Medical Retirement for Federal Workers: VA Disability Issues

Many Veterans find themselves pursuing a career in the Federal work force, including the U.S. Postal Service (although, technically, the U.S. Postal Service is a quasi-Federal agency, but still part of the FERS & CSRS retirement systems, and as such, all Postal Workers are eligible for Federal Disability Retirement benefits under FERS or CSRS).

Such a career path often results in a medical condition which, while originating in the military or while serving in the military, becomes progressively deteriorating while working for the Federal government or the U.S. Postal Service.

Often, such a scenario comprises a dual, or parallel occurrence, in that the Veteran’s medical conditions continue to worsen, and in its progressively worsening state, the Veteran is able to apply for a VA Disability rate increase while, concurrently, the impact upon the Veteran’s ability to continue to perform all of the essential elements of his or her job with the Federal Agency or Postal Service continues to grow.

The parallel events, at some point on a graph, begin to curve inversely, and intersect where (A) the VA disability rating, both in numerical increase and in a factual, debilitating medical reality, deteriorates to a point where (B) the Federal or Postal employee is no longer able to perform the essential elements of one’s job.

At that point of intersection, or sometime prior to the clash of the inverse curve, it may be time for the Veteran to consider preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS.  In such a fact-scenario, the medical evidence from the VA side of things can be used for purposes of evidentiary proof in filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Quantification v. Symptom Delineation

Different systems and processes require different standards of proof, criteria, and elements of qualifying evidence in order to be eligible and entitled.  Applying for, and getting approved, a Federal Disability Retirement application under either FERS or CSRS, requires that certain legal criteria be met. 

Quantification of a medical condition, although sometimes helpful in further expanding a descriptive narrative of a specific medical condition, is normally rather irrelevant in a Federal Disability Retirement case.  By “quantification” is meant the assigning of a number — of rating a person’s specific medical condition or relative to the “whole body”. 

Thus, in OWCP and VA Claims, there will often be a number assigned — 10% for X medical condition; a “combined” rating of 80%, etc.  One would expect that a high quantification of a medical condition would translate into a more serious appraisal of that medical condition, but various factors need to be considered when attempting to utilize such numbers in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  Thus, for instance, a 10% rating upon a person’s foot may seem relatively insignificant when applied to a sedentary job, but for a person who must be on his or her feet all day, with requirements of constant standing, walking, etc., it becomes not only “significant”, but potentially a singularly viable basis for filing a Federal Disability Retirement application under FERS or CSRS. 

One must be careful in playing the “numbers game” in formulating, preparing and filing a Federal Disability Retirement application under FERS or CSRS.  Numbers never tell the full story, but they can be used to help describe and delineate the necessary requirements to be approved for a Federal Disability Retirement application by the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Numbers

Numbers, statistics and percentages rarely tell a complete story, especially in relation to a person’s medical condition.  In Federal Disability Retirement applications under FERS or CSRS, numbers must be utilized carefully and, more importantly, effectively.  Moreover, numbers can be used to diminish or otherwise minimize the seriousness of a medical condition.

For example, if the loss of a forefinger of a right-hand dominant individual would constitute a 5% disability of the “whole person”, does that tell the full story of the impact of such a medical condition upon one’s ability to perform a job which requires daily manual dexterity & use of the right hand?  Or if the loss of vision in one eye were deemed to be a 10% disability, how would one quantify such a medical condition for a computer graphics engineer?

Scheduled awards for Worker’s Comp requires such quantification; and the Veterans Administration ascribes service-connected disability ratings, but unless one descriptively defines the relevance of such numbers to the impact upon one’s ability/inability to perform the essential elements of one’s job, such numbers lose their importance and relevance.

In filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to recognize that the language used, and not the numbers ascribed, determines the relevance and ultimate success.  Numbers must be descriptively quantified; numbers in and of themselves never tell a story, except perhaps to the mathematician, which the workers at the Office of Personnel Management are not.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: Tools to Use

I am often asked, when filing for Federal Disability Retirement benefits under FERS or CSRS, Will you use … ?  From the range of tools of evidence to use — including VA disability ratings, to OWCP “CA” forms, MMI ratings, Veterans Administration records, Second opinion doctor’s report, referee opinion report, letters from the Agency indicating unavailability of work; letters from the agency indicating the extent and limitation of willingness to provide for an “accommodation” (whether legally sufficient to rise to the level of meeting the definition of what it means to be an “accommodation” under the law), and multiple other tools — all of it is a matter of legal discretion.  

