Disability Retirement for Federal Government Employees: Different Pockets

There is often a confusion over different pockets and their intersecting relations — of SSDI (Social Security Disability Insurance with the Social Security Administration); OWCP administered under the Federal Employees’ Compensation Act (OWCP/FECA); Federal Disability Retirement under FERS or CSRS, as approved or denied by the U.S. Office of Personnel Management; and, in addition, there are those who are eligible for VA Disability benefits, for a Scheduled Award from OWCP, and complications which can occur with private disability insurance policies.

The general rule with respect to each can be summarized as follows:  Offset between FERS & SSDI (100% the first year, 60% every year thereafter); one can get approved concurrently for OWCP/FECA, but the Federal or Postal employee must choose to receive from one or the other, and not both; the Federal or Postal employee can receive a scheduled award while at the same time receiving a FERS Disability Retirement annuity, because a Scheduled Award is considered compensation for a rated injury, as opposed to continuation of one’s pay; there is no offset between FERS or CSRS Disability Retirement benefits and VA Disability benefits; private disability policies depend upon the contractual language of the policy itself, and must be reviewed individually as to any provisions of offset or dollar-for-dollar reduction of benefits based upon receipt of any other benefit.

These are the general criteria concerning the intersecting impact of each upon the other.  In the end, reaching into different pockets will normally result in an increase, and rarely (if ever) a decrease of benefits, even with offsets.  However, overreaching, as the case may be, can result in unintended consequences of overpayment and required repayment.  Be aware and informed.

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

Disability Retirement for Federal Government Employees: FERS & SSDI Offset

This information has been concurrently posted on the “forum” concerning FERS & CSRS Disability Retirement, because it is a pending issue which may impact many (former) Federal and Postal employees who are receiving both FERS Disability Retirement benefits as well as SSDI, and impacted by the offset between the two.  

Under FERS, you must file for Social Security Disability benefits.  However, everyone should be aware of two basic (potential) problems:  (1)  There is a much lower “cap” under SSDI as to what one can earn in income and (2) There is an offset between FERS Disability annuity and SSDI (100% the first year, 60% every year thereafter).  Further, as SSDI has a higher and more restrictive standard of proof (generally, one of “total disability” as opposed to being disabled from being able to perform all of the essential elements of one’s job), most Federal and Postal employees will not qualify for SSDI, and so it is not an issue.  

However, every Federal and Postal employee should be aware of the following:  If a Federal or Postal employee becomes qualified for both SSDI and FERS Disability retirement, and receives the joint annuities from both sources, and if at a later time he/she exceeds the income cap as set by SSDI and loses the SSDI benefit, one would presume/assume that since the source of the offset is lost, that OPM would reinstate the full FERS Disability annuity amount.  Not so.  There is a legal distinction being made by OPM between being “eligible” and being “entitled”, and the fact that one is no longer “eligible” does not mean that one is not “entitled”, and therefore no reinstatement of the full annuity is made.  

A couple of cases are presently be appealed to the 3-Judge panel at the MSPB, and a decision is forthcoming any day.  If favorable, good for everyone.  If not, then an appeal to the U.S. Court of Appeals for the Federal Circuit will be entertained.

Knowing what the law says is the key to proper preparation in any event, and regardless of what the outcome of the case will/may be, knowing the law will allow for all recipients of a FERS Disability Retirement annuity to adequately prepare and to act accordingly.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Erroneous Information and Its Impact

A number of recent telephone calls clearly reveal that the abundance of erroneous information “out there” or disseminated by Union officials, Human Resource personnel, agency personnel, supervisors, coworkers, etc., continues unabated.  Ultimately, of course, the responsibility for acting upon information gathered — erroneous or not — is placed upon the individual who seeks out such information.  

The problem, as always, is that reliance upon erroneous information can result in irreversible consequences.  For example:  In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS is exempted from this particular “requirement”), must one receive a denial from the Social Security Administration before one can file a Federal Disability Retirement application under FERS or CSRS?  Must a Federal or Postal employee be separated from Federal Service for at least 6 months before filing for SSDI benefits?  Must SSDI be approved by the Social Security Administration prior to filing for Federal Disability Retirement benefits under FERS?  The common thread and answer to all three of the questions posed:  No.  

The consequences of relying upon a “yes” answer, or information which either explicitly or implicitly implies that there is a precondition requirement of filing for SSDI before the Office of Personnel Management will accept and consider a Federal Disability Retirement application under FERS?  Delaying of preparing and filing for FERS Disability Retirement until a week before the 1-year Statute of Limitations was about the expire.  

The fact is that the Office of Personnel Management doesn’t much care about whether or not a FERS Federal Disability Retirement applicant filed for SSDI or not, until the time of approval of a Federal Disability Retirement application.  For, the only issue between FERS Disability Retirement and SSDI is a monetary one — whether an offset will occur between the two sources of annuities.

One other point:  When a caller argues, stating:  “But that’s not what X said…”  You can believe whomever you wish; just check out the source, consider the reliability of the source, and determine the consequences of such reliance.

Sincerely,

Robert R. McGill, Esquire