FERS disability benefits Archives

February 25, 2021August 27, 2022

20 Top Questions and Answers about OPM Disability Retirement & Federal Disability Retirement

What is the difference between “Federal” Disability Retirement and “OPM” Disability Retirement?

U.S. Office of Personnel Management (OPM)

Although some people may confuse “Federal” Disability Retirement to mean “Social Security” Disability Retirement (SSDR) because this latter benefit is a type of retirement program administered by a U.S. Federal agency, that is, the Social Security Administration (SSA) — nevertheless, most of the time “Federal” Disability Retirement actually refers to “OPM” Disability Retirement. OPM is the acronym which stands for the U.S. Office of Personnel Management, and many Federal lawyers and employees choose to use this term to differentiate it from SSA’s disability program — the Social Security Disability Retirement, which is also known as Social Security Disability Income (SSDI).

Thus, Federal Disability Retirement and OPM Disability Retirement are basically the same disability program. OPM Disability Retirement is a disability retirement plan available to Civilian Federal employees. It allows a Federal employee to retire earlier than “regular” retirement if an injury or medical condition prevents the Federal employee from performing the main work tasks of the Federal position he or she was hired for. These physical or psychiatric medical conditions should be expected to last one year or longer.

What is the difference between “FERS” Disability Retirement and “CSRS” Disability Retirement?

CSRS v. FERS Disability Retirement benefits — CSRS v. FERS Disability Retirements

Federal Employees Retirement System (FERS) and the older Civil Service Retirement System (CSRS) are the names of two sets of U.S. Codes, rules and regulations that together dictate the laws and benefits that Civilian Federal employees will receive in the United States. Military personnel are covered by the VA Disability Retirement program, where “VA” stands for the United States Department of Veterans Affairs.

Both of these types of retirement programs, FERS and CSRS, are also part of the OPM Disability Retirement program (e.g., all FERS Disability Retirement claims are also OPM Disability Retirement cases, but a particular OPM Disability Retirement claim may or may not also be a FERS Disability Retirement case), but basically the difference has to do again with the set of Federal employee laws you were hired under. Almost all Federal employees hired after December 31, 1983 are automatically covered by FERS. Thus, in practice and in most cases, when a Federal Lawyer or a Federal Agency’s Human Resources Specialist talks about FERS Disability Retirement, he or she will typically be talking about OPM Disability Retirement. The term FERS Disability Retirement is thus more specific, but since most Federal employees today are covered under FERS rules, we often use them as synonyms, too.

What is the difference between OPM “Regular” Retirement and OPM “Disability” Retirement?

Regular v. Disability Retirement from OPM

OPM Regular Retirement is when a Federal or Postal employee retires from Federal Service due his or her age and years of Civil service. As noted before, Federal Disability Retirement is a medical-based retirement available for FERS and CSRS employees. However, this medical condition or “disability” does not have to be total disability as it is the case of Social Security Disability Retirement cases.

The medical condition must be expected to last a minimum of a year. The illness or injury should be categorized as “chronic” in the sense that it won’t allow the Federal employee to work very well (technically the medical condition will not allow the employee to perform the basic “essential elements” of the job he or she was hired for by the Federal Agency). From our own experiences, most former Federal employees who are now under disability don’t even consider themselves to be disabled or incapacitated.

Perhaps this is a psychological self-defense mechanism, but it is a fairly accurate simplification that describes the self-image of many Federal disability retirees now happily working in different jobs and even living overseas. There are more technical definitions we can explain here but for now these simple explanations will suffice.

What is the difference between OPM Disability Retirement and Federal Workers Comp?

The Federal Employees’ Compensation Act (FECA) Program is an entirely different program which assists Federal employees and Postal workers who have sustained work-related injuries or diseases by providing them financial and medical benefits and help them to return to work. Federal Workers Compensation benefits are considered to be a short- and medium-term disability program. In other words, “OWCP” benefits (from the Office of Workers’ Compensation Programs within the Department of Labor) are not supposed to be a disability retirement program.

A key difference is that in OPM Disability Retirement, the qualifying medical condition can predate your first day of Federal employment. Under OPM Disability Retirement rules, the qualifying medical condition doesn’t have to be job-related, either. For instance, if you are a Mail Carrier and your eyes get hurt playing golf while vacationing in the Bahamas, and as a result of this accident, you can’t permanently drive your Postal vehicle safely anymore, then even though you will not qualify for OWCP benefits, you may still qualify for OPM Disability Retirement.

