OPM FERS/CSRS Disability Retirement: Part-time Work

Federal and Postal employees who are contemplating filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, whether under FERS or CSRS, face a formidable task both in terms of legal hurdles and administrative, bureaucratic glitches — not the least of which is in facing the daily battle with the medical condition itself.

Aside from requesting an accommodation from the agency, then being granted some cosmetic work refinements which probably do not constitute a legally viable (or even practically defensible) responsiveness; or of being offered an alternative part-time position which, if taken, will have dire calculation consequences in determining the average of one’s highest-3 consecutive years of service for annuity computation purposes; or more to the point — remaining in the full-time position but working only part-time and taking LWOP the remainder of the time, such decisions can be pragmatic ones which may be arrived at by the Federal Disability Retirement applicant as merely a choice which cannot be avoided, but one which should be embraced with full knowledge of the consequences.

For example, the problem with working one day a week is that such work constitutes only 20% of pay for the Federal or Postal employee who has filed for Federal Disability Retirement benefits.  Yet, at the time of an approval of a Federal Disability Retirement application by the U.S. Office of Personnel Management, OPM will pay back-pay for the first year of annuity, at 60%.  But if one has been working part-time during the entire process, no back-pay will be forthcoming precisely because such back-pay is paid only to the “last day of pay” — which would have been the previous week for that part-timer.

Further, the difference between what was part-time work-paid (20%) and what Federal Disability Retirement back-pay will give (60% for the first year) is one of 40% lost forever.

In practical terms, it may well be that working part-time throughout the Federal Disability Retirement process and the long bureaucratic wait was a necessity which could not be avoided; but it is nevertheless something which should be done with full disclosure and knowledge, so that there are no surprises in the end.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Continuation of Work

There is often the question of whether, during the process of submitting a Federal Disability Retirement application with the U.S. Office of Personnel Management, can/should one continue to work, and will such a status reflect negatively or adversely upon one’s Federal Disability Retirement application?

The question is a logical one, stemming from the seemingly self-contradictory nature of the dual assertion — one which is explicit (the Federal Disability Retirement application itself, where the Federal or Postal employee asserts that he or she can no longer perform one or more of the essential elements of one’s job), and the other which is implied (by continuing to work, does not one undermine the previous assertion?).

What complicates, confuses and muddles the issue further is the fact that, for FERS employees, the Federal Disability Retirement applicant must also file for Social Security Disability benefits (SSDI), and in order to do so, the requirement of being in a non-working status in order to qualify, only further confounds the issue.

But careful analysis will reveal that such apparent contradictions are merely superficial ones.  Hint:  Federal Disability Retirement merely requires a legal standard whereby one cannot perform all of the essential elements of one’s job; continuation in one’s employment capacity does not necessarily mean that one can perform all of the essential elements of one’s positional duties; rather, it means merely that there are certain elements which cannot be performed.

Further, with respect to the intersecting issue of SSDI, there is a distinction to be made between qualifying and filing.  Life’s contradictions are often merely surface-intersections between technical word-games.  Once the verbiage confusion is resolved, the conflict itself dissolves.

It is sort of like the difference between reading about a man falling off of a cliff, and actually being a tourist at the Grand Canyon and being the subject of a news story the next day.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: Working while Waiting

During the process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, whether under FERS or CSRS, the question is sometimes asked as to whether a Federal or Postal employee who is filing, or has filed, can either (a) continue to work in the Federal or Postal job he or she is occupying, or (b) work at another, private-sector job, during the process.

Because Federal Disability Retirement is not a disability annuity based upon “total disability” (unlike Social Security Disability), but in fact encourages Federal and Postal workers to remain productive in the workforce, the fact of continuation of work during the process should not generally have an impact upon a decision rendered by the Office of Personnel Management.

The key, operative word, of course, is “should”.  The Office of Personnel Management will sometimes bring the issue up, and make certain assumptions — as to the similarity between positional duties of one’s Federal/Postal position and the private sector job, or that the Federal Agency or the U.S. Postal Service has “accommodated” the Federal or Postal worker, and therefore that is the reason why continuation in the position has been possible.

Such assumptions obviously need to be addressed, but they are often based upon a presumption founded in error — for, “light duty” or “temporary” duties do not constitute a legally viable “accommodation”, but that is something which OPM has a difficult time understanding.  The fact that the Federal Agency which makes the legal determination on the viability of a Federal Disability Retirement application, has a lack of understanding of “the law” governing the legal criteria, is rather astounding, but true.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: Working While Waiting

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, often the question is asked by the Federal or Postal employee as to whether one can continue to work while waiting for the process to unfold.

Working is what the Federal or Postal employee who is submitting the application for Federal Disability Retirement benefits, knows best. “Waiting” is an anomaly and a period of mercurial frustration because of the level and extent of inactivity and seeming lack of progress or productivity. Yet, it is the latter which must be endured during the process of allowing the bureaucratic maze to unfold, and it is often helpful if the agency will allow for the former.

