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

Disability Retirement for Federal Workers: What If…

In inquiring about Federal Disability Retirement benefits under FERS or CSRS from the Office of Personnel Management, the potential applicant who is inquiring about the entire process will often engage in the never-ending, perpetual game of, “What if…”  

The answer to each such question, of course, must always be prefaced with, “Even if…” but each such question and answer can continue ad infinitum until either the questioner comes to exhaust the repertoire of his or her “What if” questions, or the answer to the last what-if question is answered with, “Even if the world ends”.  

This last answer means that it does not matter what comes after the preface; the answer remains the same.  For instance:  What if Social Security approves your case prior to OPM making a decision on a Federal Disability Retirement case — and the medical officer, EAP counselor, Postal or Federal Fitness for Duty physician, or the flight surgeon, or X, Y and Z disqualifies you from your job, and you get separated from service for your medical inability to perform your job…doesn’t that automatically qualify you for Federal Disability Retirement benefits?  No — you must still prove your case by a preponderance of the evidence, and proceed as if none of the previously-cited advantages have been obtained.  

Will all of those advantages help in your case?  Yes.  Will they be determinative?  No.  

While persuasive, such administrative decisions by the agency will not be determinative.  But that doesn’t seem logical — what if, in addition to all of the previous advantages, the Agency comes out and concedes that they cannot accommodate you?  Answer:  Even if the Agency concedes that, you must still prove your case medically, by a preponderance of the evidence.  The Federal or Postal worker:  But What if…   At this point, the answer must be:  Even if the world ends, such administrative agency actions are merely persuasive to OPM, but not determinative.  But why?  

Ah…the “why” question is also a never-ending, perpetual one, and must be saved for another blog.

Sincerely,

Robert R. McGill, Esquire