OPM Medical Retirement and the Interplay with SSDI

Some stream of consciousness thoughts:  First, there is still the prevailing problem of Federal or Postal workers being lead to believe that there is some sort of sequential requirement in filing for Social Security Disability benefits (SSDI) and filing for Federal Disability Retirement benefits with the U.S. Office of Personnel Management.

While the sequence of filing for SSDI would be logically coherent — i.e., since at the time of an approval of a FERS Disability Retirement Application, the Office of Personnel Management requests to see a receipt of filing from the Social Security Administration — many people in fact go this route.  But the problem arises when Federal and Postal employees somehow get the misinformation that they must wait until they receive an approval from SSDI, which can take years.

During the wait, the 1-year statute of limitations may come and go.

The solution:  Go ahead and file for SSDI, get a receipt, etc.  But never allow the 1-year Statute of Limitations to pass in filing for Federal Disability Retirement benefits with the U.S. Office of Personnel Management.  Again, for OPM purposes, all that is required is a mere showing of a receipt that you filed; no determination needs to be made and, moreover, OPM only requests to see the receipt at the time of an approval.

Second, if SSDI approves your Social Security Disability Case at any time during the process of filing for OPM disability retirement benefits, it can have a persuasive impact, but not a determinative one.  This merely means that OPM will consider it in the totality of the medical evidence you submit.  But to have a persuasive impact, you need to make the “legal” argument — i.e., you need to try and persuade.

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

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

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