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 (also known for its acronym “OPM”), 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 that particular 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 personnel 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 Federal Disability 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

 

FERS Disability Retirement for Federal and USPS Workers: SSDI & FERS

It happens quite often.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal and Postal employee must file for Social Security Disability benefits (under FERS; CSRS is exempted because there is no Social Security component under the law).

While many Human Resources offices, as well as the H.R. Shared Services office in Greensboro, N.C. for the Postal Service, will assert to the Federal and Postal employee that they must “wait” until they get a decision from the Social Security Administration, the truth is that the U.S. Office of Personnel Management only needs to see a receipt showing that SSDI was filed, and this can be easily obtained online by simply completing their questionnaire, submitting it, then printing out a receipt.  Moreover, OPM only needs the receipt showing that one has filed, at the time of an approval.

By being misinformed and ill-advised, what often happens is a delay in the entire process — either that the H.R. office of an agency, or for the U.S. Postal Service, delays processing their part of the Federal Disability Retirement application, or the Federal or Postal employee is left with the misinformation and impression that he or she cannot file for Federal Disability Retirement benefits until the Social Security Administration has made a decision.

Then, of course, there are those who believe (wrongly) that they must receive a “final” decision from SSDI — meaning that after the initial denial is issued, and they have appealed the decision, they must await the results of the appeal.  This can take many months, if not years, and by that time, there is the danger that the Statute of Limitations has come and gone for filing for Federal Disability Retirement benefits.

Information is normally a neutral conglomeration of facts and issues, but can be a positive thing; misinformation, by inverse logical definition, would then be a negative thing.  More than that, reliance upon misinformation can lead to real-world consequences — ones which are irreversible.  As such, one must check and double-check the source of information, in order to ensure that reliance results in reliability.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Process Argument and Legal Conclusions

Legal conclusions are extraordinary conceptual constructs:  without knowing the process of how one arrived at the conclusion, lawyers and others can utilize it to their flexible extreme without any contextual regard and argue with it on either side of a fence or, if there are more than two sides to a fence, those as well.

That is why, for instance, in a Federal Disability Retirement case before the Office of Personnel Management, whether under FERS or CSRS, one cannot simply provide the Office of Personnel Management with an approval letter from the Social Security Administration showing that SSDI has been approved.

Such evidence, while in and of itself certainly shows that one is “disabled” from gainful employment — does not “prove” that one is eligible for Federal Disability Retirement benefits under FERS or CSRS.  Why?  One would think that a higher level of disability determination would necessarily constitute a showing of all lesser eligibility criteria, but there can be the rare exception, and it is that rare exception which the law allows for in refusing to accept the legal conclusion as evidence and in place of the “process” evidence.

First, it could be that SSDI was filed for based upon different medical conditions than that filed for in the Federal Disability Retirement application.  Or, it could be that the particular kind of job, with all of its essential elements, from which the Federal or Postal worker is filing for Federal Disability Retirement benefits, is the one rare and exceptional work which can be performed, despite being totally disabled from all other jobs in the universe of employment.  As such, the context and “process” of how one got to Point B from Point A is a necessary component in a Federal Disability Retirement application.

One must still submit the medical evidence which shows that the Federal or Postal employee is disabled from performing one or more of the essential elements of one’s job.  While the conclusion of the journey is important, the process of how one got there is still relevant.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: FERS & SSDI Offset

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS, an additional component must be satisfied (CSRS is exempted):  filing for Social Security Disability benefits.  

In doing so, various factors need to be taken into account:  Whether the Federal or Postal employee intends to work at another job while receiving FERS Disability Retirement annuity; the chances of actually succeeding in applying for SSDI; and further, a future consideration — if one gets approved for SSDI and FERS Disability Retirement, but later is dropped from the Social Security annuity, will the Office of Personnel Management recalculate the FERS Disability Annuity?  

This is a question which has been appeal to the Full Board of the Merit Systems Protection Board, and thus far, the Full Board has ruled in favor of OPM, that OPM’s interpretation of the statutes, rules and laws governing SSDI/FERS Disability Retirement offset is “reasonable”, where loss of entitlement to the former does not require recalculation despite the fact that the former Federal or Postal employee no longer receives Social Security Disability benefits.  

An appeal is likely to the Federal Circuit Court of Appeals.  The bright spot is that there was a dissenting opinion by one of the Board Members.

Fortunately, most people do not qualify for SSDI, anyway, and so it does not widely impact most Federal or Postal employees who file for Federal Disability Retirement benefits under FERS.  Information and updates to follow.

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 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

Medical Retirement for Federal Workers: SSDI Considerations

In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS is exempted), one must at some point — at the time of approval or anytime prior to — file for Social Security Disability Insurance benefits.  This is because, under the laws governing FERS Disability Retirement and Social Security, there is an offset of 100% between the two benefits in the first year, then a 60% offset between the two benefits every year thereafter.  

