Beyond knowing the basic components of what it takes to become eligible for Federal Disability Retirement under FERS, to be submitted to the U.S. Office of Personnel Management, every Federal Disability Retirement Applicant needs to know at least 5 components of the process.
Separation First, know that from the vantage point of the U.S. Office of Personnel Management, every post-separation filing of a Federal Disability Retirement application presents a problematic case. That is because, while once separated, the law allows you to file within 1 year of being separated from Federal Service. However, the problem lies in the argument that (which OPM systematically makes) there is no way for the Agency (or OPM) to determine whether or not you could have been accommodated during the time you were a Federal employee. Furthermore, as you must prove that you were disabled during the pendency of your Federal employment, your medical documentation will likely post-date your separation from Federal Service, and OPM will argue that — as such — they are inapplicable. DO NOT let OPM get away with such specious arguments.
The Medical Documentation
Doctor’s know how to treat; they rarely know how to write an effective medical report. As such, it is important to obtain the services of a competent lawyer in order to aid in helping the doctor(s) prepare an effective medical report. No matter how serious the medical conditions, it is highly unlikely that merely gathering the compendium of your medical records will suffice in winning a Federal Disability Retirement claim with OPM.
SSDI
Yes, it is a formality and a prerequisite for filing a Federal Disability Retirement Application, and most applicants will become immediately denied because — as a Federal employee — your continued employment will automatically disqualify you for SSDI benefits. However, if you do get approved for SSDI, it can greatly enhance your chances for a FERS Disability Retirement approval from OPM.
The Bruner Presumption
If you become separated from Federal Service, it is important to consider the basis of your removal. If you are removed for your medical inability to perform the essential elements of your job, this may trigger what is called “The Bruner Presumption” — a legal mechanism where the burden is essentially placed on OPM to “disprove” your legal right to Federal Disability Retirement benefits. Furthermore, removal for excessive absences may still allow you to qualify for the Bruner Presumption, especially if there is an acknowledgment by your Agency that such absences were based upon your medical conditions.
Bracey v. OPM
There are, in fact, many cases which are clearly supportive of a Federal or Postal Disability Retirement application, such as Bracey v. OPM, which outlines what is or is not considered a legally-viable accommodation. Often, Agencies try and say that they provided or did X, Y and Z, assuming that such applications constitute an “accommodation” under the law. Do not fall for such assertions. An “accommodation” is a technical term of art, and just because your Agency thinks that they have “accommodated” you, the likelihood is that they have not.
Sincerely,
Robert R. McGill
Attorney specializing in Federal Disability Retirement Law
A disabling condition doesn’t have to be job related to qualify. Image by Francisco Zuasti from Pixabay.
With the national debt expanding, the annual deficits ever widening, the future of the Federal budget is on course for a self-determining collision with the reality of repaying debts owed. Ordinary Americans must live in accordance with the restrictions of reality-based accounting principles or, as Mr. Micawber said in Dickens’ David Copperfield: “Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery”
Where to cut in the federal budget? What tax increases will be necessary? These will be the two dominant questions for a future which will arrive sooner than we desire. “Social programs” will likely be on the proverbial chopping block, as well, in order to achieve that mythical minerva of a “balanced budget”. At such a time, perhaps a reactionary refrain about the need to “restructure” or “revamp” Civil Service benefits will likely arise. There will be discussions and arguments about the issue, but in the end, all such policy questions can be boiled down to a simple but important economic refrain: Does a program incentivize or penalize? In answering such a question, every Federal program needs a paradigm. Fortunately, the Federal Government already has one: The FERS Disability Retirement benefit.
Federal Disability Retirement is a benefit codified under 5 U.S.C. Section 8451. It allows for Federal employees who have a minimum of 18 months of federal service to apply for disability retirement benefits if a Federal or Postal employee is no longer able to perform one or more of the essential elements of his or her job, and no reasonable accommodations for the disability can be offered. While there are many complex facets to the law, the focus for this article concerns the paradigm of this benefit in terms of incentivizing or penalizing.
The unique and incentivizing feature of OPM Disability Retirement benefits is that a Federal or Postal employee can retire from the Federal Government under these provisions, and then go out into the private sector (as well as state or county government) and earn up to 80% of what one’s former Federal position currently pays, and still continue to receive the disability retirement annuity. Contrast this to the “penalizing” criteria of Social Security Disability benefits, where there is an onerous dollar amount capping and restricting the SSDI recipient, thus immediately penalizing any ideas of reentering the workforce.
Is it a self-contradiction to allow for a Federal Disability annuitant to be able to make what amounts to 120% of what his or her former position currently pays (up to 80% in the private sector, state or county governments, in addition to the 40% disability retirement annuity, calculated on the average of one’s highest-3 consecutive years of Federal Service)? Why should a person who is purportedly “disabled” be allowed to “take advantage” of the system? Isn’t it “unfair” for a person to receive a disability retirement benefit and then go out and earn wages that shows that he or she is actually not “disabled”? Such questions, of course, go to the heart of why so many well-meaning federal programs fail at the outset, and add to the growing federal deficit — for, in the end, all such questions are mired in the policy approach of penalizing, as opposed to incentivizing.
From a policy perspective, the prefatory societal question should always include the following: Can a person who is disabled still make a valuable contribution to society? Do we want to forever banish the experience, talents and acquired knowledge of a Federal or Postal employee and condemn him or her to the anonymity of a non-contributory class of former employees? Or, can we recognize the obvious — that former federal employees are a valuable resource for our economy, and if they are still able to contribute to society, we should incentivize them to do so?
The unique feature within the laws governing Federal Disability Retirement Law — which allows for the 80% rule of incentivizing further contribution in the private sector or in state and county governments — is that a federal disability retirement is based not on an onerous criteria of “total disability”, but rather, upon the the idea that a person is found disabled from being unable to perform one or more of the “essential elements” of the particular job one holds. If you think about it, such a standard is the more “reasonable” one. For, a disabled individual is rarely entirely unproductive. Rather, a specific disability — say, the loss of hand dexterity needed for an Orthopedic Surgeon working for the U.S. Department of Veterans Affairs — may qualify for Federal Disability Retirement benefits. Yet, having granted the benefit, should that surgeon be barred from sharing his knowledge and experience by teaching at a medical school and earning up to 80% of what his former federal position currently pays, on top of the disability retirement annuity?
By incentivizing work, the federal program itself gains a further benefit: the individual goes on to contribute “back into the system” by working, paying taxes, sharing his or her acquired knowledge and experience, etc., and thus the system itself becomes a “self-paying” proposition. That is, and should be, the key to any future discussions about cutting and slashing, and the Federal Disability Retirement benefit is the most progressive system which should be viewed as a paradigm in the coming years of inevitable concerns over the federal debt.
Robert R. McGill, Esquire is a Federal Lawyer who specializes exclusively in fighting for Federal employees to obtain Federal Disability Retirement benefits. He has been in private practice advocating on behalf of Federal employees for over 30 years.
This article was originally published in the HG.org directory (2/16/21)
What is the difference between “Federal” Disability Retirement and “OPM” Disability Retirement?
U.S. Office of Personnel Management (OPM)
Although some people may confuse “Federal” Disability Retirement to mean “Social Security” Disability Retirement (SSDR) because this latter benefit is a type of retirement program administered by a U.S. Federal agency, that is, the Social Security Administration (SSA) — nevertheless, most of the time “Federal” Disability Retirement actually refers to “OPM” Disability Retirement. OPM is the acronym which stands for the U.S. Office of Personnel Management, and many Federal lawyers and employees choose to use this term to differentiate it from SSA’s disability program — the Social Security Disability Retirement, which is also known as Social Security Disability Income (SSDI).