Another difference is that while most Federal and Postal employees are usually aware of the existence of Workers Comp or FECA disability benefits, at the same time, many of them have never heard of such a thing as “Federal Disability Retirement benefits”. Many tend to confuse it with Social Security Disability Retirement. Also, even when they are aware of this OPM disability program, they tend to believe that this program is administered by their own Agency or by the U.S. Postal Service. This is not true, either. Federal employees are not at the mercy of their employing Federal agencies.

How hard is to get Federal Employee OPM Disability Retirement?

How hard is to get OPM Disability Retirement? — How difficult is to get OPM Disability Retirement?

This is a very general question, and the answer really depends not only on your specific Federal position (on the basic positional duties of the job you were hired for by your Federal Agency or the U.S. Postal Service), but it also depends upon your particular physical or psychiatric condition and the nature of your medical limitations. Most Federal Disability Retirement Attorneys would argue that the general requirements of OPM Disability Retirement are easier to meet than those of the VA and even the SSA. This is true in almost all medical cases, but a potential difficulty to qualify for OPM Disability Retirement may arise due the fact that most doctors are not readily familiar with the legal criteria necessary to write a useful medical opinion. In fact, all they will usually do is just to fill out forms without knowing what they need to legally prove. In the end, you may end up being considered to be “disabled” — and yet your OPM Disability Retirement application can still be denied.

I only have only “X” years of Federal Service, do I qualify for Federal Disability Retirement?

Number of years needed to qualify for OPM Disability Retirement or Postal Disability Retirement

If you are a CSRS employee, you will need 5 years of creditable Federal Service to qualify for disability Retirement. However, Federal employees covered by the FERS system need only 18 months of Federal service to qualify for OPM Disability Retirement. If you are not sure which retirement system you were hired under, the general rule is that if you were hired after 1983, you are a FERS employee.

In many typical situations, older Federal employees with many years of public service will be able to qualify for either “regular” or “disability” retirement (in that case they should still consult with an OPM Disability Retirement attorney to help them to figure out which one will pay the more). Younger employees who suffer from a medical condition will not always be able to qualify for OPM Disability Retirement for several reasons. In such a case, many Federal agencies will typically behave unethically, hoping that the employee will just quit and leave the Federal Service empty-handed. This happens in many Federal agencies, but the U.S. Postal Service is especially guilty of this type of behavior.

I suffer from a specific medical condition, does this condition necessarily qualify for OPM Disability Retirement?

While there is not an “official” list of OPM qualified medical conditions (as it’s the case of SSA), you will be considered disabled under OPM Disability Retirement rules if your particular physical or psychiatric condition(s) prevent(s) you from continuing to perform efficient service in the Federal Service. So, in theory, it is not so much “what” your medical condition is, but “how” it interferes with the quality of your work performance. Even if you are accommodated but you can’t work efficiently, you may qualify for a Federal Disability retirement pension. That is basically the main idea with the original disability provisions under both FERS and CSRS laws.

Of course, in the “real world”, they would rather let you go empty handed. Therefore, in order to qualify for disability retirement, your treating physician will typically need to be familiarized with FERS and CSRS laws to fill out the proper OPM medical forms to help you to explain to OPM how your current medical condition will make you eligible for OPM Disability Retirement benefits. There are several legal and medical issues your primary health care provider should know to achieve this end. However, just to illustrate an example of a potential problem, if your primary health care provider doesn’t write that your particular physical or psychiatric conditions will be expected to last for at least one year, even if that is very obvious, your medical disability application will likely be defeated and denied.

Who approves or denies the Federal Disability Retirement application?

OPM and the Disability Process — OPM and the Federal Disability Retirement Process

During the first two stages of the Federal Disability Retirement process, the Federal Agency responsible for reviewing your Federal Employee Disability Retirement application will be the U.S. Office of Personnel Management (OPM). If your “OPM” Disability Retirement claim is denied twice by OPM (First at the Initial Stage, then at the 2nd, or Reconsideration Stage), you will then need to file an appeal to the U.S. Merit Systems Protection Board (MSPB). In this Third Stage (the MSPB), OPM will cease to be the reviewer and will instead become the prosecutor. They will try very hard to stand by their decision. At this stage, it is strongly recommended that you hire an experienced Federal Disability Retirement lawyer.

