Case acceptance by the Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP) makes it easier for the Agency to make a determination on issues of accommodation, which is one of the elements which must be established in preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.
On the one hand, when a Federal employee has been deemed to be “permanent and stationary”, the issue as to whether or not the Agency can reassign the Federal employee, or accommodate him such that the employee can continue to perform all of the essential elements of his or her job, can be easily established, in conjunction with and through the cooperation of a case manager from OWCP. But even a modified job does not preclude an employee from filing for, and being eligible for, Federal Disability Retirement benefits under FERS or CSRS, precisely because such a modified or “light duty” job is not a permanent position, but rather an ad hoc set of duties as described in the prevailing case of Bracey v. OPM.
On the other hand, when a Federal or Postal employee has been accepted by OWCP and placed on “temporary total disability” — even if the “temporary” nature of such compensation continues on and on for many years — then it makes it easy for the Agency to simply forget about the employee and not even search to see if accommodating the individual is even possible.
Thus, being placed on OWCP often makes it a simple administrative matter for the Agency. No accommodations need to be searched for, and the Agency can move on, leaving the Federal or Postal employee in perpetual limbo.
Concomitantly, however, for the Federal or Postal employee, the fact that one’s medical condition has been accepted by OWCP/DOL can be used as one element to file for Federal Disability Retirement benefits, to show that being on OWCP has some evidentiary weight that (A) the Agency is unable to accommodate the Federal or Postal worker, and (B) that there is persuasive evidence that another Federal Agency has determined that the Federal or Postal employee is disabled, and (C) that receiving temporary total disability is an indicator that one is unable to perform one or more of the essential elements of one’s job.
Nevertheless, beyond the proof of acceptance by OWCP, the Federal or Postal employee must still affirmatively prove by a preponderance of the evidence that the medical evidence proves that one is unable to perform one or more of the essential elements of one’s job. Being on OWCP may have some minimal persuasive impact; it is still up to the Federal or Postal employee who is preparing, formulating and filing a Federal Disability Retirement application that he or she is eligible for the benefit.
Robert R. McGill, Esquire