Thus, Federal Disability Retirement and OPM Disability Retirement are basically the same disability program. OPM Disability Retirement is a disability retirement plan available to Civilian Federal employees. It allows a Federal employee to retire earlier than “regular” retirement if an injury or medical condition prevents the Federal employee from performing the main work tasks of the Federal position he or she was hired for. These physical or psychiatric medical conditions should be expected to last one year or longer.
What is the difference between “FERS” Disability Retirement and “CSRS” Disability Retirement?
CSRS v. FERS Disability Retirements
Federal Employees Retirement System (FERS) and the older Civil Service Retirement System (CSRS) are the names of two sets of U.S. Codes, rules and regulations that together dictate the laws and benefits that Civilian Federal employees will receive in the United States. Military personnel are covered by the VA Disability Retirement program, where “VA” stands for the United States Department of Veterans Affairs.
Both of these types of retirement programs, FERS and CSRS, are also part of the OPM Disability Retirement program (e.g., all FERS Disability Retirement claims are also OPM Disability Retirement cases, but a particular OPM Disability Retirement claim may or may not also be a FERS Disability Retirement case), but basically the difference has to do again with the set of Federal employee laws you were hired under. Almost all Federal employees hired after December 31, 1983 are automatically covered by FERS. Thus, in practice and in most cases, when a Federal Lawyer or a Federal Agency’s Human Resources Specialist talks about FERS Disability Retirement, he or she will typically be talking about OPM Disability Retirement. The term FERS Disability Retirement is thus more specific, but since most Federal employees today are covered under FERS rules, we often use them as synonyms, too.
What is the difference between OPM “Regular” Retirement and OPM “Disability” Retirement?
Regular v. Disability Retirement from OPM
OPM Regular Retirement is when a Federal or Postal employee retires from Federal Service due his or her age and years of Civil service. As noted before, Federal Disability Retirement is a medical-based retirement available for FERS and CSRS employees. However, this medical condition or “disability” does not have to be total disability as it is the case of Social Security Disability Retirement cases.
The medical condition must be expected to last a minimum of a year. The illness or injury should be categorized as “chronic” in the sense that it won’t allow the Federal employee to work very well (technically the medical condition will not allow the employee to perform the basic “essential elements” of the job he or she was hired for by the Federal Agency). From our own experiences, most former Federal employees who are now under disability don’t even consider themselves to be disabled or incapacitated.
Perhaps this is a psychological self-defense mechanism, but it is a fairly accurate simplification that describes the self-image of many Federal disability retirees now happily working in different jobs and even living overseas. There are more technical definitions we can explain here but for now these simple explanations will suffice.
What is the difference between OPM Disability Retirement and Federal Workers Comp?
OWCP Disability claims
The Federal Employees’ Compensation Act (FECA) Program is an entirely different program which assists Federal employees and Postal workers who have sustained work-related injuries or diseases by providing them financial and medical benefits and help them to return to work. Federal Workers Compensation benefits are considered to be a short- and medium-term disability program. In other words, “OWCP” benefits (from the Office of Workers’ Compensation Programs within the Department of Labor) are not supposed to be a disability retirement program.
A key difference is that in OPM Disability Retirement, the qualifying medical condition can predate your first day of Federal employment. Under OPM Disability Retirement rules, the qualifying medical condition doesn’t have to be job-related, either. For instance, if you are a Mail Carrier and your eyes get hurt playing golf while vacationing in the Bahamas, and as a result of this accident, you can’t permanently drive your Postal vehicle safely anymore, then even though you will not qualify for OWCP benefits, you may still qualify for OPM Disability Retirement.
Another difference is that while most Federal and Postal employees are usually aware of the existence of Workers Comp or FECA disability benefits, at the same time, many of them have never heard of such a thing as “Federal Disability Retirement benefits”. Many tend to confuse it with Social Security Disability Retirement. Also, even when they are aware of this OPM disability program, they tend to believe that this program is administered by their own Agency or by the U.S. Postal Service. This is not true, either. Federal employees are not at the mercy of their employing Federal agencies.
How hard is to get Federal Employee OPM Disability Retirement?
How difficult is to get OPM Disability Retirement?
This is a very general question, and the answer really depends not only on your specific Federal position (on the basic positional duties of the job you were hired for by your Federal Agency or the U.S. Postal Service), but it also depends upon your particular physical or psychiatric condition and the nature of your medical limitations. Most Federal Disability Retirement Attorneys would argue that the general requirements of OPM Disability Retirement are easier to meet than those of the VA and even the SSA. This is true in almost all medical cases, but a potential difficulty to qualify for OPM Disability Retirement may arise due the fact that most doctors are not readily familiar with the legal criteria necessary to write a useful medical opinion. In fact, all they will usually do is just to fill out forms without knowing what they need to legally prove. In the end, you may end up being considered to be “disabled” — and yet your OPM Disability Retirement application can still be denied.
I only have only “X” years of Federal Service, do I qualify for Federal Disability Retirement?
If you are a CSRS employee, you will need 5 years of creditable Federal Service to qualify for disability Retirement. However, Federal employees covered by the FERS system need only 18 months of Federal service to qualify for OPM Disability Retirement. If you are not sure which retirement system you were hired under, the general rule is that if you were hired after 1983, you are a FERS employee.
In many typical situations, older Federal employees with many years of public service will be able to qualify for either “regular” or “disability” retirement (in that case they should still consult with an OPM Disability Retirement attorney to help them to figure out which one will pay the more). Younger employees who suffer from a medical condition will not always be able to qualify for OPM Disability Retirement for several reasons. In such a case, many Federal agencies will typically behave unethically, hoping that the employee will just quit and leave the Federal Service empty-handed. This happens in many Federal agencies, but the U.S. Postal Service is especially guilty of this type of behavior.
I suffer from a specific medical condition, does this condition necessarily qualify for OPM Disability Retirement?
Brain inflammation in Federal employees
While there is not an “official” list of OPM qualified medical conditions (as it’s the case of SSA), you will be considered disabled under OPM Disability Retirement rules if your particular physical or psychiatric condition(s) prevent(s) you from continuing to perform efficient service in the Federal Service. So, in theory, it is not so much “what” your medical condition is, but “how” it interferes with the quality of your work performance. Even if you are accommodated but you can’t work efficiently, you may qualify for a Federal Disability retirement pension. That is basically the main idea with the original disability provisions under both FERS and CSRS laws.
Of course, in the “real world”, they would rather let you go empty handed. Therefore, in order to qualify for disability retirement, your treating physician will typically need to be familiarized with FERS and CSRS laws to fill out the proper OPM medical forms to help you to explain to OPM how your current medical condition will make you eligible for OPM Disability Retirement benefits. There are several legal and medical issues your primary health care provider should know to achieve this end. However, just to illustrate an example of a potential problem, if your primary health care provider doesn’t write that your particular physical or psychiatric conditions will be expected to last for at least one year, even if that is very obvious, your medical disability application will likely be defeated and denied.
Who approves or denies the Federal Disability Retirement application?
OPM and the Federal Disability Retirement Process
During the first two stages of the Federal Disability Retirement process, the Federal Agency responsible for reviewing your Federal Employee Disability Retirement application will be the U.S. Office of Personnel Management (OPM). If your “OPM” Disability Retirement claim is denied twice by OPM (First at the Initial Stage, then at the 2nd, or Reconsideration Stage), you will then need to file an appeal to the U.S. Merit Systems Protection Board (MSPB). In this Third Stage (the MSPB), OPM will cease to be the reviewer and will instead become the prosecutor. They will try very hard to stand by their decision. At this stage, it is strongly recommended that you hire an experienced Federal Disability Retirement lawyer.
