FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Tools

Few disciplines and classes of artisans create their own tools.  Musicians do not fashion their own instruments; accountants do not produce calculators or computers; painters do not manufacture their own brushes.  The blacksmith does, however, form and mold his own ironworks.

Similarly, the lawyer formulates the tools upon which he crafts his arguments; for, as most Judges are lawyers themselves, and the vast majority of legislators are also attorneys, so the statutes which are issued, and the judicial opinions which are rendered, are analogously “created” by those who are members of the class identified as “lawyers”.  Once created, it is how the tools are used which makes all the difference.

In Federal Disability Retirement law, the multiple tools available must be utilized for the very purpose of their making.  Thus, application of the Bruner Presumption must be invoked where appropriate, and “stretched” to their logical extension wherever possible; the “Trevan” rule concerning SSDI approvals should be pointed out whenever it has been approved during the process of waiting for a decision on a Federal Disability Retirement application; and the restatement of the applicable legal criteria in Henderson v. OPM should be emphasized when OPM attempts to misinterpret the applicable statutory criteria in being eligible for Federal Disability Retirement as requiring a 1-to-1 ratio between medical conditions and positional duties; and multiple other legal tools.

The issue of “where” a tool was manufactured, unless poorly constructed, is rarely one of importance or relevance; rather, it is how the tool is applied which is the issue of greater import and significance.  For it is precisely the “how” and the efficacy of the utilization of a tool which results in the intended consequences of such use.

For the blacksmith, a well-fitting horseshoe; for the accountant, a tax savings; for the artist, a masterpiece; for the lawyer, a victory.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: OPM & SSDI

In filing an application for Federal Disability Retirement benefits under FERS (Federal Employees Retirement System), the applicant must file for Social Security disability benefits (SSDI) sometime prior to the approval of a Federal Disability Retirement application.  This is because the “system” of FERS is tied to the Social Security System, and the Federal Government wants to see whether or not a FERS disability retirement applicant is concurrently eligible and entitled to Social Security Disability benefits.  Those Federal or Postal Workers who are still under the “old system” (CSRS — Civil Service Retirement System) — and you are getting rarer and fewer each year — need not apply.  Those who are of a “hybrid” nature (CSRS offset, etc.) also should apply.

 There is an inconsistency in the way the Office of Personnel Management “requires” the filing for SSDI.  Sometimes, OPM will insist that a FERS Federal Disability Retirement applicant file for SSDI and obtain a receipt only after he or she has been unemployed or separated from the Federal Agency; other times, OPM will be fully satisfied with a receipt of an SSDI filing obtained even while employed by the agency, even though it would mean that an SSDI denial was based upon employment, and not upon whether a person was disabled or not.  In any event, an applicant who is filing for Federal Disability Retirement benefits under FERS should comply with the requirement by filing for SSDI, and getting a receipt showing that one has filed.  

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: FERS & SSDI

Of course one must file for SSDI (Social Security Disability benefits) when a Federal or Postal employee under FERS (the Federal Employees Retirement Systems, as opposed to CSRS, the Civil Service Retirement System) files for Federal Disability Retirement benefits.  If approved by Social Security, there is a 100% offset of benefits in the first year, and a 60% offset of benefits every year thereafter until age 62.  The real underlying question for most people, is how aggressively one should, or one wants to, pursue Social Security benefits.  This is often determined by what one plans to do after becoming a Federal Disability Retirement annuitant.  For, if you plan to work part or full time, and think that you will be earning more than the yearly ceiling allowable under SSDI, which is around $12,000.00 per year, then it is probably not worthwhile to pursue it very aggressively.  On the other hand, if you plan on relying exclusively on your disability annuity, it is probably a good idea to pursue it with the intent of obtaining it. 

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Social Security Disability

Under the rules concerning FERS disability retirement applications, one must file for Social Security Disability.  As most people already know, there is an interaction/offset between Social Security Disability benefits and FERS disability benefits, if both are approved (100% offset in the first year of annuity, 60% offset every year thereafter).  One would assume (dangerously, as it turns out), that if an application for Social Security disability is approved, that it would automatically render an approval under FERS disability retirement a “sure” thing.  Nothing could be further from the truth. 

The fact that Social Security has a higher standard of proof — where one must be considered “totally disable” as opposed to (under the legal standards for FERS) “disabled from performing one or more of the essential elements of one’s job”) — one would think that, legally and logically, if you have met the higher legal standard of proof, then the lesser standard would have been automatically met.  Unfortunately, because the two standards are applied in different, independent agencies, the fact that Social Security Disability benefits are awarded is not a guarantee that the FERS disability retirement application will automatically be granted.  However, there is clear case-law stating that OPM must consider the approval by SSD as one factor among many in the consideration of FERS disability retirement applications.  It is important to cite such cases in support of your application for FERS disability retirement.

Sincerely,

Robert R. McGill, Esquire

Approval of Disability by the Social Security Administration

Approval of Disability by the Social Security Administration: In Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), the Federal Circuit Court found that in making a determination of eligibility for disability retirement under FERS, the Board must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability. This is because the Federal Circuit Court wanted a consistency of determinations concerning disabilities, by all governmental agencies and departments. Social Security obviously has a stricter standard, and requires that an applicant be “totally disabled” in order to award benefits. I have effectively argued that similar determinations by other governmental agencies (such as the Veterans Administration) should also be required to be considered by the Office of Personnel Management.

Sincerely, Robert R. McGill, Attorney