Not all agencies are equal, however, and while some agencies will allow for an indefinite period of working and performing light duty, other agencies will place the Federal employee on Sick Leave, Annual Leave, LWOP, etc.

The fact that the Federal or Postal employee cannot work, or is not allowed to work, during the process of waiting for a decision from the Office of Personnel Management while having one’s Federal Disability Retirement application reviewed, is often dependent upon various factors: first and foremost, the medical condition of the Federal or Postal employee and the impact of the medical condition upon one’s ability and inability to perform the essential elements of one’s job; the ability of the Agency to “accommodate” the Federal or Postal employee during the process of waiting for a decision from the Office of Personnel Management (using the term “accommodation” loosely, in this context); whether there are safety concerns within the agency or the U.S. Postal Service; whether there are specific regulations which control the ability of the agency to allow for light duty work during the process; and multiple other factors which may come into play when a Federal or Postal employee has filed for Federal Disability Retirement benefits under FERS or CSRS.

Ultimately, the frustration of waiting can be somewhat alleviated by a sense of productivity. However, the only option open to the injured/disabled Federal or Postal employee is not necessarily to wait idly while the Office of Personnel Management is reviewing a Federal Disability Retirement application under FERS or CSRS; there is always the option of seeking alternate employment in the private sector, or attending to chores or other needed opportunities during the meantime.

A positive outlook while waiting is the best course of action. If you were given a block of time — say, 6 months — what would you do with it? Productivity, value and worth are not defined only by work; waiting is not merely the act of being idle; and the primary and most important job of the Federal or Postal worker who is filing for Federal Disability Retirement benefits under FERS or CSRS is to recuperate from the medical condition which is preventing one from attaining that worth, value and productivity which is impacting him or her in the first place.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The 80% Rule and Other Considerations

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is always the future which one must plan for — the short-term future of obtaining Federal Disability Retirement benefits from the Office of Personnel Management; the intermediate future of adjusting to the monetary reduction; the longer-term future of planning for another career, to supplement the income from one’s Federal Disability Retirement annuity.

As to the last factor, the “80%” rule must always be adhered to — that while FERS & CSRS Disability Retirement allows for a person to work in the private sector and make up to 80% of what one’s former position currently pays, the greater question often involves:  Doing what?  Federal and Postal workers who have worked in the Federal Sector have done so to perfect all of the skills and knowledge for a particular career path.  As such, as with most individuals, to become “disabled” from being able to perform one or more of the essential elements of one’s job is devastating not only financially, but moreover, the impact is upon one’s “life work” in so many other ways — upon one’s identity, which is bundled up so intimately in one’s career and work.

Can an injured or partially disabled Federal Employee who has been approved for Federal Disability Retirement benefits under FERS or CSRS go out and obtain a State, County or City job, or one in the private sector, which is similar to one’s former Federal job?  The general answer is “yes” — so long as one adheres to the 80% rule, and so long as the “essential elements” which you could not do, are not required in the new job.  The trick is to differentiate and justify the distinction, and such differentiation and justification can involve both medical and legal issues which should be addressed prior to acceptance of the new non-Federal job.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Future Reviews

I have had a number of inquiries concerning events which may or may not occur post-approval of a Federal Disability Retirement application, including a Medical Questionnaire or the extent to which Federal authorities may inspect or otherwise monitor a Federal Disability Retirement annuitant.  

First, let me state the obvious:  one should never engage in fraud.  That being said, remember that the benefit of a Federal Disability Retirement annuity under FERS or CSRS overtly encourages that one should remain productive and engaged in the workforce.  Disability Retirement under FERS & CSRS is designed to compensate an individual because of a specific disability from a specific type of job.  It pays less than other forms of compensation (i.e., Worker’s Comp) precisely because it encourages you to go out and find another job in another field, one which may be part-time (and therefore would qualify you because you could not perform a similar job on a full-time basis), or one which may utilize a different set of physical requirements; or one which may be “less intense” than your former Federal or Postal work.  

Sensational stories about Federal or Postal workers who have been arrested because of video-taped evidence of engaging in high-impact sports and recreational activities, or of individuals seen performing physical exertions beyond their “stated medical limitations“, almost always involve OWCP/Worker’s Comp violations.  Under OWCP rules, an individual is receiving “temporary total disability” benefits — and the emphasis must be focused upon the middle word — “Total” — as opposed to a FERS or CSRS Federal Disability Retirement annuitant, who is receiving a retirement benefit based upon his or her medical inability to perform one or more of the essential elements of one’s job, and is encouraged and allowed to go out and get another job making up to 80% of what one’s former Federal or Postal Job paid.  There is a vast difference between the two.

Sincerely, Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM May Say So, But…

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.” 

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,
Robert R. McGill, Esquire