20 Top Questions and Answers about OPM Disability Retirement

OPM Disability Retirement: SF 3112A

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

U.S. Office of Personnel Management (OPM)
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” Requirement?

Regular v. Disability Retirement from OPM
Regular v. Disability Retirement from OPM

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

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

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

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

OWCP Disability claims
OWCP Disability claims

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

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

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

How hard is to get Federal Employee OPM Disability Retirement?

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

Brain inflammation in Federal employees
Brain inflammation in Federal employees

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

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

Who approves or denies the Federal Disability Retirement application?

OPM and the 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?

Light duty is not “legal” accommodation
Light duty is not “legal” accommodation

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

What will happen when I turn 62 years old?

OPM Disability Retirement at age 62
OPM Disability Retirement at age 62

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

How long does a FERS Disability Retirement benefit last?

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

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

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

VA Disability Retirement
VA Disability Retirement

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

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

The Department of Labor, Office of Workers' Compensation Programs (DOL/OWCP)
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.  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.  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
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)
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?

Federal Employee Health Benefits (FEHB)
Federal Employee Health Benefits (FEHB)

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

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

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

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