FERS Disability Retirement: First and Foremost, a Medical Matter

A linear thought process requires priority and sequence, importance and significance, placement both in mind, culture and character.  A circular thought process allows for the equality and recognition that the totality of the universe is important to the chain of events, time, history, culture, people, and God.  Wars, famine, destruction and loss of faith can be avoided when one sees Man within the framework of circularity.  Linear thought has an end; circular thought only begins.

From Zen: The Master and the Pupil

In all phases of life, one must always determine that which precedes another in matters of priority, importance and significance.  In philosophy, and specifically Aristotelian Metaphysics, “form” (the “whatness” of a thing) enjoys priority to “matter” (the material which makes up a thing), so in all aspects of life one must always be aware of that which is important, that which is secondary, and so on.

In preparing to file for Federal Disability Retirement benefits under FERS, the “priority” of concerns must always be to attend to the medical condition, the injury, the illness, etc.  Thus, the paradigm of what happens in “real life” is often as follows: A Federal or Postal worker who has worked in the Federal sector for many, many years, begins to develop a medical condition, and in the first year of the medical condition, has to use up much of the accrued sick leave, and maybe even all of the accrued annual leave, and perhaps even some LWOP.

For the fortunate Federal or Postal employee, two elements may coalesce and the outcome would be a positive one: the medical condition is “cured” or otherwise becomes stable; the Federal Agency or the Postal Service has supported the employee, and the aberration of exhausting all of the sick leave, annual leave, and going on LWOP was a mere blip on the Federal or Postal employee’s record, and life and career advance uninterrupted.

But the identical hypothetical, in real life, can take on a very different course of events.  The medical condition progressively deteriorates the health of the individual; the medical condition becomes “chronic”; sick leave is exhausted faster than it is accrued; the work which the Federal or Postal worker leaves undone because of the lengthy absences is not left as a residue of mere whispers in the hallways of the Federal building; rather, they become a malignancy which expands into open hostility by the Agency.

At some point in the “process” of a deteriorating medical condition, the question is asked:  Is it time to file for FERS Disability Retirement benefits?  At what point does this question arise?  If it is asked too soon, there is the appearance that one is merely trying to “game the system”.  If it is asked too late, there is the untenable circumstance that the Federal or Postal employee has done everything to destroy the life and career that one has worked so hard to preserve — exhausting all savings; imprinting the blemish upon one’s reputation of being a conscientious worker; being placed on a Performance Improvement Plan (commonly referred to by its acronym, a “PIP”); straining the carefully fostered relationships developed over many years within the Agency by having others “carry the workload”, etc.

It is often the gray line — the boundary between suffering from a medical condition and attempting to take care of the medical condition; and the recognition that one must survive — financially, emotionally, for the present and the future; and the tension which builds between the two.  There is rarely a “right” time to ask about Federal Disability Retirement benefits.  At some point, it becomes a natural question.  If the Federal Agency “suggests” such a course, it is probably at a later stage than was necessary; if the doctor suggests it, it is at least a time of serious consideration.  If the Federal or Postal employee is contemplating it, then certain considerations should always come to the forefront.

When the time comes in the life of a Federal or Postal employee to contemplate filing for FERS Disability Retirement benefits, the conceptual distinction must be made between “having a medical condition” and “proving that a medical condition prevents one from performing one or more of the essential elements of one’s job.”  There is thus the “medical aspect” of the life of a Federal or Postal employee, and the “Disability Retirement applicant aspect”.  While the two should never directly conflict, the existence of the former does not necessarily guarantee the success of the latter.

This is where priority, importance, and significance come into play.

Priority:  One’s health and well-being; taking care to obtain the necessary medical treatment to regain one’s health — these should be the priority in one’s life.

