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

Disability Retirement for Federal Workers: Moving beyond the Stagnant Waters of OWCP

“Is it possible…” is an impossible question to answer.  For, the conceptual distinction between that which is possible, as opposed to probable, is one which reveals the chasm between the world of fantasy and one of reality.  The world of the “possible” is unconstrained and unbounded; the world of probable occurrences may be fenced in by statistical constructs, actual circumstances, and real-world experiences.

While it is possible to stay on OWCP for a long duration, it is also probable that OWCP will cut off one’s benefits at some future, undetermined and unexpected time.  Thus, for the Federal or Postal employee who is on, has been on, or even is contemplating filing for, OWCP/FECA benefits because of a work-related injury, the benefit itself is attractive enough to remain on the rolls of OWCP until such time as (A) the Federal or Postal employee can return back to work, (B) the Federal or Postal Worker is deemed recovered, and the OWCP benefits are cut off, or (C) the Federal or Postal Worker decides to “move on” in life.

The first two choices are essentially out of the arena of “control” of the Federal or Postal employee, for one cannot determine or expedite the recovery period of a medical condition, and further, only the doctor (or its surrogate, the Office of Worker’s Compensation Programs) can determine whether or not the Federal or Postal work is now recovered.  As for the last choice, however, it is the Federal or Postal worker who can make the determination — especially if one has already gotten an approval from the U.S. Office of Personnel Management on one’s Federal Disability Retirement application.

OWCP is not a retirement system; one cannot work at another job while on OWCP; one must sit and do what the OWCP case worker tells you to do.  It is only with Federal Disability Retirement benefits, whether under FERS or CSRS, that one can actually engage in another, alternative vocation or career, and begin to move on in life, and become released from the stagnant waters of a constraining medical condition — or that of OWCP.

Sincerely,

Robert R. McGill, Esquire

OWCP Payments & FERS/CSRS Disability Retirement

There are many Federal and Postal workers who have been receiving OWCP payments (Temporary Total Disability benefits) for years.  Such payments can, indeed, continue for many years, or for a few months, depending upon the length of time it may take for a medical condition to persist.  

The problem with relying upon OWCP as a retirement system is that, strictly speaking, it is not a retirement system.  The Department of Labor can begin the process of sending the benefit recipient to a “Second Opinion” doctor, and the process of attempting to cut off OWCP benefits has thus begun.  

Further, there is often the problem of reliance upon OWCP, resulting in a Federal or Postal worker failing to file for Federal Disability Retirement benefits within 1 year of being separated from Federal Service.  This sometimes happens because the Federal or Postal Worker begins to feel secure in the monthly OWCP benefit, and because it pays a higher rate than FERS or CSRS Disability Retirement benefits.  However, one should never be fooled by the tenuous nature of OWCP — it is not meant to be a retirement system, and most Federal and Postal workers who have experienced first-hand the treatment by OWCP/DOL will attest to the fact that they can be sudden, arbitrary, and difficult to deal with.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Future Reviews

I have had a number of inquiries concerning events which may or may not occur post-approval of a Federal Disability Retirement application, including a Medical Questionnaire or the extent to which Federal authorities may inspect or otherwise monitor a Federal Disability Retirement annuitant.  

First, let me state the obvious:  one should never engage in fraud.  That being said, remember that the benefit of a Federal Disability Retirement annuity under FERS or CSRS overtly encourages that one should remain productive and engaged in the workforce.  Disability Retirement under FERS & CSRS is designed to compensate an individual because of a specific disability from a specific type of job.  It pays less than other forms of compensation (i.e., Worker’s Comp) precisely because it encourages you to go out and find another job in another field, one which may be part-time (and therefore would qualify you because you could not perform a similar job on a full-time basis), or one which may utilize a different set of physical requirements; or one which may be “less intense” than your former Federal or Postal work.  

Sensational stories about Federal or Postal workers who have been arrested because of video-taped evidence of engaging in high-impact sports and recreational activities, or of individuals seen performing physical exertions beyond their “stated medical limitations“, almost always involve OWCP/Worker’s Comp violations.  Under OWCP rules, an individual is receiving “temporary total disability” benefits — and the emphasis must be focused upon the middle word — “Total” — as opposed to a FERS or CSRS Federal Disability Retirement annuitant, who is receiving a retirement benefit based upon his or her medical inability to perform one or more of the essential elements of one’s job, and is encouraged and allowed to go out and get another job making up to 80% of what one’s former Federal or Postal Job paid.  There is a vast difference between the two.

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

OPM Disability Retirement: The Freedom of Retirement

In this tough economy, many people are rightly concerned that, upon an approval for Federal Disability Retirement under FERS or CSRS, that it will be difficult to “make up” the income with another job, even though a person under Federal Disability Retirement can earn up to 80% of what one’s former Federal or Postal position currently pays.  Yes, it can be tough; yes, the economy is a concern; but recessions ultimately come to an end, and while a job to make up the severe pay-cut may be long in coming, self-employment, to begin a start-up business, or to work part-time is often an excellent opportunity.  Unlike having the larger percentage of pay under OWCP-DOL benefits, a disability retirement annuity under FERS or CSRS is indeed a greater pay-cut.  But salary is not everything; the freedom of retirement, the ability to determine one’s future, and not be under the constant and close scrutiny of Worker’s Comp, accounts for much.  Where some see a severe pay-cut, others see as an opportunity to begin a second career.  And the price of freedom from those onerous fiefdoms of federal agencies is often better health, and greater enjoyment of one’s freedom and retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Service Deficiency & Medical Condition

The Office of Personnel Management will often use as a criteria of denial the argument/basis that despite the fact that an individual may have a medical condition such that the medical documentation states that the Federal or Postal worker can no longer perform one or more of the essential elements of one’s job, nevertheless, there has not been a showing that a “service deficiency” has occurred.  Often, agencies systematically write up performance appraisals without much thought or consideration; more often, Federal and Postal workers quietly suffer through his or her medical condition, and strive each day to meet the requirements of their duties. 

Whatever the reason for the lack of attention or perception on the part of the supervisor or the agency to recognize that the Federal or Postal worker has not been able to perform one or more of the essential elements of one’s job, such basis for a denial of a disability retirement application by the Office of Personnel Management is not a legitimate one, because existence of a “service deficiency” is not the whole story:  if it is found that retention in the job is “inconsistent” with the type of medical condition the Federal or Postal Worker has, then such a finding would “trump” the lack of any service deficiency.  That is not something, however, that the Office of Personnel Management is likely to tell you as they deny your disability retirement application.

Sincerely,

Robert R. McGill, Esquire