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

 

OWCP Disability Retirement for Federal Government Employees? Beware the Lull of Complacency

Monotony is a state of being which we often criticize, yet unintentionally seek; for it is that hiatus of quietude which allows for thoughtful reflection, and recuperative islands of serenity, which serves to prevail upon an otherwise maniacal universe of a fast-paced technological world of smart phones, email, and the constant drone of machinery and demands of the modern decalogue.

But the problems inherent with the calm of normalcy is that it serves the unwanted plate of complacency; and it is precisely the latter which then results in procrastination, a sense that things can wait until tomorrow — until that tomorrow leaves us in the throes of yesterday.

And so it is with Federal and Postal employees who remain on OWCP/Department of Labor benefits, where the luxury of being paid 66 2/3 % if without dependents, and 75% with dependents, provides for that period of life when nothing moves and everything remains static, while one attempts to recuperate from an injury or occupational disease.  But as one remains in that island of calm, the world — and time — continues to march on (do the young of today fully understand the metaphor of time in this digital age where the rhythmic constancy of a ticking clock is no longer heard?).

The Federal or Postal employee might receive a notice of separation from Federal Service, but since the OWCP payments will continue, not think twice about such mundane consequences.  But Federal Disability Retirement benefits must be filed for within one (1) year of separation from Federal Service; and when the hiatus of OWCP benefits is suddenly terminated, the world of monotony may turn upside down into one of unintended turmoil, unless a “back-up” system of benefits was applied for.

Reflective moments are a positive thing; inaction for too long, however, often results in atrophy — a state of being which is never a positive one.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Moving beyond the Stagnant Waters of OWCP

“Is it possible…” is an impossible question to answer.  For, the conceptual distinction between that which is possible, as opposed to probable, is one which reveals the chasm between the world of fantasy and one of reality.  The world of the “possible” is unconstrained and unbounded; the world of probable occurrences may be fenced in by statistical constructs, actual circumstances, and real-world experiences.

While it is possible to stay on OWCP for a long duration, it is also probable that OWCP will cut off one’s benefits at some future, undetermined and unexpected time.  Thus, for the Federal or Postal employee who is on, has been on, or even is contemplating filing for, OWCP/FECA benefits because of a work-related injury, the benefit itself is attractive enough to remain on the rolls of OWCP until such time as (A) the Federal or Postal employee can return back to work, (B) the Federal or Postal Worker is deemed recovered, and the OWCP benefits are cut off, or (C) the Federal or Postal Worker decides to “move on” in life.

The first two choices are essentially out of the arena of “control” of the Federal or Postal employee, for one cannot determine or expedite the recovery period of a medical condition, and further, only the doctor (or its surrogate, the Office of Worker’s Compensation Programs) can determine whether or not the Federal or Postal work is now recovered.  As for the last choice, however, it is the Federal or Postal worker who can make the determination — especially if one has already gotten an approval from the U.S. Office of Personnel Management on one’s Federal Disability Retirement application.

OWCP is not a retirement system; one cannot work at another job while on OWCP; one must sit and do what the OWCP case worker tells you to do.  It is only with Federal Disability Retirement benefits, whether under FERS or CSRS, that one can actually engage in another, alternative vocation or career, and begin to move on in life, and become released from the stagnant waters of a constraining medical condition — or that of OWCP.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP Doctors, and Others, Etc.

Can a doctor with whom one has been treating, but one which was obtained through the Federal Employees’ Compensation Act, Department of Labor (FECA/DOL), Office of Workers’ Compensation Program (OWCP), be an effective advocate for one’s Disability Retirement application?  Of course.

Often, however, there is a complaint that the “OWCP doctor” is not very responsive to a Federal or Postal employee’s attempt to approach the question of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.  As FERS & CSRS Disability Retirement is based upon proving by a preponderance of the evidence one’s medical inability to perform one or more of the essential elements of one’s job, it is crucial that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits have a supportive doctor.

While the Merit Systems Protection Board’s expanding case-law holdings continue to reinforce the idea that the most effective advocate in a Federal Disability Retirement case is a “treating doctor”, as such, medical reports obtained through 2nd opinion or “referee” consultations, or via filing for Social Security Disability benefits, may have some limitations on their usage; nevertheless, the weapons of arguing that an “independent” source of medical review also found that one could not perform one or more of the essential elements of one’s job, can be an effective substantive argument.

As for the OWCP-treating doctor, sometimes those forms completed by such a doctor will be enough to meet the eligibility requirements for OPM Disability Retirement — but that is an individual assessment based upon the uniqueness of each case.

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

Federal Disability Retirement: OWCP Independence & Instersection

When Federal and Postal employees call to inquiry about Federal Disability Retirement issues from the Office of Personnel Management, the initial part of the conversation often involves separating the distinction and differences between OPM Disability Retirement and temporary total disability benefits obtained through the Office of Worker’s Compensation Programs, Department of Labor (OWCP/DOL).  

The two are distinct, independent, and do not intersect except when it comes to having both benefits approved — in which case the “intersection” between the two is comprised of choosing one benefit over the other, and allowing the other to remain in an inactive status.  The fact that each is separate, independent and non-intersecting (for the most part), however, does not mean that documentation from one entity cannot be used to prove or otherwise enhance the provability of the other (yes, the double-negative makes it more difficult to understand — but what it means is that you can use documentation from OWCP sources to help prove your OPM Disability Retirement).  

Thus, while there are two separate “language games” (to use a term coined by the 20th Century Philosopher, Ludwig Wittgenstein) involving usage of terms which are somewhat foreign to each other — such as “MMI”, “percentage disability ratings”, whether it is an “on-the-job” injury or not, etc., the fact that OWCP issues embrace a medical condition which impacts one’s ability or inability to perform one or more of the essential elements of one’s job, can certainly be a valuable tool in the arsenal of weapons to be used in proving a Federal Disability Retirement case.  On the other hand, discretion is a tactical tool which also needs to be applied…

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