“I feel your pain” has become a declaration of empathetic character in modernity; but whether born of sincerity or from political expediency, one can never know, precisely because empathy as a subjective phenomena is just as elusive as pain itself remains. How does one assess or judge, evaluate or analyze, confirm or conclude with any amount of certainty, the extent, severity, reality or even of simple existence of that which is subjective by definition? Pain, like one’s motive, falls within the realm of a person’s own experiential declaration, and is confined by the boundaries of one’s own body and universe of phenomena within the voices of one’s inner conscience and consciousness.
That is why the Department of Labor, U.S. Office of Workers Compensation (OWCP) expends its resources in verifying a claimant’s assertion of pain, limitation of physical activities and restrictions from certain duties, by video-taping hours and hours of a person’s daily activities and recreational engagements — to see whether the subjective claims correspond with the objective participation of external performances. Why doesn’t the U.S. Office of Personnel Management, for purposes of verifying a Federal Disability Retirement claim, engage in similar tactics in determining — not “empathy” or the sincerity thereof, and not even necessarily the pain claimed — the extent and severity of medical conditions claimed?
Likely, because the standard and criteria in determining eligibility for the benefits are quite different.
For OWCP purposes, while it is not a retirement system but a means of compensating an injured individual in order to have the ultimate goal of returning him or her back to work, the standard of paying a Federal or Postal worker “temporary total disability” would clearly imply two (2) things: First, as already stated, that the compensation to be provided is “temporary” (i.e., that it is not meant to remain a permanent feature of earned wage replacement) and Secondly, that a person’s incapacitation is “total” in that he or she is not able to engage in other meaningful employment and, furthermore, that the totality of the disability likely also impacts other areas of his or her life, as well — i.e., leisure activities, recreational participation, or even being able to take out the garbage (a familiar tactic of video-taping in DOL cases).
In a Federal Disability Retirement case, however, under the auspices of the U.S. Office of Personnel Management, a person who is receiving a FERS Disability Retirement annuity is allowed to also work at another job, so long as it is identifiably distinguishable from the former Federal or Postal job from which the Federal Disability Retirement benefits are received, and so long as one remain’s under the “80% rule” that caps one’s earning potential. Empathy aside, the pain that limits and restricts is often under a cloud of suspicion by the Department of Labor, precisely because “feeling one’s pain” is seen from the side of OWCP as the criteria for paying out benefits, whereas under OPM rules, it is merely a lesser standard in order to remain productive in the private sector.
Robert R. McGill, Esquire