supervisor’s Statement; and multiple other forms.  

The term “disability” is often thrown about in confusing ways, such that a person who is on “disability pay” or “on disability” may think that one has filed for Federal Disability Retirement benefits under FERS or CSRS.  The confusion is an important one to recognize, because a person who is eligible and entitled to file for Federal Disability Retirement benefits under FERS or CSRS must do so either while a Federal or Postal employee, or within 1 year of being separated from Federal Service.  If a Federal or Postal employee fails to file within the statutory timeframe, he or she will lose this benefit forever.  That is why it is important to make a distinction between “OWCP Disability” and “OPM Disability”, precisely because while one is on OWCP Disability, one should also probably be considering filing for OPM Disability Retirement benefits at some point.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reminder on the 1-Year Statute

Just a reminder, which is given because of continuing and repetitive questions about the 1-year statute of limitations.  Remember that those who wish to file for Federal or Postal Disability retirement benefits under FERS or CSRS must do so either (A) while a Federal or Postal employee (18 months minimum under FERS; 5 years minimum under CSRS), or (B) within 1 year of being separated from Federal Service.  By “separated” it means actually being terminated from the Federal Agency, whether by resignation or by Agency action.

The 1-year statute of limitations does not begin to toll except when you are separated from Federal Service.  Thus, being on LWOP does not begin to toll the statute; being injured or on OWCP does not begin to toll the statute.  By “toll the statute”, what is meant is that the right to file for OPM Disability Retirement benefits for FERS or CSRS employees does not begin to “count down” unless and until you are actually separated from Federal Service.  This is meant as a continuing clarification of the issue, written because of the questions which have been asked of me over the past month or so.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: RIF

If a person is separated from Federal Service pursuant to a Reduction-in-Force, can he file an application for Federal Disability Retirement benefits under FERS or CSRS?  As with all such questions, “It Depends”.  If a person has a medical disability prior to the separation from service, and the doctor will state that prior to the separation, the Federal or Postal employee could no longer perform one or more of the essential elements of the job, then the answer is that he has a Federal Disability Retirement case.  Whether from a RIF or for some other reasons is ultimately irrelevant; the point is that one must ultimately show that prior to separation from Federal Service — any type of separation — the connection between the medical condition and the type of job one has, must be made.  Remember, further, that during the time of Federal Employment, if a person was receiving OWCP partial disability payments for an hour, two hours, three hours, per week or per day, that is further evidence that the Federal or Postal employee was unable to perform all of the essential elements of one’s job.  For, as with any full-time Federal sector job, being able to work 8 hours per day, 5 days per week, is part of the essential element of such a job.

Sincerely,

Robert R. McGill, Esquire