Medical Retirement Benefits for US Government Employees: Interactions

Preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, is a necessary step for a Federal or Postal employee who finds that he or she can no longer perform one or more of the essential elements of one’s Federal or Postal job because of a medical condition.  

In doing so, there are obviously potential interactive processes which one must consider.  If the Federal or Postal employee is under FERS, then you must file for SSDI (Social Security Disability benefits), because that is what the law requires.  

Further, one must determine how aggressively, to what extent, and to what end and purpose one needs to file in pursuing SSDI concurrently — for, if one is planning on working at another, separate job while receiving a Federal Disability Retirement annuity, then the cap imposed by SSDI as opposed to the 80% allowance for FERS Disability Retirement without SSDI, needs to be taken into consideration.  Such future planning will then determine the course of one’s actions, as to how hard one will try and obtain SSDI benefits.  

Additionally, if the medical condition arose from a work-related injury, then obviously filing a claim concurrently with the Department of Labor, Office of Workers Compensation under FECA should be contemplated.  

Then, there are those who, whether by accident or wisdom and foresight, obtained and paid for throughout the intervening years, a private disability insurance policy.  Such private disability insurance policies are essentially contracts — and whether there is an offset with Federal Disability Retirement benefits, Social Security, or OWCP depends upon the “fine print” of the contract.  

One minor note as to private disability policies:  The time to read the fine print is when the insurance agent is trying to sell you a policy — not when you need to apply for the benefits.  Private policies can be negotiated, and the terms can be amended.  

Finding a negative consequence after the fact is a costly error in judgment which can easily be mitigated by spending a few moments at the outset.

Sincerely,

Robert R. McGill, Esquire

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

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

Early Retirement for Disabled Federal Workers: Collateral Disability Determinations

The key to effectively using collateral sources of disability determinations in a Federal Disability Retirement application under FERS or CSRS is to tailor its relevance in each individual circumstance.  Thus, for example, because the focus upon percentages of disability, or the issue of causal connection to the workplace, is a focal point of importance in an OWCP/Department of Labor case, but not in cases of Federal Disability Retirement under FERS or CSRS, such issues should be left alone.  However, the fact that there may be an “independent medical examination” by a Second-Opinion doctor, or a referee doctor in a Worker’s Comp case, can be used to one’s advantage.  

Often, a person who has been under the agonizing scrutiny and torture of the Worker’s Comp process will miss the point, and complain that the OWCP-appointed doctor “didn’t even exam me for 2 minutes”, or “didn’t listen to a thing I said,” but all the while missing the key ingredients in the doctor’s report:  (1) that the doctor can be effectively characterized as “independent” — not from an OWCP standpoint, but certainly from a FERS or CSRS Disability Retirement standpoint, because that particular doctor has no self-interest from OPM’s viewpoint, and (2) if the doctor’s opinion is that, while the causal connection (for example) may not have been established, does he nevertheless express an opinion that the Federal or Postal employee is unable to return to perform the essential functions of his or her job?  Often, the emotional uproar in an OWCP case, or in other similar cases (SSDI & Veteran’s Department disability determinations) causes the Federal or Postal employee to miss the primary point of the process:  to use the tools effectively in getting a Federal Disability Retirement application under FERS or CSRS approved.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: OWCP & OPM Disability Retirement

Many calls come in where individuals have been on OWCP benefits for some time; it is, as I often explain, a difficult road to take, let alone stay on.  The compensation is certainly better, and in comparison to what Federal Disability Retirement benefits pay under FERS or CSRS, it can mean the difference between relative financial comfort and hardships.  But the difficulties which people — almost without exception — encounter with OWCP — from the constant harassment, to the threat of cutting off benefits, to repetitive examinations before Second Opinion and referee doctors, etc., makes for intolerable conditions.  Further, OWCP is not a retirement system, as I incessantly and redundantly state; it is a mechanism in which to allow for temporary compensation to be received while a Federal or Postal worker is recuperating from an on-the-job injury.  And that is the key concept — the Federal or Postal worker is expected, in the end, to recuperate and go back to work.  OPM Disability Retirement, on the other hand, is just that — a retirement from the Federal Service, for a medical condition which is expected to last for a minimum of 12 months, but as in most cases, as a permanent condition of the Federal or Postal employee.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Interaction with OWCP/DOL