Importance:  While one’s health concerns have a priority; this does not mean that collateral needs are unimportant.  Importance is not defined by priority in sequence.  Rather, there can be multiple issues of relatively equal importance, and the focus upon one does not diminish the importance of another.  In a Federal Disability Retirement application, it is critical to begin laying the groundwork in obtaining the necessary medical evidence in order to prove one’s eligibility for Federal Disability Retirement benefits under FERS.

Significance:  Keeping in mind that the priority of concern is health and well-being; that importance of other considerations does not detract from the priority of that singular focus upon one’s health; and further, that there are significant evidentiary issues which must be confronted in preparing a Federal Disability Retirement application.

How does all of this translate into the practical sphere, for a Federal or Postal worker, in preparing to file for FERS Disability Retirement benefits?  Take, for instance, the issue of medical treatment, and how such medical treatment will impact one’s eligibility in filing for Federal Disability Retirement benefits.  If surgery for a medical condition is an option, must one undergo such surgical intervention?  How about physical therapy?  Medication regimens?

Such questions obviously contain all three of the elements previously discussed — priority (which modality of treatment and to what extent), importance (whether certain medical treatments will be helpful, and what impact will refusal have upon a Federal Disability Retirement application), and significance (can refusal to engage certain modalities of treatment regimens prevent one from being eligible for Federal Disability Retirement benefits) — all coalesce and intersect.

Where does singular focus upon medical treatment end, and considerations of Federal Disability Retirement begin?  This is probably a rhetorically irrelevant question, because treatment for one’s medical condition should never “end”, but at some point, there is an intersection between the medical condition, and steps to be taken to document one’s medical condition for purposes of filing Federal Disability Retirement benefits.

When the two issues coalesce, certain legal principles need to be kept in mind.  For instance, one should note that an applicant for disability retirement benefits must establish the extent to which her disability can or cannot be “controlled”.  Shanoff v. Office of Personnel Management, 103 M.S.P.R. 549 (2006).  Furthermore, the Board has repeatedly held that the voluntary refusal to accept facially reasonable treatment, standing alone, will bar entitlement to Federal or Postal Disability Retirement benefits.

The obvious question here, of course, is what is “facially reasonable treatment”?  When an employee is unable to render useful and efficient service because the Federal or Postal employee fails or refuses to follow or to accept normal treatment, then it will be found that the disability flows, not from the disease or injury itself, but from one’s voluntary failure or refusal to take the available corrective or ameliorative action.  Again, Shanoff, 103 M.S.P.R. 549, (citing Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed. Cir. 1986)).

As the 20th Century Philosopher Ludwig Wittgenstein once noted, the mere fact that one may not be able to observe the clear demarcation between light and darkness, does not mean that either don’t exist.  Similarly, while the Merit Systems Protection Board may not always explicitly define, for each and every case, what kinds of medical treatments “must” be followed, doesn’t mean that there aren’t certain guidelines to follow.  For instance, in Diener v. Office of Personnel Management, 7 M.S.P.R. 551, 555 (1981), the Board found that an estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity.

On the other hand, it has been found that where an appellant has failed to accept facially reasonable treatment because she did not follow her physician’s recommendations to undergo psychological therapy or to take prescribed anti-depressants, such refusal would be a basis for a Federal Disability Retirement application denial.

Thus, the “spectrum” of what is facially reasonable treatment can be fairly discerned.  On the one extreme of the spectrum, is the option of undergoing invasive surgery.  On the other end of the spectrum, is the mandate of following a doctor’s medication regimen.  Everything else falls in between the two extremes.

Throughout, it is always essential to recognize that obtaining the proper medical treatment has the primacy of priority; that at some point in treating one’s medical condition, a Federal or Postal employee may begin to consider whether to file for FERS Disability Retirement benefits, and the importance of obtaining the proper documentation must be addressed; and finally, the significance of evidentiary issues in preparing a Federal Disability Retirement application must be recognized.  Thus, medical treatment is the priority; obtaining the proper medical documentation is of importance; and consideration of evidentiary issues is of significance.  Identifying and recognizing the conceptual distinction between the three will hopefully be helpful for all Federal and Postal employees who are considering filing for Federal Disability Retirement benefits.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Attorney

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.

