Federal Disability Retirement: Dependent Contextual Information

The historical context of one’s medical condition is an issue which is mostly irrelevant for the First and Second Stages of a Federal Disability Retirement application, submitted to the U.S. Office of Personnel Management, whether under FERS or CSRS. This is because OPM is not interested — or, more accurately, the law does not recognize as relevant in analyzing the eligibility criteria applied in a Federal Disability Retirement application — of “how” or “why”.

While such contextual information may be relevant for OWCP/FECA cases because of the issue of causality and its importance in such cases, the overriding and determining factor in a Federal Disability Retirement application is whether a Federal or Postal employee has a medical condition; how that medical condition prevents one from performing one or more of the essential elements of one’s job; and whether the medical condition will last a minimum of 12 months.

Outside of that contextual information (actually, such information is more accurately identified as content-information), OPM in pragmatic terms has no patience for the historical background of such information.  Obviously, however, some contextual narrative should be included in any Applicant’s Statement of Disability, in order to make the statement meaningful.

One last point:  While historical context may not be relevant for the Initial Stage and the Reconsideration Stage, it may be very important if one finds oneself before an Administrative Judge at the U.S. Merit Systems Protection Board.

Sincerely,

Robert R. McGill, Esquire

OPM Federal Disability Retirement: Be Smart

Disability retirement under the Office of Personnel Management, and Worker’s Comp benefits from the Department of Labor, OWCP — normally, I explain that the two have nothing to do with each other, and “never the twain shall meet” (except, of course, insofar as one must choose one or the other; that causality or “on the job” issues are not relevant for OPM disability retirement; or that OWCP pays more but is not a retirement system, etc. — thus, all of those distinctions and differences which only serve to emphasize the separation between the two benefits).  However, there are instances when the applicant filing for OPM disability retirement benefits, and who (at the same time, coincidentally) has been under the thumb of OWCP, should “cross over” between the two — especially when he or she has received a favorable Second Opinion stating that the (so-called) Independent Medical Examination shows that the OWCP beneficiary is unable to return to the job.  In that instance, such a medical opinion can and should be used for OPM disability retirement purposes.  In fact, such a medical opinion is often viewed by OPM as “independent” and “unbiased”.  To a great extent, this is somewhat of an irony, because from the employee’s viewpoint, the Second Opinion Doctor is anything but an “unbiased” doctor (in most instances), inasmuch as OWCP/DOL is paying for his or her services.  But when that “unbiased” doctor gives a favorable opinion, then it can work to your advantage when filing for disability retirement benefits from the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esqire

Postal and Federal Disability Retirement: The Initial Federal or USPS Disability Process

Many people get confused when they first consult with an attorney about USPS or Federal Disability Retirement benefits.  Indeed, before consulting with an attorney, an individual who is faced with a medical condition which (1) is beginning to impact one’s ability to perform one or more of the essential elements of one’s position and (2) will likely last at least a year — such an individual should first take the time to research various websites to “get the facts” about Federal Disability Retirement. 

I have had many individuals tell me that they didn’t even know that such a benefit existed; that when they were separated from their U.S. Government gency, the Postal worker or Federal employee was never informed that he or she could file for Federal Disability Retirement.  Unfortunately, ignorance of the law is not a valid excuse; if you don’t file for disability retirement benefits under FERS or CSRS with the Office of Personnel Management within one (1) year of being separated from service with the Federal Government, you will have lost your right to file — forever. 

Furthermore, it is dangerous to “take comfort” in the fact that the Department of Labor/The Office of Worker’s Compensation Programs deemed you to be 100% disabled.  That “100%” disabled status may last a lifetime, or it may last only so long as your particular OWCP caseworker is working on your case.  The next caseworker may take it upon him or herself and decide that, Well, no, perhaps you are not 100% disabled, and perhaps sending you to a “Second Opinion” doctor (who, it just so happens, is receiving about 95% of his or her income expounding such “second opinions”) will result in a medical finding that you miraculously “recovered” and are able to go back to work.  Benefits cut off.  You waited a year or more after being separated from Federal Service to find this out, without having filed for Federal Disability Retirement benefits.  You are then, unfortunately, “out of luck”.  Make sure that you file in a timely manner; make sure that you do not take comfort in being on OWCP rolls.  Don’t forget —  Postal or Federal Disability Retirement is an annuity that you can rely upon as a “base income” for your financial security.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OWCP, Light Duty & Federal Disability Retirement

As I stated in my previous blog, OWCP is not a retirement system. Instead, it is meant to return an injured worker back to productivity with his or her agency. This is done through means of providing for medical treatments; paying the Federal employee temporary total disability benefits during the time of treatment and recuperation; then, if the Federal or Postal employee is unable to return to the former position in full capacity, to offer a “modified position” to the employee.  At each step in the process of OWCP/DOL, the onerous and burdensome hand of the process becomes clear — for, if at any time, the employee refuses to follow the mandates given by OWCP, the real threat of having one’s temporary compensation suddenly terminated is always a possibility. 

Thus, in accepting OWCP benefits, there is a clear trade-off:  tax free compensation for the price of being completely governed by OWCP.  Then, when the modified job offer is given, you have no choice but to accept it, in whatever form, and must be accepted “as is” — otherwise, your temporary total disability payments will be terminated.  Remember, however, that accepting such a position does NOT preclude you from filing for disability retirement benefits, because the case-law governing Federal Disability Retirement has a “safety” feature:  in order to be considered a legally viable “accommodation” under the law, the modified job that is offered and accepted must have been one which was previously in existence, and vacant.  It cannot be your old job slot, modified by a piece of paper prepared by your agency and the Department of Labor.  It must be a true job.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OWCP & Federal Disability Retirement

I often tell my clients that OWCP/DOL is not a retirement system. It is a system which was meant to address the medical injury resulting from a work-place accident or occupational hazard resulting in a medical issue arising, such that compensation is allowed for a period of time during a process of recuperation.

As unfortunate as it is, Worker’s Comp has become synonymous with “harassment” and “difficult”, where approval for wage compensation, for medical treatment (including necessary surgery) has meant months and months — and often years — of wrangling and fighting; of having an OWCP case manager or adjuster being rude, failing to respond, failing to return telephone calls, and just when it seems as if something may be done, the OWCP caseworker is switched to someone else who is equally unresponsive.

Then of course there is the intrusiveness — of the OWCP nurse who sits in with you and your doctor, in a context where it is as if the “enemy” is watching that relationship which is supposed to be sacred and private:  a conversation between a doctor and the patient. It is, as I have often told clients, “a hard road to travel.”  Yet, where the medical condition, injury or disability arises as a result of a work-place accident, obviously it is financially beneficial because it pays more. That is the bottom line.  Further, it is tax-free.  But it is not a retirement system. 

Disability retirement pays less; it matters not whether the injury or medical condition occurred “on the job”; you are not required to be examined by a “second opinion doctor”; you do not have to obtain prior approval from a case manager to go and seek medical treatment.  But the benefits are much lower; it is taxable.  However, is it disability retirement.  In such a retirement, you are meant to go out and to do other things in life, including other work.

Sincerely,

Robert R. McGill, Esquire