MSPB and the Disability Process — MSPB and the Federal Disability Retirement Process

There are many general practice attorneys and Federal employee “advocates” who will be willing to take your case up to the Third Stage of the Federal Disability Retirement process, also known as the MSPB stage, but in our opinion, it is better to hire an attorney experienced with this type of administrative laws right from the beginning. Unless you have an alternative future source of income (e.g., a golden parachute from a previous executive career in the private sector), you should spend time to prepare your disability retirement application well from Day One. If your application has already been denied twice, winning a disability claim with the MSPB will be a tougher call for several reasons.

At the Third Stage, your opponents will not just be Federal Disability Retirement “clerks” from OPM, but instead, you will be dealing with experienced OPM attorneys. Even if you decide to hire an experienced OPM Disability Retirement attorney to help you with your case at this late stage, he or she will still have a hard time refuting absurd arguments made by OPM’s legal representative, such as: “Oh, but your own medical documentation shows that you told your primary doctor you were feeling just fine on such and such dates”.

Can I get OPM Disability Retirement even if my Federal agency or the Postal Service has accommodated me?

In theory, Yes. This is because, technically, a “legal” accommodation is not the same as a light/limited duty accommodation. In practice, OPM clerks will deliberately ignore this fact; instead, they will argue that any accommodation provided by your Agency will constitute a legal accommodation. They might even argue that by signing the acceptance of a light duty job offer you were clearly stating that you were happily accommodated by your Agency. OPM Disability Retirement Attorneys who deal with these issues all the time should be able to prepare for you a strategy that will preempt this and other types of potential arguments OPM disability clerks and sometimes even OPM lawyers will try to use to defeat your Federal or Postal Disability Retirement application.

What will happen when I turn 62 years old?

Your “medical” retirement will be recalculated to become a “regular” retirement, and your annuity will be adjusted. The good news is that all of the years you were under “disability” retirement will count towards your future regular retirement (in some cases even the years you spent in the military, if it was bought back). For instance, if you worked for 10 years in the Postal Service, and you spend 20 years in Postal Disability Retirement, you will be credited for a total of 30 years for purposes of calculating your future “regular” OPM retirement.

How long does a FERS Disability Retirement benefit last?

OPM Disability and Regular Retirement until death — OPM Disability and Regular Retirement will basically last a lifetime

Your OPM Disability Retirement annuity checks continue to show up on the 1^st of each month in your bank statements until your 62nd birthday. After that date, you will no longer be considered a Federal Disability Retirement pensioner but a regular Federal employee retiree. So, in a way, these benefits will last forever (there are also some family survivor provisions). However, this is assuming that OPM will continue considering you to be “disabled” under their own rules. They will send you periodic medical questionnaires (unless you are also an SSDI recipient, in which case OPM will normally let the good folks at the SSA worry about these disability verification tasks). This is one extra reason why you should always keep up with your doctor’s appointments.

Can I get VA Disability Retirement and OPM Disability Retirement benefits at the same time?

Yes. There is no offset between the two. Veterans are able to receive both VA Disability benefits and FERS Disability Retirement annuity payments without any offsets or penalties for receiving both annuities. In this case, the Veteran can also opt to receive medical care from a VA health care center, Medicare from the SSA, and even a subsidized private FERS health insurance just like regular FERS employees do. Of course, opting out from some of these benefits may save the Veteran from paying premiums for duplicative benefits. It is therefore important that the Veteran understands all options available for purposes of future planning. Some mistakes can cost the retiree hundreds of dollars a month.

Can I get Federal Workers Comp and OPM Disability Retirement at the same time?

The Department of Labor, Office of Workers' Compensation Programs (DOL/OWCP) — The Department of Labor, Office of Workers’ Compensation Programs (DOL/OWCP)

No. Keep in mind that OWCP DOL job-related disability payments are supposed to be temporary benefits only. Thus, what we recommend doing in most cases is to apply for OPM Disability Retirement benefits until OWCP cancels your benefits for good — or until you can no longer take all the harassment from the OWCP specialists and nurses in exchange for more money (OWCP does pay more than OPM Disability Retirement).

