Postal and Federal Disability Retirement: Details

Ultimately, it is not the “devil” which is in the details; rather, the details of a Federal Disability Retirement application often determine the success or failure of a case.

Attention to the details — of coordinating the Applicant’s Statement of Disability with the submitted medical reports and the legal/analytical arguments to be made; of distinguishing between “facts” and “arguments”; of anticipating any issues which an Agency might bring up; of making the determination as to which anticipated issues should be focused upon and preempted (if at all); of whether to utilize collateral sources of documentation, whether they be statements from a denied SSDI application or the ascription and allocation of a Veterans Administration disability rating; whether, if a concurrent OWCP case has generated a Second Opinion or Referee Medical Report; which medical reports to request and submit; which legal and analytical arguments to engage in at the outset; whether or not additional, non-medical but (potentially) supportive documentation should be attached — these are the details which make up for a devilish time.

In preparing, formulating, and filing a Federal Disability Retirement application under FERS or CSRS, it is not a question of whether the details make any difference; for the most part, they constitute all the difference.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: VA Benefits

As each collateral source of disability benefits must be carefully assessed before utilizing it as a tool in filing for Federal Disability Retirement benefits under FERS & CSRS, so it is with those benefits which rely primarily upon percentage ratings. First, one should note that, if a Federal Disability Retirement application is approved under FERS or CSRS, that there is no offsetting of benefits between Federal Disability Retirement and Veterans benefits.  The two are treated as independent of one another.  

At the same time, however, that does not mean that you cannot utilize a VA disability rating decision in pursuance of an approval from the Office of Personnel Management, when filing for Federal Disability Retirement benefits under FERS & CSRS.  Indeed, there is case-law which states that the Office of Personnel Management, or the Merit Systems Protection Board (if it has been previously denied twice and is appealed to the MSPB) must consider such evidence in the totality of all of the evidence, in making a determination on the approval or disapproval/denial of a FERS or CSRS Disability Retirement application.  

If a VA Rating decision is used, however, in such an application, it must be done with some thought and care.  How to go about using it; what to use; whether to use; those are all discretionary questions which must be carefully considered.  In such cases, it is prudent to seek the advice and counsel of an attorney who specializes in Federal Disability Retirement law.

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

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

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