For those FERS Disability Retirement annuitants who are/were concurrently receiving SSDI benefits, and have gone out to earn more income — there is good news.
In the past, if you exceeded the allowable income-ceiling, you would lose your SSDI benefits because you engaged in substantial gainful activity. With no longer receiving SSDI benefits, the FERS annuitant would go to OPM and request that the Disability Retirement annuity be “recalculated“, because he/she is no longer receiving the SSDI offset amount.
In the past, OPM has consistently (and now, wrongly, it turns out) argued that, because such an individual continues to remain “entitled” to SSDI benefits (even though he/she is not receiving any such benefits), that therefore OPM is not required to recalculate the FERS disability retirement annuity upwards for the benefit of the FERS individual.
The U.S. Court of Appeals for the Federal Circuit just issued the opinion in Stephenson v. OPM, Case #2012-3074, in which they have clearly and unequivocally stated that OPM’s interpretation of the law has been in error. When a FERS disability retirement annuitant loses his or her SSDI benefits for engaging in substantial gainful activity, OPM must recalculate the FERS disability retirement benefit.
I argued the case in early December; the Court issued its precedent-setting opinion in just over a month. This is indeed a major victory for FERS annuitants. You can now take this case and wave it at OPM and demand that your disability retirement annuity be recalculated — in your favor.
Robert R. McGill, Esquire
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