Federal and Postal Disability Retirement: Targeted Use of Collateral Evidence

Case-law from the U.S. Merit Systems Protection Board, as well as judicial opinions rendered by the U.S. Court of Appeals for the Federal Circuit, maintain the standard of acceptable proof for a Federal Disability Retirement case submitted to the U.S. Office of Personnel Management, for Federal and Postal employees under either FERS or CSRS.

The primary basis for a Federal Disability Retirement application is clear:  A medical condition which exists, which prevents the Federal or Postal employee from performing at least one, if not more, of the essential elements of one’s job; that a legally viable accommodation is not possible; that reassignment to another position at the same pay or grade is not reasonably feasible; that the medical condition will last a minimum of 12 months; and that the Federal or Postal employee must file for such benefits during the tenure of one’s employment as a Federal or Postal Employee, or within 1 year of being separated from Federal employment.

The core of one’s proof is generally based upon the treatment and opinion of one’s treating doctor.

Every now and again, however, there are “collateral” sources of proof which should be considered, and for various reasons, which must be relied upon for establishment of one’s eligibility for Federal Disability Retirement benefits.  Such proof may include: opinions rendered by Second-opinion or “referee” doctors in an OWCP case; percentage ratings provided by the Department of Veterans Affairs; SSDI approval determinations; separation from the Agency based upon one’s medical inability to perform the essential elements of one’s job; medical notes for FMLA; and even (sometimes, but rarely) a decision granting disability benefits by a private insurer; and other such collateral sources of proof.

Such proof, of course, should never replace the centrality of one’s own treating doctor, and further, should always be targeted and submitted with discretionary judgment.  Sometimes, it can be the “other evidence” which makes the difference in a case; other times, if used indiscriminately, can be an indicator of the weakness of one’s case.

Be careful; be targeted; use discretion.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Persuading with Persuasive Arguments

The question is often asked concerning whether or not and to what extent other collateral agency decisions can impact a Federal Disability Retirement application filed with the U.S. Office of Personnel Management (OPM), whether under FERS or CSRS.

The only answer which can be provided is the standard, “It depends…”  The reason why “it depends” is precisely because utilization of any persuasive information or evidence is primarily dependent upon the persuasive efficacy of the evidence itself.

There is certainly legal case-law support for collateral evidentiary submissions, including SSDI, Department of Veterans Affairs ratings, Military Board findings, and DOL/OWCP second opinion and “referee” findings, etc.  Thus, the issue is not whether or not there is a basis for using such third-hand sources to support the primary evidentiary foundation of a Federal Disability Retirement application; rather, the issue becomes one of how effectively should one use such evidence.  Such a question, of course, can only depend upon the particular and unique circumstances of each case, by analyzing and reviewing the strength, applicability, and relevance of the documented information.

Sometimes, use of such collateral evidence can somewhat backfire, in that OPM will actually point to such evidence and discuss it in a way which supports a denial.  Care and discretion must always be taken in using collateral information; it is always the primacy of the primary information which must be used, and used effectively.

Sincerely,

Robert R. McGill, Esquire

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

Postal and Federal Disability Retirement: Collateral Source Impact

The persuasive impact from collateral sources can take one of two primary forms:  legal or medical.  In fighting for one’s Federal Disability Retirement benefits under FERS or CSRS, it is becoming more and more apparent that the Office of Personnel Management is taking a very aggressive approach at evaluating each Federal Disability Retirement application.  

Whether this is a change in administrative policy — and no one knows or can find out, because only OPM possesses internal statistical findings of how many approvals versus rejections they have issued, year by year, over the past decade, and whether there is a significant change — or merely a “sense” by the undersigned writer; or, just as probable, there is a growing carelessness and lack of proper scrutiny because of a rush to catch up, resulting from the growing backlog of cases; whatever the multitude of reasons, it is important to utilize every tool available to the Federal or Postal worker in an effort to win one’s Federal Disability Retirement benefits under FERS or CSRS.  

Collateral sources of administrative determinations and medical conclusions, whether they originate from OWCP/DOL Second Opinion reports; SSDI determinations and the medical records and reports upon which they are based; VA rating increases, as well as findings from the VA disability determinations; military board findings; Agency determinations, including results from “Fitness for Duty” examinations; other “Independent Medical Examinations” — all constitute collateral sources of evidentiary relevance, depending upon a careful scrutiny of each piece of such evidence.  

It is unwise to include everything; everything must be reviewed prior to submission; collateral legal determinations should be justified with legal arguments and precedents; medical determinations should be carefully noted as part of the Federal Disability Retirement packet.  Federal and Postal workers who are filing for Federal Disability Retirement benefits under FERS or CSRS should use every means available, including collateral sources, both for legal as well as medical evidence, in the quest to win an approval from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Issue of Discretion

A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.  

In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc.  The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.  

A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue?  As with all such hypotheticals, the answer to all of the above is:  It all depends…  

Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach.  Sometimes, making a passing reference to the collateral issue may be appropriate.  In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone.  In any case, such discretionary decisions should be made with the advice of an attorney.

Sincerely,

Robert R. McGill, Esquire