USPS and Federal Disability Claims: Medical Conditions which Predate Federal or Postal Employment

Often, there is a concern about medical conditions which one suffers from, which “predate” employment in the Federal Sector, or with the U.S. Postal Service.  Such conditions are often identified as “preexisting medical conditions” — meaning, thereby, that they exist prior to an event.

In the context of OWCP (Federal Worker’s Compensation), under the aegis of the Department of Labor, such an issue normally involves the assertion and allegation (by the Department of Labor, Office of Worker’s Compensation Programs) that a Medical Condition-X already existed prior to Event-Y — the latter normally constituting the “on-the-job” accident or occurrence, or an occupational disease, etc.  Because causation — the “what caused the injury” issue — is important in OWCP/DOL cases, the concern of preexisting conditions is normally a point of contention between the Federal worker and the Federal Government/Department of Labor.

However, in OPM Disability Retirement cases, because causation is not an “issue” of concern (the “how” or “where” it happened is not a relevant legal criteria of proof), it rarely becomes a point of conflict between the Office of Personnel Management and the Federal or Postal employee.

It can become of interest, however, for the Office of Personnel Management, in a Federal Disability Retirement application, if a Federal or Postal worker has been hired and working in a particular job, with a specific medical condition for many years, successfully, but then files for Federal Disability Retirement benefits.  The reason it may become of some interest, however, is not as to the “causation” issue (of the “how” or “where” it happened), but rather, to the question:  Why is it that the Federal or Postal employee who has had a Medical Condition-X all of these years can now claim not to be able to perform Essential Elements Y & Z now?

That is the point where a medical condition existing prior to one’s Federal or Postal employment may be of some interest to the U.S. Office of Personnel Management.  It is, however, easily addressed; it just needs to be discussed in the right way.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Is the Concept of “Preexisting Condition” Ever an Issue?

Sometimes, the Office of Personnel Management will refer to a medical condition which “preexisted” — and it is often confusing as to what they are referring to.  The term “preexisting medical condition” must necessarily imply the question, “Preexisting to what”?  

For health insurance coverage, the issue is obviously one of a medical condition which existed prior to the start of medical coverage, and thus the question becomes whether or not the insurance company has an obligation to pay for medical bills incurred for treatment which existed and began prior to the terms of the policy.  

For purposes of Federal Disability Retirement, however, the question of a preexisting medical condition often encapsulates an admixture of multiple issues, based upon confusing a variety of concepts.  In a denial issued by the Office of Personnel Management, some cases will be denied based upon the assertion that a particular medical condition upon which a Federal Disability Retirement application is based, preexisted the time of Federal Service, and the Federal or Postal employee — despite the existence of the medical condition — was able to perform the essential elements of the duties of the Federal or Postal position.

Thus, a person with a confirmed Veteran’s Administration rating enters into the Federal government and is able to perform the job duties as required (for example).  Such an argument (or lack thereof) by the Office of Personnel Management is thus mixing a couple of issues, and conceptually identifying it as “preexisting condition”:  that the Federal or Postal employee has a medical condition which was identified prior to entering the Federal Service; that he or she was able to successfully perform the essential elements of the job; that the same medical condition is now the basis (or at least one of them) for a Federal Disability Retirement application.  But the issue is not really one of “preexisting condition” — for, whether the medical condition existed prior to or during one’s Federal Service is really an irrelevant issue — but rather, whether or not the medical condition as such became worse such that it now prevents a Federal or Postal employee to perform one or more of the essential elements of one’s job.  

Sometimes, people get the notion that by utilizing certain language, shouting certain sophisticated-sounding catch-phrases, or referring to concepts which seem intelligible, that it actually “means” something.  The concept of “preexisting conditions” is without meaning in a Federal Disability Retirement application, precisely because the law is neutral concerning that issue.  It may sound serious, but this is not OWCP or some other legal forum which applies a criteria regarding “preexisting conditions”.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: OPM & History of Medical Conditions

There is a distinction to be made between one’s medical history and an extensive discussion of workplace issues which may have contributed to a causal impetus for a medical condition.  

The Office of Personnel Management is rarely interested in receiving information concerning the history or causation of a medical condition — especially from the Applicant in a Federal Disability Retirement application.  While the treating doctor may briefly refer to the historical genesis of a medical condition in a narrative report, it is the focus of the present-to-recent-past impact of one’s medical conditions upon the essential elements of one’s job which the Office of Personnel Management is interested in reviewing.

Again, remember that a Federal Disability Retirement application is a “paper presentation” to an onerous, overbearing and overworked Federal bureaucracy, where one’s private affairs (the most private of all — one’s medical conditions and their impact upon one’s personal and professional conduct of affairs) are to be presented, received, and ultimately reviewed.  

History of the inception, origin and impact of a medical condition may be peripherally relevant to the treating doctor, and it would be appropriate to include such historical background in a medical report; but for the Applicant, to delve too deeply and extensively upon such historical context may place the peripheral into a central focus where it should not be.

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 Employee Medical Retirement: Preexisting Conditions

The Office of Personnel Management will sometimes make the following fallacious argument:  “Because your medical condition appears to have preexisted the time of your Federal Service, and you have been able to perform your job, you are not entitled to Federal Disability Retirement benefits.”  

This argument may take on various forms, with embellishments on the language used, but the argument as quoted represents the essence of what OPM will often state.  While the argument itself makes one scratch one’s head, there are implicit sub-arguments which, if extracted, extrapolated and projected/assumed, may bring one to a better understanding of what OPM is trying to say, and thereby be able to rebut and address such an argument.  The expanded version of the argument goes as follows:  “You had a diagnosed medical condition X prior to beginning your career with the Federal Service (often evidenced by a VA disability rating, or an MRI showing such).  You were placed in job Y, which you were able to do all of these many years.  From the time of your Federal Service to the present, there has been no defining moment or event which reveals that your condition worsened; only that you now state that you cannot perform your job.”  

This expanded version is what OPM is often attempting to argue.  Inasmuch as “pre-existing conditions” are not supposed to be a factor in Federal Disability Retirement cases (as opposed to being one in FECA cases), how does one address it?  By pointing out to the progressively deteriorating nature of the medical condition; by having a discussion with the treating doctor that, over time, a chronic condition can progressively deteriorate the human body, through fatigue, longevity, and chronicity of pain (or a chronic nature of Major Depression, Anxiety, stress, etc.), and such progressive deterioration often arrives at a critical point where, once passed, there is a sudden decline in the ability of a Federal or Postal worker to continue to perform a certain type of work.  

The key to an argument is to reframe the argument, so that one may understand and address it.  Only upon understanding the argument, can one begin to address it.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The "No Other Choice" Case

Then, of course, there are cases where an individual has “no other choice” than to file for disability retirement. Sometimes, it is a chance that is taken — the chance of paying an attorney. Yes, adverse removal actions can impact one’s chances of obtaining disability retirement benefits. A case study: A recent client was removed from a Federal Agency for criminal conduct (obviously, no names will be used, and the facts will be somewhat altered to protect the client’s confidentiality of information). The individual was nowhere near retirement age; but suffice it to say that he/she had been a loyal employee for 20 years. He/she had a medical condition — a psychiatric condition, which pre-dated the criminal conduct. He/she hired me to obtain disability retirement.

What choice did the person have? He/she really had “no other choice” other than to walk away with nothing, or take the chance of paying an attorney (in this case, me). I was blunt about the entire affair: Normally, I am able to get most of my clients approved at the first or second stage of the process, and I will normally ascribe a “success-rate” to a case; in this instance, the probable rate of success, in my opinion, was lower than my normal prediction. Nevertheless, he/she wanted to go forward with it. I contacted the doctors and guided them into writing a forthright medical report; today, the client is receiving his/her disability retirement annuity. Did the person “deserve it” despite the criminal conduct? Absolutely! His/her medical condition pre-dated the criminal conduct, and in fact was a major factor in the actuation of the criminal conduct itself. I am happy for the client, and from a professional standpoint, it is always satisfying to win a case where a client entrusted a case in which he/she had “no other choice” — but once the choice was made, to have made the right choice.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability retirement: End of Summer and Postal VER

Summer is almost at an end. The Postal Service, through the auspices of the Office of Personnel Management, is offering Voluntary Early Retirement (VER). For many, this is a positive thing; the decision to take the VER should be a financial decision. An analysis comparing the monetary return should be made between what an employee would receive under the VER and under disability retirement; if the financial difference is great, then obviously the employee should consider filing for disability retirement after the VER has been approved.

Remember that the employee would have one (1) year to file for disability retirement benefits, after the individual has been separated from service. Steps should be taken now, however, before accepting/filing for the VER, to establish the medical condition and disability prior to separation from service. This can be done by discussing the medical condition with one’s treating doctor, before the VER is applied for. Such early steps will help ensure the success of a future filing for disability retirement benefits — because the employee must establish that the medical condition impacted one’s ability to perform the essential elements of one’s job prior to separation from Federal Service.

Sincerely,

Robert R. McGill, Esquire