The general rule that I utilize is that, If it is helpful to my client’s case to prove to the Office of Personnel Management that my client’s Federal Disability Retirement application under FERS or CSRS will be enhanced and aided by the material, then I will use it.  The discretionary issue which the attorney representing an applicant for Federal Disability Retirement benefits is essentially to “match” the document or piece of evidence with the particular issues which must be proven, and that is a matter of carefully reviewing each piece of evidence in compiling a compendium of evidence which makes up the “whole”.  It takes time, patience, and sufficient legal knowledge to understand which issues are important in proving a Federal Disability Retirement case under FERS or CSRS to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The Percentage Language Game

To the question:  “What medical disabilities do you have,” is often the response in terms of a percentage language game:  “The VA has given me a ____”; “My doctor rated me at____”.  In the proper context, in the relevant process, such percentage ascription reflecting a numerical value may be workable, as well as persuasive.  But in a Federal Disability Retirement application, where the persuasive essence of a well-formulated Federal Disability Retirement application under FERS or CSRS is constituted by a discussion of the delineation of symptoms as opposed to numbers; physical and cognitive impact as opposed to quantitative value; such language is meaningless unless it is interpreted and translated in terms of the human impact upon one’s job functions.  

That is not to say that the numerical value cannot be used; rather, it must be used with caution, and in a way that shows that, beyond the numbers, there is an essential impact in terms of one’s inability to perform one or more of the essential elements of one’s job.  Thus, the “language game” of numerical values, while important in other filings and proceedings, may be of less significance in the formulation of a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Using the Legal Tool

A word of wisdom:  generally, it is not a wise endeavor for applicants who are not lawyers, who file for Federal Disability Retirement benefits under FERS or CSRS, to make legal arguments.  I have seen the end-product of such results, and have concluded that they are more-often-than-not, harmful to the case.  Most legal arguments are formulated through years of discretionary application based upon extensive research and experience in a given area of law; and the discretion that must be used is not always intuitively obvious.

As an example, there are cases where it is entirely appropriate to submit the VA disability rating as part of the Federal Disability Retirement application, as supplemental documentation in support thereof.  However, determination concerning the importance, impact and significance of relying upon such information must be discreetly assessed.

Yes, there is “case-law” concerning the persuasive authority of VA Disability ratings.  However, the practical legal aspect of utilizing such ratings must be carefully considered, based upon numerous factors:  while the combined rating may be higher, what are the individual percentages?  Are each high enough to warrant persuasive argumentation?  Could closer scrutiny of the individually ascribed ratings be more harmful to one’s case?  Is the rating (and each individualized break-down) discussed in medical terms in the VA records?

Ultimately, the individual who files for Federal Disability Retirement benefits without an attorney must rely upon himself or herself, and the wisdom of one’s own counsel.  Whether that is wise or not, I leave to each individual.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Appropriate Language Game

In filing an application for OPM Disability Retirement benefits under FERS or CSRS, there are many questions that are posed for the person who is just being introduced to the concept of potentially filing for Federal Disability Retirement benefits under FERS or CSRS, and many of the sub-topical concepts are often “counter-intuitive”.  This is because most people — including doctors and practicing lawyers — are unfamiliar with the laws, processes, procedures and regulations surrounding and governing Federal Disability Retirement laws under FERS and CSRS, but are instead familiar with the legal arenas of Social Security Disability, Veteran’s Administration disability benefits or Department of Labor, Office of Worker’s Compensation issues. 

In those “other” areas of legal specialties, there are doctors who simply specialize in making disability determinations — of evaluating a “patient”, determining the extent of the disability, having the Federal or Postal employee undergo a “Functional Capacity Evaluation“, and ascribing a “disability rating” and determining when, or if, the person has reached “Maximum Medical Improvement“.  Each arena of law has what Wittgenstein once coined as a “language game” — a specific set of language usage which applies only within a certain context, and those “other areas” of law are often inconsistent and foreign to the arena of Federal Disability Retirement issues under FERS or CSRS.  Often, when people call me, one of the first things I do is to set about “teaching” the caller the differences, distinctions, and inapplicability of one set of language games upon another set of language games, as well as how the two (or three) relate to each other.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Differing Legal Criteria

Similar benefits, at the State, Local, Private levels, and at the Federal level, each contain differing legal criteria for eligibility. Thus, for instance, Social Security Disability benefits require one set of standards of eligibility; private disability insurance policies require a different set of standards; and state disability benefits often differ from state to state.  This is of course true of Federal Disability Retirement benefits under FERS and CSRS — where the legal standard of eligibility is different from Social Security, Worker’s Comp, and State or private disability criteria.

Often, a question is asked whether a medical narrative report which is prepared for submission to the Office of Personnel Management can be used for submission for other “similar” benefits.  The short answer is, “It all depends”, but the long answer is that, in most cases, one must be very cautious.  When I represent a Federal or Postal employee under FERS or CSRS, one of the first steps in preparing a viable case is to request of the treating doctors a detailed medical narrative report.  One must understand that the treating doctor has, generally speaking, next to no idea as to the legal criteria that must be met under FERS or CSRS.  Furthermore, the treating doctor has no legal knowledge as to the differences between private disability insurance policies, State, Social Security, OWCP or FERS & CSRS.  It is the job of the Attorney to make sure and guide the treating doctors as to the criteria which must be met as to the particular and specialized field for which the medical narrative is being prepared.  This must be done with care, and with detailed guidance.

Sincerely,

Robert R. McGill, Esquire