Most Federal and Postal employees who are filing for Federal Disability Retirement benefits under FERS will not qualify for Social Security Disability benefits, precisely because Social Security has a higher standard of proof in order to qualify for such benefits.  However, one must nevertheless satisfy the requirement of filing for SSDI.  

For Social Security, one must essentially prove that one is “totally disabled” from performing any and all types of employment, whereas under FERS Disability Retirement eligibility criteria, one must merely show by a preponderance of the evidence that one is no longer able to perform one or more of the essential elements of one’s particular kind of job.  

Despite the difference in eligibility criteria, there are times when a Federal or Postal employee applicant will be deemed to qualify for Social Security Disability benefits, but not for FERS Disability Retirement.  While this may seem odd, this occurs because of the independent nature of each agency.  The Office of Personnel Management makes its determination independent of the Social Security Administration. There is case-law, however, which requires the Office of Personnel Management to take into consideration a Social Security Disability approval, and thus an SSDI approval can have some persuasive impact upon a FERS Disability Retirement application.  

Further, often an SSDI denial letter will specifically state a finding that while they have determined that the Federal or Postal employee fails to qualify for SSDI benefits, they acknowledge that he or she is unable to perform the particular kind of job in which they are currently employed.  Such statements can be used for further persuasive argumentation, but should be used with discretion and care.

As with most agency statements, an argument for its use can “cut both ways”, and one must have the discretionary wisdom to use them as a shield or sword wisely.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Government Employees: FERS & SSDI Filing

At some point in the process of filing for Federal Disability Retirement benefits under FERS (CSRS is exempted from this particular aspect), the Federal or Postal employee must file for Social Security Disability Insurance (SSDI) benefits.  FERS employees are under the Social Security System, and the reason behind the requirement of filing is to see whether or not the Federal or Postal employee will concurrently be eligible for Social Security Disability benefits.  

Most Federal and Postal employees are not eligible for Social Security Disability benefits, because the higher standard of “total disability” does not apply to the Federal or Postal employee who is filing under FERS, which has a lower standard of being unable to, because of a medical condition, perform one or more of the essential elements of one’s job.  

The requirement to file for SSDI under FERS is one which must be satisfied at or prior to the time of an approval by the Office of Personnel Management.  It is not, as many Human Resources Departments of various agencies will erroneously inform you, a precondition to filing for FERS Disability Retirement benefits. The only requirement which must be satisfied is that, at or prior to the time of an approval of a Federal Disability Retirement application issued by the Office of Personnel Management, a receipt showing that one has filed for SSDI benefits must be presented to OPM before OPM will process the approved Federal Disability Retirement benefits under FERS.  This is to ensure that, prior to payments being issued, it has been determined that no offsets with SSDI will be necessary.  

Again, at or time of the approval of a Federal Disability Retirement claim, is the requirement of presenting a receipt showing that a Federal or Postal employee has filed for Social Security Disability benefits.  It is NOT a precondition of filing for Federal Disability Retirement benefits with the Office of Personnel Management.  It does NOT have to be done sequentially — and this is where Agencies misinform Federal and Postal employees.  One does not have to file for, let alone get approved for, Social Security Disability benefits prior to filing for FERS disability retirement.  I don’t know how much clearer I can state this fact.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: Clarifying Misconceptions

Information is interesting.  But not all interesting information is useful.  And, further, not all information, even if interesting and (potentially) useful, is accurate.  Ultimately, in order for information to be of practical use, it must be accurate, useful, and purpose-related.  Thus, when inaccurate (partial or complete) information is placed into the public domain, it often becomes useless, but remains interesting to the extent that people continue to rely upon such information.

In filing for Federal or Postal Disability Retirement benefits under CSRS or FERS, it is important to obtain, process, and apply useful and accurate information.  Two sets of basic information need to be clarified:  First, many Postal and Federal employees have been confused about SSDI and its impact upon Federal Disability Retirement and the application process in preparing, formulating and filing for Federal Disability Retirement benefits under FERS (CSRS exempted because an SSDI receipt is not necessary).  Showing a receipt for having filed an SSDI application is all that is needed.  An approval is not necessary; and, indeed, for most Federal and Postal employees, one will not ordinarily qualify for SSDI precisely because it has a higher standard to be eligible.

Further, a sequential showing is NOT necessary — i.e., one does not have to first file for SSDI in order to file for FERS Disability Retirement benefits.  All that is necessary, from OPM’s perspective, is that at the time of an approval of a Federal or Postal Employee Disability Retirement application under the FERS system, a Federal employee must show a receipt showing that one has filed for SSDI benefits.

The Second informational error to be corrected:  While somewhat redundant based upon the first, a Federal or Postal employee does NOT have to be approved for SSDI in order to file for Federal Disability Retirement benefits under the FERS retirement system.  That would be pointless and illogical, if one stops and thinks about it.  Again, all that is necessary is that one files, and one shows a receipt at the time of an approval of a Federal Disability Retirement application under the FERS system.

Yes, this is the information age; but it still comes down to a human being who places the information into the public domain, and the

Sincerely,

Robert R. McGill, Esquire