Federal Worker Disability Retirement: Persuading with Persuasive Arguments

The question is often asked concerning whether or not and to what extent other collateral agency decisions can impact a Federal Disability Retirement application filed with the U.S. Office of Personnel Management (OPM), whether under FERS or CSRS.

The only answer which can be provided is the standard, “It depends…”  The reason why “it depends” is precisely because utilization of any persuasive information or evidence is primarily dependent upon the persuasive efficacy of the evidence itself.

There is certainly legal case-law support for collateral evidentiary submissions, including SSDI, Department of Veterans Affairs ratings, Military Board findings, and DOL/OWCP second opinion and “referee” findings, etc.  Thus, the issue is not whether or not there is a basis for using such third-hand sources to support the primary evidentiary foundation of a Federal Disability Retirement application; rather, the issue becomes one of how effectively should one use such evidence.  Such a question, of course, can only depend upon the particular and unique circumstances of each case, by analyzing and reviewing the strength, applicability, and relevance of the documented information.

Sometimes, use of such collateral evidence can somewhat backfire, in that OPM will actually point to such evidence and discuss it in a way which supports a denial.  Care and discretion must always be taken in using collateral information; it is always the primacy of the primary information which must be used, and used effectively.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Staying within the Acceptable Construct

Perspectives are funny matters:  everyone has them; some are more valid than others; in certain circumstances, the wrong perspective, however, can result in negative unintended consequences.

Thus, in a Federal Disability Retirement application under either FERS or CSRS, the Federal or Postal employee who insists upon filing collateral actions against the Agency, while concurrently filing for Federal Disability Retirement benefits, can have different and differing perspectives for each legal venue filed.  

In an EEOC action, the Federal or Postal employee can allege the multiple incidents of the workplace environment and the hostility, discriminatory actions perpetrated, etc., and the resulting damages incurred (including medical conditions suffered); in a grievance procedure, the Federal or Postal employee can assert the wrongful actions of the agency; and in a Federal Court case, claims of Agency and Supervisor misconduct and their deleterious impact upon one’s career — all of these can be filed, asserted and claimed for, while at the same time have a pending Federal Disability Retirement application with the Office of Personnel Management.  

Each can have its own unique perspective; each can assert a different quadrant of one’s mouth.  However, be aware of the danger that, if a Federal Disability Retirement application is denied at the initial stage of the process, and again at the Reconsideration Stage of the process, and is appealed to the Merit Systems Protection Board, the Office of Personnel Management is entitled to “Discovery” of such collateral procedures.  

Such evidence of collateral procedures may well lead to a potential conclusion that one’s medical condition can be characterized as “situational” — and that is a perspective which may well defeat a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Collateral Source Impact

The persuasive impact from collateral sources can take one of two primary forms:  legal or medical.  In fighting for one’s Federal Disability Retirement benefits under FERS or CSRS, it is becoming more and more apparent that the Office of Personnel Management is taking a very aggressive approach at evaluating each Federal Disability Retirement application.  

Whether this is a change in administrative policy — and no one knows or can find out, because only OPM possesses internal statistical findings of how many approvals versus rejections they have issued, year by year, over the past decade, and whether there is a significant change — or merely a “sense” by the undersigned writer; or, just as probable, there is a growing carelessness and lack of proper scrutiny because of a rush to catch up, resulting from the growing backlog of cases; whatever the multitude of reasons, it is important to utilize every tool available to the Federal or Postal worker in an effort to win one’s Federal Disability Retirement benefits under FERS or CSRS.  

Collateral sources of administrative determinations and medical conclusions, whether they originate from OWCP/DOL Second Opinion reports; SSDI determinations and the medical records and reports upon which they are based; VA rating increases, as well as findings from the VA disability determinations; military board findings; Agency determinations, including results from “Fitness for Duty” examinations; other “Independent Medical Examinations” — all constitute collateral sources of evidentiary relevance, depending upon a careful scrutiny of each piece of such evidence.  

