Federal Employee Medical Retirement: A Real-life Hypothetical

Assume the following hypothetical:  A Federal or Postal employee who is 48 years old, with 25 years of Federal Service, engages in a type of work which is repetitive, day in and day out (yes, even this sentence is repetitive and redundant), full time, over the course of those 25 years.  

One day, while moving a piece of furniture at the direction of his spouse, he feels a sudden and sharp pain in his back.  He has to sit down and rest for a while.  The “for a while” turns into a visit to the emergency room, then to his family doctor.  The MRI shows a disc bulge at L5-S1, with multi-level disc degeneration, spinal stenosis, and other degenerative changes.  Despite multiple modalities of treatments, including epidural steroidal shots, physical therapy, variances of medication regimens, etc. (and you can even add a surgical intervention), the pain continues to worsen and deteriorate his medical condition.  The chronic pain prevents him from performing his job.  Whether sedentary or physical, the high distractability of the pain results in his poor performance.  

Can he/she file an OWCP claim?  Such a claim is submitted and rejected, because the issue of causality cannot be established.  An appeal is filed, and it is again denied.  The treating Neurologist and Orthopaedic Specialist are unwilling to establish a direct causal link.  But one argues:  Do those 25 years of repetitive work account for nothing?  Can it all have occurred because of the singular occurrence?  Does my medical condition reflect that of a person twice my age merely because of a single incident?  

It is precisely because causality is the crux of OWCP, that Federal Disability Retirement under FERS or CSRS is an important benefit for all Federal and Postal employees. OWCP/FECA is a benefit which is great for the limited role it plays; Federal Disability Retirement is a benefit with wider applicability, and the chance for the Federal or Postal employee to enter into another phase of life.

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

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

Federal & Postal Service Disability Retirement: Hindrances

One would think that the Human Resources Department of the Agency from which a Federal or Postal employee is attempting to file a Federal Disability Retirement application, would be a “helpful” entity.  It is indeed a baffling phenomena when one pauses and reflects upon it:  What is the purpose of the Human Resources Department?  Specifically, what existential purpose does a person serve, who has a positional designation of “Disability Retirement Specialist”?  Let me attempt to answer the question in the way it is supposed to be answer:  1.  The purpose of the Human Resources Department is to help the Federal and Postal employees of the Agency or Department of which they have been established.  2.  The person who holds the designated job entitled, “Disability Retirement Specialist” is one who, theoretically, is there to assist in any way, within the legal confines established by the Agency, in as much as possible, to help the Federal or Postal employee to finalized and complete the disability retirement packet for submission to the Office of Personnel Management.  Now, let me pose the following hypothetical:  an H.R. person calls up and says, “I cannot forward the disability retirement packet because Box Number ___ on Standard Form _____ has not been checked.”  Does this sound like the Human Resources Department is fulfilling the existential purpose for which it was established?  On the other hand, rhetorical questions are fun to ask, precisely because they are rhetorical, and allow one to expiate some build-up of frustrations on a Friday night, after a long week dealing with multiple agencies.  Have a good weekend.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Clarity over Question

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case. 

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

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