Disability Retirement for Federal Government Employees: Use of Collateral Sources

Context is important.  Identifying the relevance of importance, however, is discretionary, and requires some insight into the impact which a differentiated distinction might require.

Allow for some expansive explanation:  In attempting to obtain OWCP/DOL benefits, one may want to argue against the validity of a medical evaluation — i.e., by attacking the claimed “independence” of the medical evaluation (argument:  the doctor is being compensated by the Department of Labor; 25% of his practice is devoted to such evaluations, and out of that, 95% of his evaluations are found to be in favor of the Department of Labor, etc.).  But the fact that one may want to attack the relevance and validity of an  independent medical examination within the context of the Office of Worker’s Compensation, does not mean that when one files for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, that one should necessarily and unequivocally discard the received report from OWCP.

There may well be statements contained in such a report which may be useful in arguing to OPM that one’s Federal Disability Retirement application should be approved.  Can one argue positively that it is an “independent” medical examination?  Absolutely.  In fact, the contrary argument should be made:  that because the doctor was selected by another government agency (Department of Labor), it is all the more so that the medical opinions of the particular doctor are relevant and of significant impact.  One must be careful, of course, in using such collateral sources for support of one’s Federal Disability Retirement application, but so long as the proper context is identified and understood, one should always consider the use of such “other” sources of support — but never to replace the primary importance of one’s treating doctor.  Context, properly understood, can result in substantive argumentation of relevant and significant import.

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