Tag: American FERS Disability Retirement benefits

Posted on

Federal Disability Retirement: A Paradigm for the Future

A disabling condition doesn’t have to be job related to qualify
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)

Posted on

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

Covid-19 and Federal Disability Retirement
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)

Posted on

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

 

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.