I receive calls periodically as to whether it is of greater advantage to remain on Worker’s Comp (Department of Labor, Office of Workers Compensation Program — “OWCP”) as opposed to going out on OPM Disability Retirement.  My answer remains the same:  OWCP is not a retirement system; OPM disability retirement is indeed that — it is a retirement, where one is separated from Federal Service, and you go out and do what you want to with your life.  Every decision has consequences; every act which we engage in has inherent residual effects, and we have to balance such effects and consequences.  Thus, while OWCP benefits pay a higher rate (75% tax free with a dependent; 66 2/3% tax free without a dependent), there are restrictions:  You must comply with any and all requests (or demands) of the Department of Labor; you cannot go out and get another job, or start another career — because you are deemed “disabled” and are being paid for it.  On the other hand, OPM disability retirement pays less (for FERS, 60% the first year, 40% every year thereafter), but you have the freedom of retirement — you may go out and start another career, and make up to 80% of what your former position currently pays, without losing your disability annuity.  These — and many other factors — are some things to consider when weighing the differences between OPM disability retirement, and receiving OWCP/DOL benefits.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Initial Federal or USPS Disability Process

Many people get confused when they first consult with an attorney about USPS or Federal Disability Retirement benefits.  Indeed, before consulting with an attorney, an individual who is faced with a medical condition which (1) is beginning to impact one’s ability to perform one or more of the essential elements of one’s position and (2) will likely last at least a year — such an individual should first take the time to research various websites to “get the facts” about Federal Disability Retirement. 

I have had many individuals tell me that they didn’t even know that such a benefit existed; that when they were separated from their U.S. Government gency, the Postal worker or Federal employee was never informed that he or she could file for Federal Disability Retirement.  Unfortunately, ignorance of the law is not a valid excuse; if you don’t file for disability retirement benefits under FERS or CSRS with the Office of Personnel Management within one (1) year of being separated from service with the Federal Government, you will have lost your right to file — forever. 

Furthermore, it is dangerous to “take comfort” in the fact that the Department of Labor/The Office of Worker’s Compensation Programs deemed you to be 100% disabled.  That “100%” disabled status may last a lifetime, or it may last only so long as your particular OWCP caseworker is working on your case.  The next caseworker may take it upon him or herself and decide that, Well, no, perhaps you are not 100% disabled, and perhaps sending you to a “Second Opinion” doctor (who, it just so happens, is receiving about 95% of his or her income expounding such “second opinions”) will result in a medical finding that you miraculously “recovered” and are able to go back to work.  Benefits cut off.  You waited a year or more after being separated from Federal Service to find this out, without having filed for Federal Disability Retirement benefits.  You are then, unfortunately, “out of luck”.  Make sure that you file in a timely manner; make sure that you do not take comfort in being on OWCP rolls.  Don’t forget —  Postal or Federal Disability Retirement is an annuity that you can rely upon as a “base income” for your financial security.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The OWCP Danger of Complacency

I have had far too many calls by individuals who were complacent with being on OWCP/DOL temporary total disability compensation. The old adage, “Ignorance of the law is not an excuse”, is still generally true. It is the responsibility of the Federal or Postal employee to file for Federal Disability retirement benefits under FERS or CSRS in a timely fashion — within one (1) year of being separated from Federal Service.  The fact that an individual is on the rolls of Worker’s Comp, receiving Worker’s Comp, receiving a scheduled award, going through rehabilitation or job retraining does not protect or extend the Statute of Limitations of 1 year.  Many people, especially Postal Workers, become separated from service without being properly notified.  A hint:  If you all of a sudden stop receiving those “Zero-balance” pay checks, chances are, you have been terminated & separated from service.  The burden is on the Federal employee to keep on top of things:  ask for your PS Form 50, or SF-50, whichever the case may be; call your agency on a regular basis to make sure that you are still on the rolls of the Agency.  If you have been separated from service, a personnel action should have been initiated.  From that moment — when you have been separated from Federal Service — you have one — I emphasize and reiterate — ONE YEAR from the date of separation from Federal Service to file for disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OWCP, Light Duty & Federal Disability Retirement

As I stated in my previous blog, OWCP is not a retirement system. Instead, it is meant to return an injured worker back to productivity with his or her agency. This is done through means of providing for medical treatments; paying the Federal employee temporary total disability benefits during the time of treatment and recuperation; then, if the Federal or Postal employee is unable to return to the former position in full capacity, to offer a “modified position” to the employee.  At each step in the process of OWCP/DOL, the onerous and burdensome hand of the process becomes clear — for, if at any time, the employee refuses to follow the mandates given by OWCP, the real threat of having one’s temporary compensation suddenly terminated is always a possibility. 

Thus, in accepting OWCP benefits, there is a clear trade-off:  tax free compensation for the price of being completely governed by OWCP.  Then, when the modified job offer is given, you have no choice but to accept it, in whatever form, and must be accepted “as is” — otherwise, your temporary total disability payments will be terminated.  Remember, however, that accepting such a position does NOT preclude you from filing for disability retirement benefits, because the case-law governing Federal Disability Retirement has a “safety” feature:  in order to be considered a legally viable “accommodation” under the law, the modified job that is offered and accepted must have been one which was previously in existence, and vacant.  It cannot be your old job slot, modified by a piece of paper prepared by your agency and the Department of Labor.  It must be a true job.

Sincerely,

Robert R. McGill, Esquire