FERS Disability Retirement Compared To OWCP

OWCP vs. FERS Disability Retirement

The Department of Labor administers Federal Worker’s Compensation Benefits through the Office of Workers’ Compensation Programs (OWCP).  Such benefits are non-taxable, and are paid for temporary total disability, for injuries or medical conditions which result from, or are caused by, a workplace injury. There are many tangential factors which may be added to this basic definition, but for purposes of distinguishing OWCP from the Office of Personnel Management (OPM) Disability Retirement, this definition will suffice. Additionally, generally speaking, OWCP/Federal Worker’s Compensation is not a “retirement system.”

OPM Disability retirement, on the other hand, is a retirement system.  As a result of a medical condition which impacts one’s ability to perform the essential elements of one’s job, a person is eligible to retire early, based upon a “medical disability.”  A person on OPM Disability Retirement is separated from the Federal Agency, and he or she may “move on” in life, and perhaps start another career (with certain limitations as stated below).

When is it Time to File for FERS Disability Retirement?

An individual must file for Federal Employees Retirement System/Civil Service Retirement System (FERS/CSRS) disability retirement benefits with the Office of Personnel Management within one (1) year of being separated from Federal Service – otherwise, the right to be eligible for disability retirement benefits is lost. Do not confuse this with being placed on Leave Without Pay (LWOP), or being out on OWCP for being injured.  The clock begins ticking when you are actually separated from service.  Most people, however, should not wait until they are separated to file for disability retirement benefits, but rather, should file whenever it becomes apparent that he or she can no longer perform one or more of the essential elements of the job.

Taxable vs NonTaxable Benefits

OWCP benefits are non-taxable.  OPM Disability Retirement benefits, on the other hand, are taxed.  While receiving disability retirement benefits, a person may undertake a job search, accept another position, and earn up to 80% of what his or her former position currently pays.  Individuals receiving OWCP temporary total disability may not work at another job – period.  Here is a sample scenario using FERS Disability Retirement rules:

A worker’s average salary for 3 consecutive years totals $50,000.  The individual goes out on disability retirement, and after the first year (in which he would receive 60%, or $30,000), he is eligible to receive an annual annuity of 40%, or $20,000.  The worker then applies for and accepts a job in the private sector.  The worker can accept a job that pays up to $40,000 per year (80% of the current salary), and still be eligible to receive the $20,000 per year disability annuity.

The 80% Rule Increases Over Time

The rule is “80% of what a person’s former job pays currently.”  If 5 years from now, a person’s former position pays $60,000 per year instead of $50,000, then he can make up to $48,000 per year at the job, because 80% of $60,000 is $48,000.

Filing for Disability Retirement while on Workers’ Compensation

It is often not a bad idea for those who are receiving OWCP benefits to remain on OWCP for as long as they can stand it (i.e., the persistent harassment, the constant oversight by so-called “2nd opinion doctors”, etc.) — but to always have the FERS/CSRS disability retirement annuity approved as a back-up source of income.  Individuals may file for disability retirement concurrently while on OWCP — but you simply cannot collect from both at the same time (See 5 C.F.R. Sec. 844.105, “Relationship to workers’ compensation. (a) Except as provided in paragraph (b) of this section, an individual who is eligible for both an annuity under part 842 or 844 of this chapter and compensation for injury or disability under subchapter I of chapter 81 of title 5, United States Code (other than a scheduled award under 5 U.S.C. 8107(c)), covering the same period of time must elect to receive either the annuity or compensation.”).

When OWCP terminates payments (and there is a very good chance that this will happen at some point in the near future), it is a wise option to have your disability retirement benefits approved, but held in an inactive status.  Federal workers have every right to elect one benefit over the other.  Indeed, if you wanted to, you are allowed to go back and forth between OWCP and FERS Disability Retirement.