MSPB and the Federal Disability Retirement Process
There are many general practice attorneys and Federal employee “advocates” who will be willing to take your case up to the Third Stage of the Federal Disability Retirement process, also known as the MSPB stage, but in our opinion, it is better to hire an attorney experienced with this type of administrative laws right from the beginning. Unless you have an alternative future source of income (e.g., a golden parachute from a previous executive career in the private sector), you should spend time to prepare your disability retirement application well from Day One. If your application has already been denied twice, winning a disability claim with the MSPB will be a tougher call for several reasons.
At the Third Stage, your opponents will not just be Federal Disability Retirement “clerks” from OPM, but instead, you will be dealing with experienced OPM attorneys. Even if you decide to hire an experienced OPM Disability Retirement attorney to help you with your case at this late stage, he or she will still have a hard time refuting absurd arguments made by OPM’s legal representative, such as: “Oh, but your own medical documentation shows that you told your primary doctor you were feeling just fine on such and such dates”.
Can I get OPM Disability Retirement even if my Federal agency or the Postal Service has accommodated me?
Light duty is not “legal” accommodation
In theory, Yes. This is because, technically, a “legal” accommodation is not the same as a light/limited duty accommodation. In practice, OPM clerks will deliberately ignore this fact; instead, they will argue that any accommodation provided by your Agency will constitute a legal accommodation. They might even argue that by signing the acceptance of a light duty job offer you were clearly stating that you were happily accommodated by your Agency. OPM Disability Retirement Attorneys who deal with these issues all the time should be able to prepare for you a strategy that will preempt this and other types of potential arguments OPM disability clerks and sometimes even OPM lawyers will try to use to defeat your Federal or Postal Disability Retirement application.
What will happen when I turn 62 years old?
OPM Disability Retirement at age 62
Your “medical” retirement will be recalculated to become a “regular” retirement, and your annuity will be adjusted. The good news is that all of the years you were under “disability” retirement will count towards your future regular retirement (in some cases even the years you spent in the military, if it was bought back). For instance, if you worked for 10 years in the Postal Service, and you spend 20 years in Postal Disability Retirement, you will be credited for a total of 30 years for purposes of calculating your future “regular” OPM retirement.
How long does a FERS Disability Retirement benefit last?
OPM Disability and Regular Retirement will basically last a lifetime
Your OPM Disability Retirement annuity checks continue to show up on the 1st of each month in your bank statements until your 62nd birthday. After that date, you will no longer be considered a Federal Disability Retirement pensioner but a regular Federal employee retiree. So, in a way, these benefits will last forever (there are also some family survivor provisions). However, this is assuming that OPM will continue considering you to be “disabled” under their own rules. They will send you periodic medical questionnaires (unless you are also an SSDI recipient, in which case OPM will normally let the good folks at the SSA worry about these disability verification tasks). This is one extra reason why you should always keep up with your doctor’s appointments.
Can I get VA Disability Retirement and OPM Disability Retirement benefits at the same time?
VA Disability Retirement
Yes. There is no offset between the two. Veterans are able to receive both VA Disability benefits and FERS Disability Retirement annuity payments without any offsets or penalties for receiving both annuities. In this case, the Veteran can also opt to receive medical care from a VA health care center, Medicare from the SSA, and even a subsidized private FERS health insurance just like regular FERS employees do. Of course, opting out from some of these benefits may save the Veteran from paying premiums for duplicative benefits. It is therefore important that the Veteran understands all options available for purposes of future planning. Some mistakes can cost the retiree hundreds of dollars a month.
Can I get Federal Workers Comp and OPM Disability Retirement at the same time?
The Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP)
No. Keep in mind that OWCP DOL job-related disability payments are supposed to be temporary benefits only. Thus, what we recommend doing in most cases is to apply for OPM Disability Retirement benefits until OWCP cancels your benefits for good — or until you can no longer take all the harassment from the OWCP specialists and nurses in exchange for more money (OWCP does pay more than OPM Disability Retirement).
If you don’t file for OPM Disability Retirement and your agency officially separates you from Federal Service, you only have one year from the date of separation to file for Federal Disability Retirement benefits. If you fail to file within that timeframe, you will lose your right to file for Federal Disability Retirement benefits forever. This is yet another reason why you should take your OPM Disability Retirement preparation seriously. In this case, if you do qualify for OPM Disability Retirement and later OWCP decides to terminate their benefits, you can then activate your OPM Disability Retirement benefits.
Can I get a personal injury compensation claim with the Federal Government and OPM Disability Retirement at the same time?
Yes. Personal injury compensation payments, more correctly called Scheduled Awards under OWCP, is a lump-sum payment from the Federal Government to Federal employees, and these payments are available for certain injuries or medical conditions which are job-related. These cash awards are paid for injuries to specific body parts, such as an arm or a leg. They can be “scheduled” to be paid monthly for a certain period of time (e.g., two years), or they can be paid all together in an equivalent “lump sum” (most recipients choose the latter option).
Since there is no Statute of Limitations for Scheduled Awards, we recommend focusing your initial efforts on getting OPM Disability Retirement benefits. Once you get your OPM Disability Retirement approved — and in the process you also get back on your feet, financially speaking, it will be in your best interest to try and pursue a Scheduled Award claim, provided that your limb injury was already accepted as a job-related condition by Workers Comp (if not, you’ll need to talk to your doctor to establish the necessary connection). It is better to fight one battle at a time, and where and when you fight each battle is important for the ultimate outcome of the “war”.
Can I file for OPM Disability retirement and sue a Federal Agency for disability discrimination under EEOC rules?
EEOC Disability Discrimination Complaint
Yes. However, in our opinion, EEOC claims are often very hard to prove. There seems to be a perception these days that discrimination occurs with great prevalence in the Federal Workplace, but never to you. Because an injury or illness has real, devastating financial effects on Federal employees, many Federal employees decide to use their limited economic resources on their best shot. Sometimes, you will also be required to find a mediator before any EEOC filing. Each case is, of course, different, but in general EEOC disability discrimination claims can be extremely stressful for Federal employees who are already suffering from one or (more often) several medical conditions.
Can I get OPM Disability Retirement and Social Security Disability Retirement at the same time?
Social Security Disability Insurance (SSDI)
Yes, but there will be an offset or reduction in the FERS annuity (as Social Security is primary, and the offset takes away from the FERS Disability Retirement annuity).
Besides the offset, there are several other considerations to keep in mind if you decide to file for both FERS Disability Retirement and Social Security Disability Insurance (SSDI). Please refer to the article Some Thoughts on Social Security and FERS Disability Retirement for more information.
How is OPM Disability Retirement calculated?
How much does OPM Disability Retirement pay?
In the first year, your FERS disability retirement annuity will be calculated based upon 60% of your average of your highest-3 consecutive years of service, minus any Social Security Disability Insurance (SSDI) payments you might also be entitled to. After that, your annuity will be calculated using the 40% of your high-3 minus 60 % of your SSDI payment. Of course, if you don’t qualify for SSDI, there will be no subtraction or “offset”. At the age of 62, your disability retirement will become regular retirement with a new computation.
As a FERS Disability Retirement retiree, will I have to pay Federal income taxes?
Yes. OPM Disability Retirement income is taxable in the United States and its territories.
Will I be able to keep my subsidized health and dental insurance?
Federal Employee Health Benefits (FEHB)
Yes. However, there might be some slight variations about what insurance companies are available and how much they will charge you. An advantage of receiving a subsidized FERS health insurance is that if you move overseas, some companies like Blue Cross/Blue Shield (no promotion intended) will allow you to use your medical insurance in other countries. This is in contrast to the benefits offered by the SSA in that if you choose to have Medicare, you won’t be able use that form of medical insurance outside the United States and its territories.
Can I work or start my own small business if I receive OPM Disability Retirement?
Yes. This is a case in which Federal Disability Retirement benefits differs with Federal Workers Comp. However, your new job must be outside the Federal Government sector. Also, keep in mind that if your earned income is more than 80% of what your former Federal position currently pays, you can lose your OPM Disability Retirement benefits for the year following the year you exceeded the 80% limit. If this happens, chances are that you will no longer qualify for regular retirement when you turn 62 years old. Thus, be careful with your future earned income. Most forms of “passive” income, however, do not count towards the 80% threshold.
This is a strange world we live in. The Covid-19 Pandemic has impacted all sectors of the economy, devastated large segments of our society, ravaged the older generation and effectively shut down social interaction. Federal employees and U.S. Postal workers may appear to be relatively unscathed because they remain employed, salaried and productive — much of it through teleworking arrangements. Certain jobs, of course, cannot be accommodated through teleworking. Thus, Air Traffic Controllers, Special Agents, TSA workers, Criminal Investigators, Correctional Officers, CBP Officers and a multitude of other positions do not easily lend to teleworking, and even those who have the limited capability of working from home must still come into the office to pick up mail, obtain files and otherwise interact and interface with other essential elements of the position. Whether by actual consequences of the Corona Virus, or the potential thereof, Federal Disability Retirement must be an option open to Federal and Postal employees.
The laws governing Federal Disability Retirement are simple enough: A medical condition suffered while being a Federal or Postal employee, which results in a Federal or Postal Worker being prevented from performing one or more of the essential elements of one’s position. In the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals there clearly stated the applicable standard for disability retirement determinations, stating therein that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.” How will the potentiality of Covid-19’s after-effects — of attacking those who are vulnerable because of underlying medical conditions — impact a Federal Disability Retirement application? For, it is one thing to assert that a specific medical condition prevents a Federal or Postal employee from performing an essential element of one’s job; it is quite another thing to argue that, because of an underlying medical condition, a person cannot return to one’s position because, to do so will unreasonably endanger a person by being exposed to a deadly virus that has already proven to ravage and take advantage of pre-existing medical conditions. Of course, if a vaccine were to be produced, such issues may become a moot point. Until then, however, the issue of Covid-19 and its impact upon a Federal Disability Retirement application remains fluid, at best.
Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), of course, is another oft-cited case which clearly delineates the eligibility criteria for Federal Disability Retirement. There, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.” This 3-pronged clarification of the criteria for Federal Disability Retirement can be used in evaluating a case involving a Federal or Postal employee who suffers from underlying medical conditions which may potentially pose an unreasonable risk if exposed to the Covid-19 virus. Take statutory criteria No. 1 — where the disabling medical condition “is expected to continue for at least one year”; are we referring to the underlying medical conditions in isolation from the potential impact of being exposed to Covid-19? If so, unless the underlying medical conditions themselves prevent the Federal or Postal employee from performing his or her job functions, then it is unlikely that a Federal or Postal employee will become eligible for Federal Disability Retirement benefits in connection with the Corona Virus issue. However, if a treating medical doctor places unequivocal restrictions upon a person’s ability to go to work because of the potentially deadly impact that exposure to the Corona Virus would have upon that person’s health, would that be enough to qualify for Federal Disability Retirement benefits? Especially, if no vaccine or reasonable treatment regimens have been discovered? This is an open question that may have to be “explored” with test cases which will surely come about in the very near future.
With respect to criteria 2 & 3 of the Bracey decision, the same arguments would apply, of course. Non-attendance and deficient performance because of a medical restriction imposed by a treating doctor upon a Federal or Postal employee with a compromised immune system, underlying medical conditions such as diabetes or preexisting respiratory illnesses, etc., will no doubt be a basis for filing a Federal or Postal Disability Retirement application. Similarly, no Federal Agency or Postal facility will be able to guarantee that an “accommodation” can be provided where exposure to the Corona Virus will be prevented; for, in many instances, such exposure would essentially be a death sentence. “Incompatibility” is the “4th” standard in a Federal Disability Retirement application, when a Federal or Postal employee lacks any deficiencies in performance, conduct or attendance, but where a person’s medical conditions are no longer consistent with continuation in a Federal or Postal position.
Additionally, the question for the future will be — to what extent can a Federal Agency “accommodate “the potency and potentiality of a deadly disease? And, on the flip-side, what is a “reasonable” level of risk that a Federal or Postal employee who has an underlying medical condition must face before the law concludes that you are eligible for OPM Disability Retirement benefits? These are, ultimately medical questions insofar as one’s treating doctor will have to weigh the severity and extent of a person’s underlying medical condition, and balance such medical facts as against the risk of exposure to the Covid-19 virus and the potential resulting consequences. As more and more information is gathered by the Centers for Disease Control and Prevention and the rest of the medical community, some of these questions surrounding Federal Disability Retirement, accommodation needs and inherent risks in performing one’s Federal job or Postal craft will become clarified. Ultimately, however, when preparing a Federal Disability Retirement application under FERS which involves a Covid-19 issue — whether of its potential danger because of an underlying medical condition or its direct impact because it involves a Federal or Postal employee who has already contracted and suffered from its toll — a proper nexus must be established that connects all of the “dots” between the medical conditions involved, the essential elements of one’s Federal or Postal position, and the ability and capacity of a Federal Agency or Postal facility to properly “accommodate” a person’s medical conditions.
The Covid-19 Virus is, as many have characterized it, invisible, deadly, and still mysterious. What impact it has upon Federal employees and Postal workers who suffer from co-morbidities which, in and of themselves may not qualify for Federal Disability Retirement benefits; the extent of the potential for serious medical consequences if one contracts the Corona Virus; and the type of reasonable accommodations which must be offered by a Federal Agency or the Postal Service — these are still open-ended questions to be answered, perhaps by rulings in cases at the U.S. Merit Systems Protection Board. In the end, Federal employees should not have to face a choice between one’s job and the potentiality of exposure to the Covid-19; but in preparing an effective Federal Disability Retirement application involving the Corona Virus and its potential impact, a proper nexus will have to be established to show that an incompatibility exists between one’s Federal or Postal job and the medical risks involved.
Robert R. McGill is an expert advisor for Federal Disability Retirement claims, a highly specialized legal practice which he, as a Federal employee attorney, 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 blog.
This article was originally published in the HG.org directory (5/14/20)
Dog attacks can cause permanent damage, including disfigurement, nerve and tissue damage, and psychological trauma that can last for years.
Postal employees with disabilities comprise a challenge unique to the group as a whole, precisely because of the inherent nature of the physical requirements of the work itself. Compounding this problem is the added difficulty of restricted access to vital information concerning options and benefits accessible — such as being eligible for Federal Disability Retirement benefits. Whether restricted access is deliberate and intentional (as one can extrapolate from the recent EEOC ruling concerning the National Reassessment Program and the systematic campaign perpetrated by the U.S. Postal Service to shed its rolls of employees who required special accommodations) or resulting from a centralized bureaucracy (where the single source of information is retained at a facility at the H.R. Shared Services in Greensboro, North Carolina), the plain fact is that many Postal employees don’t even know that they may be eligible for Federal Disability Retirement benefits under 5 U.S.C. 8451, et seq.
Confusion abounds. Life itself is confusing enough. The old idiom about “the straw that broke the camel’s back” aptly describes the stresses of modernity. We live in a stress-filled world; our daily lives are filled with so much busy-ness that we can barely attend to those things that are most important: Our jobs; our ability to maintain our finances; our kids and meeting their needs; our relationships, and meeting our own needs. Then, when a medical condition hits, it becomes the “last straw” that seemingly tears apart the fragile fabric that kept everything seamlessly together. Homophones — “seems” and “seams” — applies to our daily lives. We give the outward appearance — “seems” that we have everything put together — “seams” — when in fact what seems to be the case is a matter of seams that are stitched together in a haphazard manner.
We always think that it will never be “me”; that the misfortune we hear about — whether through anecdotal evidence, in the newspapers, or perhaps through word-of-mouth about a family member who has been hit with tragic circumstances — is something distant and will somehow never entangle or intrude upon our own lives. We buy insurance policies against disasters, but never think we will ever have to activate them. We eat meals “on the run”, knowing that we aren’t really taking good care of ourselves, but mistakenly thinking that the human body is strong enough to withstand some short-term mistreatment — until the days we do it turn into weeks; the weeks, aggregate into months; and the months become years and into decades of maltreatment. The youthful notion of invincibility and immortality somehow betrays our own inner sense of guilt. Then, the inevitable occurs: a medical condition hits us unexpectedly. But was it ever really unexpected?
The nature of the Postal System itself is contrary to human nature. The repetitive tasks required of most jobs, whether in the “Clerk Craft” or the carrier craft — and whether as a Rural Carrier or a City Carrier; as a Flat Sorter Clerk, a Mail Processing Clerk, a Distribution Clerk or a Sales, Service and Distribution Clerk or any number of related clerical jobs, the plain fact is that all of the “crafts” involved go against the grain of human dynamics in repetitive usage of the human anatomy. GM and Ford have robotic arms to open and shut the doors of a new vehicle to test the viability and longevity of manufactured parts. If something fails, the mechanical part can be replaced. For human beings, the “mechanical part” is a series of bones, tissues and cartilages that — while repair is possible — can never be fully replaced once damaged or injured.
Most Postal employees are familiar with OWCP/Department of Labor benefits. There is a general notion that if a Postal employee is injured on the job, there is a benefit that is accessible. The idea that there must be a causal nexus proven in order to qualify for OWCP (“Worker’s Compensation”) benefits is generally understood. Thus, if a person becomes injured while “on the job”, being compensated both for the injury itself as well as the loss of wages is fairly routine. But what about the door handle that snaps off of the automobile after the 10,000th pull? What happens if the knee begins to degenerate or the shoulder becomes beset with a chronic ache, slowly turning into a sharp pain? Can causality be so easily proven? Can it be proven that it is an “occupational disease or injury” that is “caused” by the particular type of work that the Postal employee has engaged in for multiple years?
Even if can be proven, how long will OWCP continue to pay the Postal employee until the Department of Labor does one of two things: (1) Assign a “Second Opinion” doctor (i.e., a so-called “Independent Medical Examination”) and deem that you are sufficiently recovered and ordered to return to full duty, or (2) find a job in the private sector that the (now former) Postal employee is considered “qualified” for, and deduct the anticipated yearly amount from the OWCP payments, thus ending one’s career? Is there an alternative?
Federal Disability Retirement is a benefit available for all Federal and Postal employees under FERS. The medical condition or injury does NOT have to result from an “on the job” injury, nor from an occupationally-related disease or injury. The medical condition, injury or disease can occur and be precipitated from a vacation, a skiing accident, an automobile mishap or any number of inconceivable incidents — and the mere fact that it is not “job-related” has no bearing on the eligibility criteria for a Federal Disability Retirement annuity. In other words, “causality” is not an issue, for the most part, in becoming eligible for Federal Disability Retirement benefits under FERS.
Postal employees with disabilities face a unique challenge in our society, precisely because few other industries require the daily, intensive and repetitive utilization of the human anatomy in such a consistent, self-abusive manner. What other position description requires the individual to engage in so many variables involving super-human efforts? Of constant standing, bending, lifting, reaching, being able to lift packages and parcels weighing up to 70 pounds of asymmetrical and awkward dimensions, and to do it day in and day out in harsh weather and adverse circumstances? It takes a healthy individual and tests the farthest limits of human durability and distance; and in the end, there comes a “breaking point” for even the strongest of the strong. It is because of this that Federal Disability Retirement is an important benefit that remains accessible and available, and should be considered by postal employees with disabilities in this world where the robot cannot yet replace the human Postal worker in the efficient processing and delivery of our mail.
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.
Should you worry about how much it will cost you to hire a Federal Disability Lawyer?
It is a genuine worry. There are plenty of lawyers on the Internet who say that they “guarantee” — with a “money-back” promise — a successful outcome. But what good is it to give you back your money if your application is denied at the first hint of trouble, and how much work and effort do you think such a law firm will put into your case? At first sight, a “money-back” guarantee may seem like an attractive proposition. You’ll get your money back if a Federal Disability Lawyer can’t deliver. The problem is: How much “delivery” will there be to begin with? And what good is the money returned if you have not secured your Federal Disability Retirement benefits — and more importantly, if you didn’t even put enough effort into a case to give it a fighting chance?
By the time you come to a point where filing for Federal disability retirement benefits becomes a reality, you have already invested both time and money into a career whose goal was to create a “nest egg” for retirement purposes. You may have already invested 10, 20 or even 30 years in a Federal career, and you are about to lose everything because of an injury or a medical condition. Taken in that context, “How much” you will be paying to your attorney shouldn’t be your primary concern. The attorney you hire might promise you your money back — but what good is that if you haven’t taken your “best shot” at securing your future? In filing for Federal Disability Retirement benefits, you are given only one opportunity to save your 10-30 years of hard work before it is thrown out the window. Who you hire as your Federal Disability Lawyer; how much he is willing to fight on your behalf; what effort will be expended on your behalf; whether he is accessible to you throughout the process — these and many more considerations should be part of the “investment” into your own future. On the other hand, your “Federal Disability Lawyer” who gives you that “money-back guarantee” might realize that your case is too hard to fight for, that it was not “easy money” and he/she might therefore decide to quit on you. Yes, it can happen. It has happened to others.
Meanwhile, your Agency or the Postal Service might have already let you go because you filed for Federal Disability Retirement. The potential disaster is that you were “medically separated” but you didn’t qualify for Federal Disability Retirement benefits. Yes, it can happen. It has happened to others.
When you are struggling to survive after spending a 10-30 year career with the Federal Government, your legal fees are still an important consideration — but even this financial consideration should really be comparatively unimportant when considering the bridges you might be burning behind you. Don’t be fooled by the “100% Money Back Promise”.
Be smart. Hire the best Federal Disability Lawyer you can find. Do your homework: Ask former Federal employees who have already successfully filed for Federal Disability Retirement benefits (nothing can beat a personal recommendation); consult with an honest union steward; and research for the best attorney in the field. Read real reviews (a tip: if an attorney can write his/her own review on his website or even in Google reviews, that might not be a good basis upon which to make a decision); go instead to reputable lawyer directories, public forums, or even the BBB after finding potential Federal Disability Lawyers.
In the end, saving a few hundred of dollars might cost you the rest of your life savings. Be smart. Medical conditions can become a disaster in the life of the Federal or Postal employee. Don’t let a medical disaster become a legal disaster.
Legal standards of proof provide various levels of criteria which, depending upon the genus of law (e.g., administrative, civil, criminal, etc.), are an important factor to understand before entering the arena of legal battles.
Thus, generally speaking, the three most common applicable standards of proof which are recognized in law are: Preponderance of the evidence; Clear and convincing evidence; and Beyond a reasonable doubt. The conceptual demarcation between each of the three are obviously easier to recognize when the comparisons are between “preponderance of the evidence” and “beyond a reasonable doubt”, as opposed to making a comparative analysis between the first and the second, or between the second and third. For, boundaries between levels of such standards, when close to proximal linguistic constructs, can overlap and create incestuous overlapping. One can thus argue that where X is ‘clear and convincing’, it may also be beyond a reasonable doubt. Whereas, to show that X is proven by a ‘preponderance of the evidence’ is a far cry from asserting that it is beyond a reasonable doubt. On the other hand, for X to be beyond a reasonable doubt, would logically require that it is both ‘clear and convincing’ as well as ‘more likely than not.’ The higher standard always subsumes the lower ones, but the lower ones do not necessarily satisfy the higher ones.
While the theoretical application of such standards of proof are easy to discuss in an academic sense, it is always the “details” of how one goes about reviewing, analyzing and applying the evidence that betrays the true mechanical application in any legal forum. In filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal or Postal employee attempting to prove the nexus between one’s medical condition and his or her medical inability to perform one or more of the essential elements of one’s job, needs to only “prove” the lowest of the three standards — that the evidence presented is more “likely” than not to be true. For all Federal Disability Retirement cases are based upon the “preponderance of the evidence” standard of proof.
There is, as always, the academic, theoretical world of evidentiary standards, as opposed to the practical reality of application and practice. In the theoretical world, academics and professors of law speak in terms of conceptual hierarchies and what constitutes satisfaction of a particular standard of proof. In the practical world, where the actual battles are fought, lawyers and the applicants who are represented by lawyers in a Federal Disability Retirement case, must constantly contend with the issue of whether the applicable standard of proof — “preponderance of the evidence” — is being strictly adhered to.
The problem with standards of proof is always found in the details of such standards. One would think that whether a piece of evidence, a medical report, the testimony of a doctor, or the lay person’s opinion on a matter, is “more likely than not” to be true, should be a fairly easy standard to meet. Moreover, if there is no rebuttal evidence — and in a Federal Disability Retirement case, there is never any true rebuttal evidence — it should almost be a certainty that the appellant would prevail in such a case. Given all of the above, how does one “lose” a Federal Disability Retirement case?
To begin with, the perversion of a standard of proof occurs with the insidious infiltration of inappropriate and invidious conceptual constructs — ones which are anathema to the paradigmatic understanding of the standard itself. Thus, whereas the higher standard always subsumes any lesser standard of proof, the inverse should never be required in a case. The standard of proof should always be weary of the introduction of terms which tend to elevate or denigrate the standard itself, and sanitation and inoculation against corruption of the proper standard is a necessary part of every case. Since ‘precedence’ is what makes a case applicable for future use, the constancy of the standard of proof must remain true and unchanging.
One may argue that a piece of evidence X establishes that it is beyond a reasonable doubt that one is entitled to Federal Disability Retirement benefits; and since X meets the highest standard, by logical necessity, it must by definition meet the lower standards of ‘clear and convincing’ as well as ‘preponderance of the evidence’. Obviously, the inverse would not be true — that to say that X establishes the satisfaction of the ‘preponderance of the evidence’ standard necessarily meets the criteria of ‘clear and convincing’ and ‘beyond a reasonable doubt’ standards; for the satisfaction of the lower does not entail the higher, whereas meeting the higher standards subsumes by logical domino effect each of the lower standards or proof.
In a very real practical sense, the Office of Personnel Management has the highest burden of proof to meet, precisely because they offer no evidence, or rarely offer, in a Federal Disability Retirement application. Judges often have to be reminded that there is a wide chasm between (a) the question asked and (b) the answer given. Questions do not constitute evidence; only answers are considered evidence. How a question is asked, of course, can sometimes influence the evidentiary import of the answer, and the tone and inflection of a question can undermine the apparent believability of an answer. But since OPM rarely, if ever, introduces any actual evidence in a Federal Disability Retirement application, it should be fairly easy for most Federal Disability Retirement applications to be approved.
“Preponderance of the evidence” is the lowest of the three standards of proof discussed herein. Such a standard, by some interpretive perspectives, merely requires a showing that the evidence show that it is “more likely than not” that the Federal or Postal Worker is no longer able to perform one or more of the essential elements of one’s job. Understanding the requirement of the applicable standard of proof will help the potential Federal or Postal worker who is considering filing for Federal Disability Retirement benefits, in assessing the quality and extent of the evidence needed to prove one’s case. The danger, of course, is in thinking that, because it is a very minimal standard of proof, not much is needed to win. One should never approach a Federal Disability Retirement case in such a de minimis manner. It is better to keep in mind the principle mentioned above that the higher standard of proof subsumes by logical necessity the lower standard of proof. That being said, it is best to prepare a Federal Disability Retirement case by setting out to prove the highest standard of proof; and by doing so, by logical necessity, practical application, and persuasive authority, one will ensure the best chance of success of obtaining a Federal Disability Retirement benefit.
FERS Disability Retirement is a lifetime benefit provided for the Federal or Postal worker who is (A) no longer able to perform his or her particular kind of job, as a result of a medical condition which prevents the continuation of such work or is otherwise inconsistent with retention in such a position, and (B) beset with such a medical condition which will last for a minimum of 12 months or more. In order to become eligible, however, one must prove by a preponderance of the evidence that one is qualified for such a benefit. In order to meet the qualification criteria, as set by statute and regulation, one must understand, and by understanding, meet the statutory requirements, of what is meant by “preponderance of the evidence.” The legal burden of proof is that which determines the eligibility criteria; by understanding the legal burden of proof, one takes the first steps in preparing and formulating the basis for eligibility, and thereby securing one’s future. Never take for granted that which one must prove; for the validity and value of “proof” is determined by the applicable standard of proof, and where such a standard is applied by judges — i.e., human beings who are imperfect and susceptible to persuasive rhetorical arguments — room for error must be factored in when preparing, formulating and filing for Federal Disability Retirement benefits, whether under CSRS or FERS.
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 OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his FERS Disability Retirement website.
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.
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.
Stress after a medical condition in the Federal workplace
Filing for Federal Disability Retirement through one’s agency, and ultimately with the U.S. Office of Personnel Management, whether the Federal employee or the U.S. Postal Worker is under FER, CSRS or CSRS-Offset, is both a reflection of life’s inevitable vicissitudes, as well as a timed indicator for needed change. It can be considered as one of life’s major traumas, as it combines a compendium of a tripartite composite: A medical condition; impact upon a significant component of one’s life — that of one’s employment, career and vocation, which one worked so hard to achieve; and a necessary alteration of employment leading to financial instability, downsizing and economic turmoil.
Stress becomes an inherent part of the entire administrative process in filing for Federal or Postal Disability Retirement benefits. It is a time when stress is least tolerable, because of the impact of the medical condition upon one’s life and capacity to work; and yet, it seems that the unavoidable adage of old can never be averted: When it rains, it must by necessity pour.
In a distant, hypothetical manner of thinking, one expects that as one grows older, medical conditions will begin to impact one’s capacity and capabilities, both physically and in cognitively dysfunctional ways. But there are many Federal and Postal employees who find that a medical condition impacts one’s ability to perform one or more of the essential elements of one’s job, when one is merely in their 30s or 40s. Stressful careers have a tendency to take their pound of flesh. From Law Enforcement positions, to cognitive-intensive duties required of Budget Analysts, Revenue Agents, IT Specialists; to FAA Air Traffic Control Specialists; to the constant and repetitive physical work required of Letter Carriers, Distribution Clerks and Supervisors and Postmasters; the level of stress, both physically and mentally, placed upon Federal and Postal workers who have been asked to do more with less in this continuum of a slowed economy beset with a pubic which mistakenly believes that Federal and Postal workers are overpaid and underworked; the resultant consequential impact is the exponential rise in progressively deteriorating disabilities which call for the necessity of filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether the disabled Federal employee or the injured Postal worker is under FERS, CSRS or CSRS Offset.
Percentage of Federal Disability Retirement approval: Do you even have a case?
Like the praying mantis whose bright green sheen in early spring metamorphosing into the brown of mortal prefacing, the writing is on the wall for the Federal employee or the U.S. Postal Service worker as to what forebodes for the future. One is often asked in the initial telephone consultation as to whether a case is “viable” or of ascribing with reasonable accuracy the percentage chances in winning a Federal or Postal Disability Retirement case with the U.S. Office of Personnel Management. But in the very question is presupposed the implicit answer, and the unavoidable starkness of truth — again, no more and no less obvious, than the changing colors of the praying mantis: What choice does one have? You can either: stay the course; resign and walk away with nothing; or file for Federal or Postal Disability Retirement benefits through the U.S. Office of Personnel Management.
There are stories aplenty about abusing the misusing “the system”; and in the crass world of media outlets which fail to make the differentiating distinctions which make for the bifurcation between truth and falsity, the “disability” claims which are most prevalently and prominently featured have to do with Social Security Disability claims, and not with Federal employees and U.S. Postal workers who file for Federal Disability Retirement benefits through FERS.
What does it take to get your application approved?
FERS Disability Retirement is merely one component of an employment package which every Federal and Postal employee, signed on to when he or she became a Federal employee or U.S. Postal Worker. It requires, by a preponderance of the evidence, a showing that (A) The Federal or Postal Worker who is under FERS has a minimum eligibility-satisfied requirement of 18 months of Federal/Postal Service (or if under CSRS, 5 years, which is presumably met); (B) that he or she has a medical condition such that the medical condition prevents one from performing one or more of the essential elements of one’s job while in Federal or USPS Service; and (C) that no reassignment at the same pay or grade can be found, or alternatively, that the medical condition cannot be reasonably accommodated such that the Federal employee or the U.S. Postal worker can continue to perform all of the essential elements of one’s job. As to the medical condition itself, a “built-in” safety hatch exists which generally precludes abusive filings in FERS & CSRS Federal Disability Retirement cases, as opposed to SSDI: the necessary medical reports and records must, in most cases, come from a treating doctor of reasonable duration, and single-purpose disability determinations are taken into consideration with skepticism (excepted examples: a Functional Capacity Evaluation, a Neuropsychological test, and similar specialty-based studies).
Remember: OPM Disability Retirement is a benefit you’ve already paid for
Filing for a benefit which is merely a part of one’s employment package can hardly constitute or be considered an “abuse of the system”; rather, it is the accessing of a promise made, a word kept, and an administrative process proven when the coalescence of facts, circumstances, and life’s changes require the bureaucratic mandates of filing. Never has the undersigned author encountered a Federal or Postal worker who “wanted” to file for Federal/Postal Disability Retirement benefits; rather, with great reluctance, it is life’s unexpected and unexplainable changes which have resulted in the necessity of filing for Federal Disability Retirement benefits, whether the Federal employee or the U.S. Postal worker is under FERS, CSRS or CSRS Offset.
In recent times, there has been a major cultural shift in how people, circumstances and the fate of individuals have been described, excoriated and represented in media outlets and public venues; of life’s cyclical karmic characteristic of a lottery and the unfairness of wealth distribution; and the magnum opus of societal disparity: those who access “the system”, as opposed to those who must pay for it.
But in the end, a society must be judged by how it treats its most vulnerable citizenry, and in keeping the word of its social contract. Federal Disability Retirement is a benefit accorded to all Federal and Postal employees through the law and a promise upon legislative cogency: Recognizing that the important work of a Federal employee or a U.S. Postal worker can only tolerate a certain level of saturation of stress, repetitive physical repercussions, or the combination of cognitive and physical pain, the Federal Government has conceded that a disability annuity is appropriate where the manifestation of a medical condition impacts one’s ability to perform the essential elements of one’s job, and where no reasonable accommodations are possible, or where reassignment to another position at the same pay or grade cannot be offered; this is thus a response to an expectation that one of life’s changes should be addressed, if and when needed.
The time to make a life decision
And like the praying mantis whose colors may metamorphose as the season brings on a foreboding of mortality; so the Federal employee or the U.S. Postal worker who suffers from a medical condition, such that the medical condition prevents one from performing one or more of the essential elements of one’s job, must make choices and reflect the unexpected vicissitudes of life’s changes, whether wanted, desired, or never intended. For, as fate is merely the autumn of a lifetime of summer’s end, so the disabled Federal or injured Postal employee who sees the writing on the wall by reflecting upon the impact of one’s medical condition upon the capacity to continue in the Federal or Postal position, Federal and Postal Disability Retirement through the U.S. Office of Personnel Management must be a consideration of reflecting upon life’s inevitable changes, as the praying mantis neither prays for the fate of change, but merely appears to do so, in our anthropomorphic way of thinking and believing.
Robert R. McGill is an attorney who specializes in Federal Medical 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 Lawyer website.
Do I have to file for Social Security Disability Income (SSDI)?
Filing for Social Security Disability benefits is “required” when filing for Federal Disability Retirement benefits under FERS. This additional step, however, has always been somewhat confusing and problematic. Why does the Federal or Postal employee who is filing for Federal Disability Retirement benefits have to file for SSDI, anyway? What are the consequences of being denied (which most Federal and Postal employees are, anyway)? What happens if the Federal or Postal employee who is filing for FERS Disability Retirement benefits becomes approved for SSDI?
The process of filing a Federal Disability Retirement application is fraught with major obstacles, confusing administrative procedures and complex, almost unintelligible roadblocks – not least of which is the requirement to file for Social Security Disability benefits with the U.S. Social Security Administration. Most Federal Agency Human Resource Offices will tell you that you “must” file for Social Security benefits before applying for FERS Disability Retirement benefits, as if such a step is a prerequisite for even a preliminary consideration of a Federal Disability Retirement application. Indeed, most Federal Agency H.R. Offices, and even the U.S.P.S. Shared Services Office in Greensboro, North Carolina, will not process a Federal Disability Retirement application unless there is some evidence that an SSDI application has been filed. Is this truly what the law requires? And, more importantly, how far does one have to go in meeting the requirement – merely a cursory effort to satisfy the formality, or must one wait until all appeals are exhausted (which, for SSDI procedures, could potentially take years, by which time the 1-year statute of limitations to file for Federal Disability Retirement benefits may have lapsed)?
FERS Disability Retirement and SSDI Offset
The plain fact is that the U.S. Office of Personnel Management doesn’t care a twit about Social Security Disability Insurance – unless it is approved, and that, only if the FERS Disability Retirement application is also approved. For, if both are approved (FERS Disability Retirement & SSDI benefits), then the law requires an offset between the two – 100% offset in the first year of concurrent payments (where the FERS annuitant would receive 60% of the average of one’s highest 3 consecutive years of service), then a 60% offset during the subsequent concurrent years of payments (where the FERS annuity is paid at 40%). It is the offset itself which OPM is concerned about, and since Social Security payments are primary (meaning that the SSDI payments are paid in full) while the FERS Disability Annuity is “secondary” (where the offset occurs by reducing the amount of the FERS Disability Annuity by the percentage of legally-mandated offset required), OPM is concerned that an approval of SSDI benefits will therefore impact the amount of annuity payments calculated by OPM’s disability retirement payments.
