OPM Disability Retirement: SSDI, FERS & Persuasive Impact

As part of the process in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one must file for Social Security Disability benefits (SSDI) — if the Federal or Postal worker filing for Federal Disability Retirement benefits is under the FERS programs (CSRS employees are exempted because it is not tied to the Social Security component as part of the retirement system).

A small percentage of cases actually get approved by Social Security prior to a decision being made by the U.S. Office of Personnel Management.  When that happens (and yes, it is fairly rare, if only because most Federal and Postal employees filing for Federal Disability Retirement benefits do so with a recognition that (A) they cannot do a particular kind of job, and (B) with a view towards working at another job, career, vocation, etc., whether part-time or full-time), then the question becomes:  What does one do with an SSDI approval letter?  Trevan v. OPM and subsequent cases, of course, comprise the rule on the matter; but such court cases essentially state that the decision of the Social Security Administration, as well as other Federal entities, are merely persuasive, as opposed to determinative.  But how persuasive?  Persuasive is a relative term.

To an unsuspecting innocent bystander, a person of reprehensible intensions may “persuade” quite easily; to the cynic and man of suspicious nature, “persuasion” may take the full effort of a team of con artists.  For the OPM Case Manager in the OPM Disability, Reconsideration & Appeals division, a decision by the Social Security Administration will take a 3-legged approach to have any impact at all:  (A)  the decision itself, (B) the case-law which makes the Federal Agency’s decision relevant to an OPM Disability Retirement case, and (C) accompanying medical evidence.  And, of course, the 4th component in all of this would be the methodological argumentation by the Applicant or the Federal Disability Attorney who argues effectively the previously-cited 3 components.

Persuasion is a “relative” term — indeed, relatives tend to be more familiar and therefore easily persuaded; strangers to the process need not apply.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Interactions

Preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management, is a necessary step for a Federal or Postal employee who finds that he or she can no longer perform one or more of the essential elements of one’s Federal or Postal job because of a medical condition.  

In doing so, there are obviously potential interactive processes which one must consider.  If the Federal or Postal employee is under FERS, then you must file for SSDI (Social Security Disability benefits), because that is what the law requires.  

Further, one must determine how aggressively, to what extent, and to what end and purpose one needs to file in pursuing SSDI concurrently — for, if one is planning on working at another, separate job while receiving a Federal Disability Retirement annuity, then the cap imposed by SSDI as opposed to the 80% allowance for FERS Disability Retirement without SSDI, needs to be taken into consideration.  Such future planning will then determine the course of one’s actions, as to how hard one will try and obtain SSDI benefits.  

Additionally, if the medical condition arose from a work-related injury, then obviously filing a claim concurrently with the Department of Labor, Office of Workers Compensation under FECA should be contemplated.  

Then, there are those who, whether by accident or wisdom and foresight, obtained and paid for throughout the intervening years, a private disability insurance policy.  Such private disability insurance policies are essentially contracts — and whether there is an offset with Federal Disability Retirement benefits, Social Security, or OWCP depends upon the “fine print” of the contract.  

One minor note as to private disability policies:  The time to read the fine print is when the insurance agent is trying to sell you a policy — not when you need to apply for the benefits.  Private policies can be negotiated, and the terms can be amended.  

Finding a negative consequence after the fact is a costly error in judgment which can easily be mitigated by spending a few moments at the outset.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: SSDI Impact

In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS individuals are exempted for this particular issue), the Federal or Postal employee who is contemplating filing for the benefit must at some point in the process file for Social Security Disability benefits (SSDI).  This is because the law is set up for an off-setting feature between the two “pockets” of benefits — where, in the first year, there is a 100% offset between FERS & SSDI, and a 60% offset every year thereafter.  

In some rare instances, Social Security will approve a person’s disability application before the Office of Personnel Management has approved a FERS Disability Retirement application.  In that instance, one can use the SSDI approval as “persuasive” evidence to the Office of Personnel Management.  It is not determinative evidence, but there are legal arguments to be made which essentially state that, since a person has been found to be “totally disabled” by the Social Security Administration, based upon the same or identical medical evidence and documentation, that the Office of Personnel Management should grant a FERS Disability Retirement application based upon the same or identical medical evidence.  

Is the reverse true?  If a FERS Disability Retirement application is approved, can such an approval be used as evidence — persuasive or determinative — for an SSDI application?  That would be a weaker argument, precisely because OPM Disability Retirement does not make a determination of total disability, but rather, a decision that the Federal or Postal employee cannot perform one or more of the essential elements of one’s particular kind of job.  Moreover, the Social Security Administration might also argue that inasmuch as SSDI does allow for some earned income (about $1,000 per month) from a job, such allowance shows that approval of a FERS Disability Retirement, which recognizes that one is merely disabled from performing one or more of the essential elements of one’s particular kind of job, should not be determinative of a Social Security criteria which requires a higher standard of disability.

