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

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

Federal and Postal Disability Retirement: OWCP Intersections

To the question relevant to filing for Federal Disability Retirement benefits under FERS or CSRS, as in, “What are your medical conditions?”  — the potential applicant will often state the following:  “Well, it is an OWCP-accepted case…”  Such an answer may or may not be relevant.

OWCP under FECA (“Worker’s Comp”) is on a different benefit track from Federal Disability Retirement benefits under FERS or CSRS, as approved or denied by the Office of Personnel Management.  In many ways, the different processes are completely separate and apart.  One cannot receive both benefits concurrently. One must choose between one or the other.  Theoretically, one can switch from one to the other, then back again, but in practical terms, it is difficult because of the headaches involved in stopping one and starting the other.  One can, however, pursue both tracks of benefits concurrently; it is just that one must choose between the two if both are accepted.  

Now, this doesn’t mean, however, that one cannot “use” certain medical documentation to the advantage of the other process.  Thus, for instance, I have often used OWCP “Second Opinion” or “Independent Medical Examination” reports in helping to obtain Federal Disability Retirement benefits under FERS or CSRS.  What an irony — because we all know how “independent” second-opinion doctors are; yet, when such an “independent” doctor provides an opinion in the client’s favor, there is nothing wrong with using it to the client’s advantage when filing for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire