Robert R. McGill - All Lawyers ORG

December 21, 2022December 21, 2022

5 Foundations in Preparing an Effective FERS Disability Retirement Application

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

About the Author

Robert R. McGill, Esquire is a FERS Medical Retirement Attorney who specializes exclusively in fighting for Federal and Postal employees to obtain Federal Disability Retirement benefits. He has been in private practice advocating on behalf of Federal employees for over 30 years.

Note: This article was originally published in Avvo.com.
Photo credit Scyther5 from iStock.

March 15, 2021February 15, 2022

Federal Disability Retirement: A Paradigm for the Future

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.

Sincerely,

Robert R. McGill
FERS Disability Attorney

About the Author

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)

June 1, 2020November 3, 2021

The Covid-19 Nexus in a Federal Employee Disability Retirement Claim

Covid-19 and Federal Disability Retirement

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.

About the Author

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)

May 14, 2020April 27, 2022

Postal Employees with Disabilities

Dog attacking Postal employee — 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.

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.

October 11, 2019October 11, 2019

FERS Disability Retirement: Understanding the Legal Standard Will Help You Win Your Case

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.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

Original post date: 03/12/2012. Last Updated October 11, 2019.

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 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.

July 23, 2019December 29, 2021

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

April 30, 2019December 20, 2021

Federal & Postal Disability Retirement: A Reflection of Life’s Changes

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.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Attorney

About the Author

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.

March 5, 2019August 19, 2022

Some Thoughts on Social Security and FERS Disability Retirement

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.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Attorney

About the Author

February 12, 2019June 8, 2022

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

February 11, 2019August 19, 2022

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.

Federal Disability Retirement and Regular Retirement

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.

You may still work somewhere else

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.

The minimum eligibility requirements

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.

Your disability does not have to be job-related

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.

Separation from Federal service

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“.

Seeking help from Bruner

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.

You already had Federal Disability Retirement Insurance all this time

Like life insurance and health insurance (you will still be able to maintain your health or medical 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
Federal Disability Attorney

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