Knowing what impact each aspect or element of a process will have upon another is an important step in preparing, formulating and filing a Federal Disability Retirement application. As knowledge is the source of success, utilization of such knowledge is the pathway to an approval in a Federal Disability Retirement application under FERS and CSRS.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: SSDI Approval as a Special Case

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there are multiple discretionary decisions which must be made in preparing a paper presentation to the Office of Personnel Management.  For instance, should determinations made by Second-Opinion or Referee doctors in a case which concurrently involves OWCP issues be included in the submission?  Should VA ratings be part of the packet?  Should determinations by a private disability insurance company be included? Should a determination by the Social Security Administration — which often will come about when the packet has already been submitted to the Office of Personnel Management while awaiting a decision — be forwarded to OPM?  

In proving one’s eligibility for Federal Disability Retirement benefits under FERS or CSRS, one must affirmatively prove, by a preponderance of the evidence, that one is eligible for the benefit.  That leaves much of the decision-making process regarding what information is relevant, helpful, pertinent and substantive, up to the Federal or Postal employee and/or his attorney to decide.  There are multiple details, and it is often in the minutiae and details which will win or lose a case.  Should all medical conditions be made a part of the packet?  

These are all discretionary issues to be decided, with the possible exception of Social Security.  Inasmuch as SSDI must be filed, and inasmuch as the statutory mandate is that SSDI and a FERS Disability Retirement annuity must be offset if both are approved, an approval by SSDI is a special case which is non-discretionary.  Not only must OPM be informed of its approval; under the case-law, it must be considered in the process of deciding upon a Federal Disability Retirement case.  Nevertheless, it still remains merely persuasive authority, and not determinative.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Agency Actions Are Merely Persuasive

Whether it is one’s own agency which acts, or some third-party agency, the effect of such actions upon a Federal Disability Retirement application under FERS or CSRS is merely persuasive, and not determinative, from the viewpoint of the Office of Personnel Management, whether under FERS or CSRS.  

Such actions may include:  Disqualification based upon a medical condition, whether because of the primary, underlying medical condition, or a secondary condition resulting from a prescription medication; determination by the Agency based upon a fitness for duty review; failure to pass certain physical fitness standards; declarative statement by the Agency that no accommodations can be accorded, whether because of one’s medical condition or other influencing factors; a conclusion reached by an Occupational Nurse or doctor; acceptance of a case by OWCP, Department of Labor; approval by the Social Security Administration, the Veterans Administration, etc. — all of these “third party” determinations can be persuasive for a Federal Disability Retirement application, but are not necessarily determinative in coming to a conclusion of approval by the Office of Personnel Management.  

Why “persuasive” as opposed to “determinative”?  Because of two fundamental reasons:  (1)  The Office of Personnel Management is an independent agency, mandated by statute, regulation and case-laws, to make its own determination of eligibility of each Federal Disability Retirement application, separate and apart from any other agency, and (2) such agencies which make such determinations are not medical facilities (although a doctor or nurse may have some involvement in the decision-making process), and this is ultimately a “medical” disability retirement, and not an agency retirement system mandated by law.  

As such, one must still prove by a preponderance of the evidence that one is eligible for Federal Disability Retirement benefits, based upon the nexus between one’s medical conditions and one’s essential elements of the Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Necessity of Filing

Sometimes the question is asked as to whether it is “necessary” to file for Federal Disability Retirement benefits if certain advantages, benefits and comfort levels have already been reached.  

Therein lies the problem, of course:  that when one has secured one benefit which one relies upon and has depended upon, the necessity of filing for a collateral source in order to allow for future options, seems (at times) to be a remote necessity.  But the immediacy of a necessity should never be the primary basis for deciding whether or not to do something; forethought, securing the possibilities for future circumstances, perhaps somewhat unforeseen at the moment, should always be factors in making a decision.  

In general, it is best to allow for as many options to remain open in life, and not allow for an option to close merely because the tolling of the Statute of Limitations has passed.  Thus, if a person is on SSDI or OWCP, the question will often be presented as to whether or not filing for Federal Disability Retirement benefits is necessary.  The unequivocal answer is, “yes”.  

For those on SSDI (already approved), the approval itself from SSDI will have some persuasive authority in getting a FERS Disability Retirement approved.  It will not be determinative, but merely persuasive. Further, while there will be an offset between SSDI and FERS Disability Retirement, there are multiple other factors which should convince a Federal or Postal Worker that filing for FERS Disability Retirement is the intelligent thing to do.  

As for those on OWCP, while one cannot receive both OWCP and FERS or CSRS Disability Retirement benefits concurrently, the Federal or Postal employee can get it approved, and simply leave it in an inactive statute — for, as no one knows what the future holds, it is good to secure multiple benefits for potential future use.  To unnecessarily close out options to the future is never a wise thing to do.

Sincerely,

Robert R. McGill, Esquire

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