As a secondary issue on this matter, a closer look at 5 U.S.C. Section 8106, paragraph (c) (2), (OWCP) on “partial disability” compared with the definition for disability retirement reveals: that “partially disabled employee who refuses or, neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.”  This means that if OWCP secures a job for you as a retail store greeter for instance, and pays you the difference between your salary and what retail store pays — and you decide to say “no”, OWCP has every right to cut off your payments.

On the other hand, under the laws concerning FERS Disability Retirement, 5 C.F.R.Sec. 844.103 (a)(2) states that, in order to be eligible for disability retirement, the individual “must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position.”  The difference here is that, under OWCP, if you are “partially disabled,” if you are offered any job that OWCP believes you can do, you must accept it.  On the other hand, under FERS/CSRS disability retirement laws, if you are partially disabled — meaning that you simply cannot do at least one or more of the essential elements of your job — then you are entitled to disability retirement benefits, and your agency or the Postal Service cannot simply offer you any job; they must offer you a job in the same pay or grade, and one in which you are qualified or, if you are in the Postal Service, then it must an accommodation in the same craft.

Controlling Your Future

Under OWCP, you have no control over your future – OWCP determines your future. Under OPM Disability Retirement, you can obtain disability retirement benefits, and then take control of your future and work at another job of your choice, make up to 80% of what your (former) position pays and still continue to receive your disability annuity.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Lawyer

 

Robert R. McGill is an attorney who specializes in OPM Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.

 

Note:  This article was originally published in Lawyers.com

What is Federal Disability Retirement?

Is it an accident that so many Federal and Postal employees are unaware of the benefit of “Federal Disability Retirement” for FERS employees?  Is it a deliberate “conspiracy of silence” — a benefit which exists but is not trumpeted by the Federal Government for fear of the floodgates of applications being opened?

More likely than not, there is another explanation:  the new Federal employee is neither concerned nor interested in a benefit which one neither imagines nor foresees as a possible avenue of choice.  The general rule in life is that the younger we are, the more invincible we believe we are; as one grows older (or wiser and more mature, as we like to think), thoughts of our own mortality and vulnerability become exponentially magnified.  Like so many things in life, the very concepts of “disability” and “retirement” (leaving aside the compounding and conjoining of the two terms) are far and removed — until it becomes a living necessity.

When a medical condition begins to impact a Federal or Postal employee, it is important to know that the benefit termed as “Federal Disability Retirement” exists and is available.  It is a benefit which is part of the total ’employment package” when an individual becomes a Federal or Postal employee.  Federal Disability Retirement allows an employee to retire earlier, but not because he or she necessarily got enough years of Federal service to qualify for a retirement annuity (that would be “regular” retirement), but because the employee is medically unable to perform the essential functions of his or her present Federal job.

Thus, when one needs to access such a benefit, one should never think that there is something degrading or nefarious about applying for Federal Disability Retirement benefits — it is not an attempt to “game the system”; it is not a judgment upon the worth of an individual; it is not a conclusion to one’s life.  Rather, it is a recognition that:  (A) one suffers from a medical condition, which (B) impacts and impedes one’s ability to perform the essential elements of one’s Federal or postal job, and (C) that one is no longer a “good fit” for one’s particular job.

It does not mean that the Federal or Postal employee cannot be productive in some other capacity; indeed, the statutes and regulations governing disability retirement annuity payments allow for an individual to go out and become employed in another, different job, so long as it is (1) substantially different from the type of essential elements which prevented one from performing in the previous job, and (2) one makes no greater than 80% of what the prior (Federal or Postal) job currently pays.

