Federal Employee Medical Retirement: Continuation of the Offset Issue

As noted previously, the issue of whether or not OPM needs to recalculate one’s FERS Disability Retirement annuity upon losing one’s SSDI benefits should now be resolved.  

The U.S. Office of Personnel Management has been arguing for years, if not decades, that despite losing SSDI payments because the recipient has engaged in substantial gainful activity, that no recalculation is in order because the annuitant is still technically “entitled” to the benefits.  

The argument which the undersigned writer made before a 3-Judge panel of the U.S. Court of Appeals for the Federal Circuit, however, is the following:  How can one “offset” something with nothing?  As King Lear said to his daughter Cordelia when she refused to shower him with flowery praises of love, “Nothing comes from nothing”.  

Whatever word-games one may engage in, one cannot offset an amount of zero against another amount.  Further, since the FERS (and CSRS) Disability Retirement annuitant is allowed to make up to 80% of what one’s former position pays, it made absolutely no sense to penalize the individual who was receiving SSDI but loses it for making too much money, to not place him/her in the same position as one who never received SSDI.  

Common sense seems to have prevailed.  

The security of knowing that, in filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Courts will actually reverse a nonsensical position of a government agency, is indeed something to smile about.

Sincerely,

Robert R. McGill, Esquire

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

Federal Disability Retirement: Continuing Issues with Collateral Impact

It is sometimes asked whether or not other issues which are concurrently and concomitantly filed can, and to what extent, impact the viability of a Federal Disability Retirement application submitted for approval to the Office of Personnel Management.

In order to comprehend such a question, it is important to view the answer from the various perspective of the parties.  First, from the viewpoint of the Office of Personnel Management — unless they are specifically made aware of such collateral issues — such peripheral “other issues” would have no bearing upon a Federal Disability Retirement application unless it concerned the potential offset questions of Social Security Disability.  

Whether a court filing which concerns a discrimination issue; or an EEOC filing, or perhaps a grievance procedure; all such collateral issues, from the viewpoint of the Office of Personnel Management, would have no relevance.  Then, of course, there is the perspective of the “other” forum — perhaps there is an ongoing case at the Merit Systems Protection Board, or with the EEOC, or even a Federal Court case.  

Whether, from the “other” forum, there may be an interest as to whether the Federal or Postal employee has filed for Federal Disability Retirement benefits with the Office of Personnel Management, is a question which only the other forum can answer.  

If a claim is made in the alternate forum where the requested relief involves getting one’s job back, and at the same time, one has declared by the mere filing of a Federal Disability Retirement application under FERS or CSRS with the Office of Personnel Management, that one is no longer able to perform all of the essential elements of one’s job, then from the “other” perspective, what has been filed with the Office of Personnel Management may be of some interest to the other forum.  However, remember that seemingly contradictory concurrent filings are not necessarily negatively viewed, especially if such actions are engaged in order to preserve one’s right to assert a legal standing.  

Ultimately, however, it is a rare case indeed that an alternate, concurrent, concomitant filing with another forum has any relevance or impact upon a Federal Disability Retirement application.

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