If you don’t file for OPM Disability Retirement and your agency officially separates you from Federal Service, you only have one year from the date of separation to file for Federal Disability Retirement benefits. If you fail to file within that timeframe, you will lose your right to file for Federal Disability Retirement benefits forever. This is yet another reason why you should take your OPM Disability Retirement preparation seriously. In this case, if you do qualify for OPM Disability Retirement and later OWCP decides to terminate their benefits, you can then activate your OPM Disability Retirement benefits.

Can I get a personal injury compensation claim with the Federal Government and OPM Disability Retirement at the same time?

Yes. Personal injury compensation payments, more correctly called Scheduled Awards under OWCP, is a lump-sum payment from the Federal Government to Federal employees, and these payments are available for certain injuries or medical conditions which are job-related. These cash awards are paid for injuries to specific body parts, such as an arm or a leg. They can be “scheduled” to be paid monthly for a certain period of time (e.g., two years), or they can be paid all together in an equivalent “lump sum” (most recipients choose the latter option).

Since there is no Statute of Limitations for Scheduled Awards, we recommend focusing your initial efforts on getting OPM Disability Retirement benefits. Once you get your OPM Disability Retirement approved — and in the process you also get back on your feet, financially speaking, it will be in your best interest to try and pursue a Scheduled Award claim, provided that your limb injury was already accepted as a job-related condition by Workers Comp (if not, you’ll need to talk to your doctor to establish the necessary connection). It is better to fight one battle at a time, and where and when you fight each battle is important for the ultimate outcome of the “war”.

Can I file for OPM Disability retirement and sue a Federal Agency for disability discrimination under EEOC rules?

EEOC Disability Discrimination Complaint

Yes. However, in our opinion, EEOC claims are often very hard to prove. There seems to be a perception these days that discrimination occurs with great prevalence in the Federal Workplace, but never to you. Because an injury or illness has real, devastating financial effects on Federal employees, many Federal employees decide to use their limited economic resources on their best shot. Sometimes, you will also be required to find a mediator before any EEOC filing. Each case is, of course, different, but in general EEOC disability discrimination claims can be extremely stressful for Federal employees who are already suffering from one or (more often) several medical conditions.

Can I get OPM Disability Retirement and Social Security Disability Retirement at the same time?

Social Security Disability Insurance (SSDI)

Yes, but there will be an offset or reduction in the FERS annuity (as Social Security is primary, and the offset takes away from the FERS Disability Retirement annuity).

Besides the offset, there are several other considerations to keep in mind if you decide to file for both FERS Disability Retirement and Social Security Disability Insurance (SSDI). Please refer to the article Some Thoughts on Social Security and FERS Disability Retirement for more information.

How is OPM Disability Retirement calculated?

Calculating your OPM Disability Retirement annuity — How much does OPM Disability Retirement pay?

In the first year, your FERS disability retirement annuity will be calculated based upon 60% of your average of your highest-3 consecutive years of service, minus any Social Security Disability Insurance (SSDI) payments you might also be entitled to. After that, your annuity will be calculated using the 40% of your high-3 minus 60 % of your SSDI payment. Of course, if you don’t qualify for SSDI, there will be no subtraction or “offset”. At the age of 62, your disability retirement will become regular retirement with a new computation.

As a FERS Disability Retirement retiree, will I have to pay Federal income taxes?

Yes. OPM Disability Retirement income is taxable in the United States and its territories.

Will I be able to keep my subsidized health and dental insurance?

Yes. However, there might be some slight variations about what insurance companies are available and how much they will charge you. An advantage of receiving a subsidized FERS health insurance is that if you move overseas, some companies like Blue Cross/Blue Shield (no promotion intended) will allow you to use your medical insurance in other countries. This is in contrast to the benefits offered by the SSA in that if you choose to have Medicare, you won’t be able use that form of medical insurance outside the United States and its territories.

Can I work or start my own small business if I receive OPM Disability Retirement?

Yes. This is a case in which Federal Disability Retirement benefits differs with Federal Workers Comp. However, your new job must be outside the Federal Government sector. Also, keep in mind that if your earned income is more than 80% of what your former Federal position currently pays, you can lose your OPM Disability Retirement benefits for the year following the year you exceeded the 80% limit. If this happens, chances are that you will no longer qualify for regular retirement when you turn 62 years old. Thus, be careful with your future earned income. Most forms of “passive” income, however, do not count towards the 80% threshold.

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

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

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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