How does the interactive process work – between filing for a FERS Disability Retirement and Social Security Disability Insurance? Here is an example:
A Federal or Postal worker starts to prepare filing for a Federal Disability Retirement application, and begins completing the SF 3107 series of forms, as well as the SF 3112 series. As part of the process, he or she is told that one must apply for Social Security Disability Insurance, and attach proof of such filing along with the other Standard Forms for a Federal Disability Retirement application. He does so – files, knowing that it will be denied, especially since he is technically still “employed” by the Federal agency or the Postal Service. He asks himself, “Why do I need to file”? The reason: That is the law, and whether the law makes sense or not, it is a requirement. The FERS retirement paradigm has always been based upon a 3-pegged financial system: The Federal Retirement; Social Security; the TSP (Thrift Savings Plan). When one is accessed (the retirement itself), then the other component (Social Security) must also be applied for. Having filed, the requirement is satisfied. Questions: Do you need to do anything more? Can you just not put much effort into it? If the SSDI filing is denied, must you appeal it? The answers: No, yes and no. Postscript: Once you receive an approval for your Federal Disability Retirement application, will you have to file again when you are no longer employed? Not necessarily; however, if OPM asks you to re-file, then you should go ahead and file with the SSDI Office once again. What are some of the factors to consider as to how aggressively you may want to pursue Social Security Disability benefits when concurrently filing for Federal Disability Retirement benefits? Here are some factors to consider:
First, as stated earlier and reiterated again, understand that there is an offset between FERS Disability Retirement annuity and Social Security Disability Insurance benefits – a 100% offset in the first year of concurrent benefits with a FERS annuity at the 60% rate; then, a 60% offset during all subsequent years (until recalculation at age 62) while FERS benefits are paid at the 40% rate. Since Social Security is “primary”, the offsetting reduction is applied to as against the FERS Disability annuity. However, Social Security has a very low threshold of capacity to earn any income before you “lose” it (normally somewhere in the range of $1200 – $1300 per month), and so if the FERS Disability Annuitant plans on working at some private sector job making more than the threshold amount, it may not be worthwhile to even pursue Social Security Disability benefits aggressively. Contrast the low threshold under SSDI against the allowable amount for a FERS Disability Annuity: You are allowed to make up to 80% of what your former position currently pays.
An example of the FERS-SSDI offset calculation
Thus, by way of example: Hypothetical Annuitant A: A former Postal worker made $55,000.00 per year (and, for purposes of making this example simple, the same amount for the average of his highest-3 consecutive years of service.) Thus, in the first year, he receives $33,000 as his FERS annuity (60% of $55,000), and in the second year, $22,000 as his FERS annuity (40% of $55,000). Rounding off the numbers to simplify, let’s say that it comes to around $3,000 per month for the first year, then $2,000 per month for the subsequent years. The former Postal worker also gets SSDI approved, and the amount comes to $2,000 per month.
How does the offset work? Well, as SSDI is “primary”, the Postal worker would receive $2,000 from Social Security the first year, and $1,000 from his FERS annuity (as 100% of the SSDI payment is offset against the FERS payment), and in the second and subsequent years, he would receive $2,000 from Social Security and $800.00 from FERS (as 60% of the SSDI payment is offset against the FERS payment). If Annuitant A works at a private-sector job and makes $1,000 per month, all well and good – for, that amount would not exceed the threshold for either the FERS Disability Retirement annuity nor the SSDI allowable amount. If, however, he goes out and makes $2,000 per month, or some higher amount that violates the allowable threshold for Social Security, then he will lose the SSDI benefit, and any prior offset with FERS will be recalculated to allow for the full annuity.
Should I pursue Social Security disability benefits?
Thus, the factors that one should consider when pursuing Social Security Disability concurrent with a FERS Disability Retirement application, should take into account the following questions:
Will I be working at a private sector job, and if so, how soon after I begin receiving a FERS Disability Retirement annuity, and approximately how much will I expect to be making?
While the combination of FERS Disability Annuity and the SSDI payments will net me more, will it be worthwhile if I go out and get a job that exceeds the Social Security threshold of acceptable limits? For, as a practical matter, while the offset against a FERS annuity payment is supposed to be recalculated by OPM if the SSDI benefit is lost, the reality is that OPM is a large and rather unresponsive bureaucracy, so that getting the full benefit back will often take up a great amount of time – several months, at least.
Do I expect to work at a private sector job that will make pursuing SSDI impractical, and therefore should I put in the minimum effort necessary to simply comply with the requirement of filing for SSDI?
Be careful…
These are some considerations that should be thought through during the initial stage of the process. In theory, getting approved for SSDI and getting both the FERS annuity, as well as the SSDI benefit – even with the offset – would seem to be a “no brainer” given that the combination of both will almost always net you more money. However, a caveat on what has been occurring more and more is in place. The “Offset” between the FERS Federal Disability Retirement annuity and SSDI payments is supposed to happen automatically.
One would think that, in this computer-age of technological advancement, cross-checking based upon Social Security numbers and other identifying factors would be fairly commonplace and automatic. Think again.
Many hundreds, if not thousands, of Federal and Postal Federal Disability Retirement annuitants receive notification years later of an “overpayment” that must be repaid and reimbursed – amounting to, in some cases, in the hundreds of thousands of dollars. How and why does this occur? Quite simply, because the two agencies – OPM and the Social Security Administration – never communicated with each other, never cross-checked the payments, and most importantly, never offset the required amount. Thus, the Federal or Postal worker who was approved both for FERS Disability Retirement benefits, as well as SSDI, received two “full” checks, and continued to deposit both and spend both amounts.
Now, some would say: Well, yes, repaying the government is only fair – you should have known that the offset wasn’t happening, and you should have “set aside” the amount of the offset knowing that you would one day be “caught” accepting both. Without making a judgmental comment on such a perspective, the reality is that, whether the Federal or Postal dual-annuitant knew, didn’t know, didn’t think he or she would be “caught” or be forced to repay the amount of the overpayment, the simple fact of the matter is that overpayment based upon the incompetence of the Federal bureaucracy occurs all too often, and because the funds from a FERS Disability Retirement comes from the U.S. Government, when the oversight of overpayment is caught, the best you can do is to negotiate the most advantageous repayment plan possible.
Finally, a closing thought on the case of Stephenson v. OPM – a major case won by this author, argued before the U.S. Court of Appeals for the Federal Circuit, decided on January 18, 2013. In that case, OPM had steadfastly refused to restore the full amount of a FERS Disability Retirement annuity despite the loss of the offsetting SSDI benefits, arguing that there was a period where the annuitant remained “entitled” to SSDI benefits despite not actually receiving any money from the Social Security Administration. OPM refused to recalculate and restore the FERS Disability annuity amount and continued to offset a phantom payment merely because a person was still hypothetically “entitled” to the amount. That issue is now resolved because of the decision in Stephenson v. OPM, but a caveat concerning offsets is in order, here.
Theoretically and legally, one can get approved by SSDI, work, earn an amount that exceeds the SSDI threshold, then request that OPM restore the previously offset amount and recalculate so that the full FERS Disability annuity is received. However, as a practical matter, OPM is a large and cumbersome bureaucracy that takes forever to respond. Just keep that in mind. Thus, with any and all issues concerning SSDI, offsets and FERS Disability Retirement, keep the following close to heart: You may be “right”, but it may take a long, long time to recover – whether on the issue of restoration and recalculation of a lost benefit; whether it concerns overpayment; or any other issue concerning SSDI, FERS Disability Retirement annuity and the interacting, offsetting features between the two. Thus, as with everything else, plan accordingly.
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 Attorney website.