Further, for purposes of determining minimum eligibility requirements, here are some additional “basics”:  To be eligible for a disability retirement annuity under FERS or CSRS, a Federal or Postal employee must establish by a preponderance of the evidence that:

(1) he or she has completed a minimum of 18 months of Federal service (for FERS employees) or five years (for CSRS employees which, presumably, all CSRS employees already have the minimum eligible period of Federal service);

(2) while employed in a position subject to FERS or CSRS, the Federal or Postal employee becomes disabled because of a medical condition,  resulting in a deficiency in performance, conduct, or attendance, or, absent such deficiency, the medical condition must be incompatible with either useful and efficient service or retention in the position;

(3) the disabling medical condition is expected to continue for at least one year from the date the application is filed; and

(4) accommodation of the disabling medical condition in the appellant’s former position or in an existing vacant position must be unable to be accomplished by the agency.  5 U.S.C. § 8337(a); 5 C.F.R. § 831.1203(a).

The above set of legal criteria constitute the “basics” of eligibility.  Certain other elements should also be kept in mind:

The Federal employee need not prove that he or she is “totally disabled”; rather, the standard of proof which must be met is to merely show that he or she is unable, because of disease or injury, to render useful and efficient service in the position occupied.

Further, it is important to understand that “causality” is not an issue in Federal or Postal Disability Retirement law  — unlike Federal Worker’s Compensation (OWCP).  This is because, to be eligible for Federal Disability Retirement benefits, you don’t need to have an “on-the-job” injury, or suffer from an occupational disease or illness.  You can be playing touch football in your backyard and break your leg, and if the condition of your medical disability lasts for at least a year, and prevents you from performing the essential elements of your job, then you are eligible for Federal Disability Retirement benefits.

One additional – but very important – point which must be considered in filing for Federal Disability Retirement benefits.   First, one does not need to be separated from service in order to file for disability retirement.  However, if a Federal or Postal employee is separated from service, that employee has only up to one (1) year to file for Federal Disability Retirement benefits.  If you don’t file within one (1) year of being separated from service, you have lost the right to apply for such benefits forever.

Further, if a separation of service occurs, it is best to attempt to negotiate with the Agency to have the separation characterized as one based upon a medical reason — either explicitly (“separation is based upon your medical inability to perform your job”) or implicitly (“separation is based upon excessive absences,” combined with a reference in the proposed removal to medical conditions implying that the absences resulted from one’s medical conditions).   I have written many articles as to why it is important to obtain a separation from the Federal service based upon one’s inability to perform one’s job.  It is for the sake of securing what is known as the “Bruner Presumption“.

The “Bruner Presumption” is so named from a Federal Circuit Court case, Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993).   It essentially stands for the proposition that, if a Federal employee under FERS or CSRS is removed for his or her medical inability to perform the duties of his or her position, that such a specified removal constitutes “prima facie” evidence of entitlement to disability retirement.  This legalese simply means that it makes it harder for the Office of Personnel Management to deny a disability retirement application.  However, always remember that it is still, even with the Bruner Presumption, the responsibility of the applicant to show that he or she is entitled to disability retirement benefits — by having the necessary medical documentation showing that you cannot perform the essential elements of the job.

Like life insurance and health insurance, the fine print and details of the contractual benefits are often “out of sight” and “out of mind” — until the necessity arises.  Federal Disability Retirement benefits are rarely considered until the need arises.  It is a benefit accorded to all Federal and Postal employees, and is part of the “employment package” — the totality of compensatory benefits.

Placed on a linear spectrum, when an employee begins his or her Federal career, disability retirement benefits are merely an irrelevancy to set aside for those unnamed and faceless “old folks”; as one moves along the linear spectrum of life and career, however, and medical conditions develop over time, the benefits of a disability retirement annuity become magnified in importance.  A lifetime of working to obtain a semblance of financial security need not become devastated because of a medical condition.  A disability retirement annuity allows for a certain level of financial security – and secures a “fresh start” of productivity in allowing for a second career and a different occupation.  While “out of sight” for today, it is nevertheless a benefit to be mindful of for the future.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Attorney

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.