Medical Retirement Benefits for US Government Employees: OWCP Disability

Periodically, a telephone call will begin with the statement that the Federal or Postal worker has been on “Disability” for the past _____ years.  The first question that must be asked is, “Are you speaking about OPM Disability Retirement?”  If the answer is one of confusion or lack of clarity, then a further query must be made, trying to establish whether or not the Federal or Postal worker is speaking about receiving payments from the Department of Labor, Office of Worker’s Compensation.

As it turns out, most people who refer to being on “Disability” often mean that they are receiving Worker’s Compensation.  Once this is established, then it becomes important to know whether or not the Federal or Postal Worker has been separated from Federal Service; and if so, when was he or she separated (because if it has been over 1 year, then it is too late to file for Federal Disability Retirement benefits from the Office of Personnel Management).  

Receiving “disability” is often confusing to the Federal or Postal employee.  A revealing fact is when the individual states that the “Agency put me on disability”.  This normally means that the person is on OWCP.  Or, if you are receiving 75% of one’s pay.  Remember that there is a distinction and a difference between OWCP and OPM Disability Retirement.  The former pays well, but may not last forever.  Indeed, if the latter is not applied for within the time-frame allowed, you will be barred from ever applying for it.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Each Step is a New Review

There are only one of several ways in which a Federal disability retirement application under FERS or CSRS can be lost: Either a Judge at the Federal Circuit Court of Appeals renders a final opinion denying a Federal or Postal Employee his or her disability retirement, or the Federal or Postal employee simply gives up.  As to the former:  Even then, if the Federal or Postal employee has not been separated from service for more than one (1) year, he or she may file a new application for disability retirement. 

Thus, we are left with the latter:  a disability retirement applicant simply gives up.  By “giving up” is meant:  the next step is not taken; the time-frame within which to file a Request for Reconsideration or an appeal is allowed to “lapse”; or, if an appeal is taken, it is done with resignation and surrender.  Nothing good can come out of such an approach.  Each step of the process in a Federal disability retirement case must be attacked aggressively.  Each step must be looked at as a potential place for a new review. Think about it in reverse:  If you don’t take the next step, then nothing good will certainly happen, so what is there to lose?  Indeed, there are times when a client hires me to file a Request for Reconsideration or an appeal to the Merit Systems Protection Board, and the mere filing of my appearance into the case persuades and convinces the OPM representative to reverse course and grant the disability retirement application.  The point of making such a statement is not to “brag”, but to make the larger point:  good things can happen only if you affirmatively act.  Otherwise, you are left with what King Lear said to his daughter Cordelia, that “nothing can come from nothing”. 

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Discretion in a Response

When a Federal Disability Retirement applicant under FERS or CSRS receives an unfavorable response from the Office of Personnel Management (translated:  an initial Denial), you have the right (which must be asserted in order to move forward in the future, i.e., to the MSPB and beyond) to file a Request for Reconsideration.  If you receive a second denial, then the only response required (and which should and must be asserted) is an appeal to the Merit Systems Protection Board.  A response to the initial denial, however, should include a reply to the (often) detailed “discussion” section of the denial letter. 

Normally, when I file a response (in addition to obtaining additional medical documentation from the doctors, and any other substantiating documentation which may be relevant), I normally write up a 5 – 7 page responsive legal memorandum rebutting the denial letter.  Now, this is where “discretion” is necessary.  Upon an initial reading of a denial letter, one’s first response is normally not that which one should act upon, because it is often a reaction of, “What???”   Discretion is a virtue to follow; there must be a proper balance between responding to every single criticism from OPM (not a good idea), to ignoring everything in the denial letter (also not a good idea), to choosing two or three of the more substantive issues brought up and addressing those issues.  How to address them, with what tone, what manner & style, etc., is what an attorney is for.

Sincerely,

Robert R. McGill, Esquire