It is unwise to include everything; everything must be reviewed prior to submission; collateral legal determinations should be justified with legal arguments and precedents; medical determinations should be carefully noted as part of the Federal Disability Retirement packet.  Federal and Postal workers who are filing for Federal Disability Retirement benefits under FERS or CSRS should use every means available, including collateral sources, both for legal as well as medical evidence, in the quest to win an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Collateral Impact

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there is the question of whether collateral or parallel venues of disability benefits can be applied for; whether there is a conflict between such “other” filings; and further, what impact each of the alternative sources have on each other.  

Such other venues of applied benefits could include the Office of Worker’s Compensation, under the Federal Employees Compensation Act/Department of Labor (OWCP/FECA/DOL); Social Security Disability; Unemployment compensation; VA Disability benefits, private disability policies, etc.

As a general rule, there is no reason why all of such benefits should not be applied for concurrently.  Is there a conflict between each?  By the term, “conflict”, would imply something negative or improper in the mere filing.  To that superficial question (and by “superficial” is merely meant an initial, fundamental question, and not as to the depth of any complexity), the answer is a simple “no”.  There is nothing improper in filing for multiple and concurrent benefits, so long as the questions asked by each benefit/entity is answered honestly and truthfully.  

As for “impact” between one or the other, some benefits have exclusive compensation (OWCP & FERS or CSRS disability annuities cannot be paid at the same time), some have offsetting benefits (FERS & SSDI offset each other); some have no impact on each other at all (VA benefits & Federal Disability Retirement benefits can be received concurrently, for example), while still others depend upon the language of the contract (e.g., private disability policies).  

A still further question concerns whether or not medical reports and benefit determinations from one source can impact, and in what way, another source.  That subject will be discussed in another blog.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Continuing Issues with Collateral Impact

It is sometimes asked whether or not other issues which are concurrently and concomitantly filed can, and to what extent, impact the viability of a Federal Disability Retirement application submitted for approval to the Office of Personnel Management.

In order to comprehend such a question, it is important to view the answer from the various perspective of the parties.  First, from the viewpoint of the Office of Personnel Management — unless they are specifically made aware of such collateral issues — such peripheral “other issues” would have no bearing upon a Federal Disability Retirement application unless it concerned the potential offset questions of Social Security Disability.  

Whether a court filing which concerns a discrimination issue; or an EEOC filing, or perhaps a grievance procedure; all such collateral issues, from the viewpoint of the Office of Personnel Management, would have no relevance.  Then, of course, there is the perspective of the “other” forum — perhaps there is an ongoing case at the Merit Systems Protection Board, or with the EEOC, or even a Federal Court case.  

Whether, from the “other” forum, there may be an interest as to whether the Federal or Postal employee has filed for Federal Disability Retirement benefits with the Office of Personnel Management, is a question which only the other forum can answer.  

If a claim is made in the alternate forum where the requested relief involves getting one’s job back, and at the same time, one has declared by the mere filing of a Federal Disability Retirement application under FERS or CSRS with the Office of Personnel Management, that one is no longer able to perform all of the essential elements of one’s job, then from the “other” perspective, what has been filed with the Office of Personnel Management may be of some interest to the other forum.  However, remember that seemingly contradictory concurrent filings are not necessarily negatively viewed, especially if such actions are engaged in order to preserve one’s right to assert a legal standing.  

Ultimately, however, it is a rare case indeed that an alternate, concurrent, concomitant filing with another forum has any relevance or impact upon a Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Exaggerated Focus

Often, in preparing and filing a Federal Disability Retirement application, the distractions of collateral issues can be heightened to a level of exaggerated focus, such that it formulates and creates a perception which is beyond the proper perspective which it should be accorded.

Thus, for instance, the issue of whether or not a Supervisor’s support in a Federal Disability Retirement application is important, and to what extent. The issue of whether the Agency can undermine or subvert the Federal Disability Retirement application, etc. — these can be mere distractions which, if allowed to expand in an exaggerated vacuum, can derail a Federal Disability Retirement application unnecessarily.

On the other hand, certain issues and obstacles can indeed be exaggerated, and still maintain a perspective of “reality” — such as the support and importance of one’s treating doctor.

It is important to make the conceptual distinction between the core essentials which make up a Federal Disability Retirement application, and those which are secondary, and further, those which are peripheral to the process.

The ultimate goal is to formulate an approach, prepare an effective presentation to the Office of Personnel Management, and not get distracted from the multiple obstacles and seeming-obstacles which can divert one’s attention, and maintain a reasoned perspective throughout.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Potential Drawback

One of the potential drawbacks in pursuing collateral employment issues concomitantly with a Federal Disability Retirement application is that, as such employment issues are active and clearly in the collective consciousness of the Agency, the Supervisor, and all involved, the issue itself often gets sneaked into a Federal Disability Retirement application under FERS or CSRS via the back door.  

This is not necessarily a negative thing, but can be a potential drawback if the Supervisor insists upon inserting the details of the collateral action in the Supervisor’s Statement.  Whether such insertion and accompaniment with a Federal Disability Retirement application is “proper” or not, is a separate matter.  From the perspective of the applicant who is awaiting a decision from the Office of Personnel Management, it matters not as to the proper actions of the Agency.  What such actions by the rogue supervisor does, is to deflect the focus away from the medical issue, and redirects the reviewing official/representative at OPM that the “reason” for one’s early retirement is not one based upon a medical issue, but rather, is because of stresses or other factors caused by a hostile work environment, harassment issues, etc.  This is normally a proposition which can be easily sidestepped, by arguing to OPM that whether or not such workplace issues have any basis or not, the treating doctor has nevertheless stated X, Y & Z.  However, it can still be problematic, and that is why collateral workplace issues should be avoided, if at all possible.

Sincerely, Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Those Workplace Issues

In preparing a Federal or Postal Disability Retirement application under FERS or CSRS, there are often multiple collateral issues which arise:  Harassment issues; Unequal Treatment; EEOC issues; Hostile Workplace issues; Discrimination issues; and multiple other issues which may or may not be viable complaints.  Such complaints have their proper place, in the proper forum, within the proper context.  As I have written multiple times previously on this issue — these employment issues should be avoided in the context of preparing for and filing a Federal Disability Retirement application.  

Many of these employment complaints may be viable ones to pursue; some may be pursued concurrently while seeking Federal Disability Retirement benefits under FERS or CSRS, and will not ultimately defeat or impact such an application (remember that in law, not only can an attorney speak out of three or four sides of his mouth; one is also allowed to make contradictory legal arguments at the same time).  

The point is that such collateral arguments and issues should not be a part of the application itself.  It may be fine to pursue such workplace issues in a separate and different forum — just not in the process of a Federal Disability Retirement application.  If the issue is brought up, the Office of Personnel Management may well use it against you, stating, “Your medical conditions seem to occur as a result of your allegation of the actions of your Supervisor. As such, you suffer merely from situational disability.”  Case denied.  

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: Influences

The fear that failure experienced in one path & process will impact and influence another process is one that is often of concern.

When a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS, there are often concurrent and parallel paths which are undertaken — whether it is concurrently filing for OWCP (Worker’s Comp) benefits; SSDI (which is a requirement under FERS, anyway); a third-party personal injury claim; application for unemployment benefits, etc.  And then, of course, there are EEOC Complaints which may be filed; collateral lawsuits, and other administrative and judicial processes which may be entered into in parallel fashion.

Do any of these other processes impact or influence a Federal Disability Retirement application under FERS or CSRS?

Fortunately, Agencies are like uncoordinated hands appended to multiple personnel with different brains and different neurological centers; rarely do they communicate with each other.

Even assuming, however, that some sort of communication does occur, because the applicable laws and criteria which govern each independent administrative process is different from each other, it is rare that a denial in one administrative process will adversely impact a Federal Disability Retirement application for a Federal or Postal employee under FERS or CSRS.  Imagine that — Federal agencies not coordinating with each other.

Sincerely,

Robert R. McGill, Esquire