OPM Medical Retirement: Days of Partial Life

To whom do we owe our due?  What motivates, compels and propels?  Is it by way of a sense of indebtedness (a sort of negation attempting to claw back and regain a foothold), or an assertion of one’s rightful ownership of life, land and property?  Or perhaps there is a sense of a higher calling, whether by teleological justification, or a whisper of duty?

Some days, we walk within a mist of stupor, half-alive, barely conscious, and hoping to simply get through the day.  Other days, a breath of fresh air fills our lungs, and life promises a brighter future, like the winds suddenly lifting the stagnant kite higher into the heavens where promises of greater glories hold truth in the palm of an angel’s hand.  We often fail to recognize the power of our own daily will; it is free to choose, undetermined in the morning, past memories in the afternoon, and concretized by night.

There is a difference when an individual is beset with a chronic and debilitating medical condition, precisely because in such circumstances, one’s daily life is no longer free to choose like entrees on a menu for a preset course of delectable meals.  No, individuals with impacting medical conditions can only live lives of partial living, bifurcated into elementary segments:  times of pain, times of being pain-free; times of lethargy and cognitive loss of focus, and rare times of mental acuity and clarity of judgment.

For Federal employees and U.S. Postal workers who suffer daily from a medical condition, such that the medical condition begins to prevent one from performing one or more of the essential elements of one’s job, the judgment to file for Federal Disability Retirement may come when the proportionate bifurcation of the partial life reaches a critical point where the segment of pain exceeds the portion of non-pain, or put quite simply, when the quality of life deteriorates so miserably that one’s days off are merely used up in order to recuperate for further days of pain or cognitive dysfunction.

Federal Disability Retirement, filed through the U.S. Office of Personnel Management, is a benefit available to all Federal and Postal employees who have a minimum number of years of Federal Service (18 months for those under FERS; 5 years for those under CSRS).

When those days of a full life become transformed into a chronic continuum of days of partial life, it is time to consider preparing, formulating and filing for Federal Disability Retirement benefits, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: OWCP Doctors, and Others, Etc.

Can a doctor with whom one has been treating, but one which was obtained through the Federal Employees’ Compensation Act, Department of Labor (FECA/DOL), Office of Workers’ Compensation Program (OWCP), be an effective advocate for one’s Disability Retirement application?  Of course.

Often, however, there is a complaint that the “OWCP doctor” is not very responsive to a Federal or Postal employee’s attempt to approach the question of filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS.  As FERS & CSRS Disability Retirement is based upon proving by a preponderance of the evidence one’s medical inability to perform one or more of the essential elements of one’s job, it is crucial that the Federal or Postal employee contemplating filing for Federal Disability Retirement benefits have a supportive doctor.

While the Merit Systems Protection Board’s expanding case-law holdings continue to reinforce the idea that the most effective advocate in a Federal Disability Retirement case is a “treating doctor”, as such, medical reports obtained through 2nd opinion or “referee” consultations, or via filing for Social Security Disability benefits, may have some limitations on their usage; nevertheless, the weapons of arguing that an “independent” source of medical review also found that one could not perform one or more of the essential elements of one’s job, can be an effective substantive argument.

As for the OWCP-treating doctor, sometimes those forms completed by such a doctor will be enough to meet the eligibility requirements for OPM Disability Retirement — but that is an individual assessment based upon the uniqueness of each case.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: SSDI Considerations

In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS is exempted), one must at some point — at the time of approval or anytime prior to — file for Social Security Disability Insurance benefits.  This is because, under the laws governing FERS Disability Retirement and Social Security, there is an offset of 100% between the two benefits in the first year, then a 60% offset between the two benefits every year thereafter.  

Most Federal and Postal employees who are filing for Federal Disability Retirement benefits under FERS will not qualify for Social Security Disability benefits, precisely because Social Security has a higher standard of proof in order to qualify for such benefits.  However, one must nevertheless satisfy the requirement of filing for SSDI.  

For Social Security, one must essentially prove that one is “totally disabled” from performing any and all types of employment, whereas under FERS Disability Retirement eligibility criteria, one must merely show by a preponderance of the evidence that one is no longer able to perform one or more of the essential elements of one’s particular kind of job.  

Despite the difference in eligibility criteria, there are times when a Federal or Postal employee applicant will be deemed to qualify for Social Security Disability benefits, but not for FERS Disability Retirement.  While this may seem odd, this occurs because of the independent nature of each agency.  The Office of Personnel Management makes its determination independent of the Social Security Administration. There is case-law, however, which requires the Office of Personnel Management to take into consideration a Social Security Disability approval, and thus an SSDI approval can have some persuasive impact upon a FERS Disability Retirement application.  

Further, often an SSDI denial letter will specifically state a finding that while they have determined that the Federal or Postal employee fails to qualify for SSDI benefits, they acknowledge that he or she is unable to perform the particular kind of job in which they are currently employed.  Such statements can be used for further persuasive argumentation, but should be used with discretion and care.

As with most agency statements, an argument for its use can “cut both ways”, and one must have the discretionary wisdom to use them as a shield or sword wisely.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Entirety of the Process

There is a common understanding, based upon comments and statements made by people over several years, that when an individual files for Social Security Disability benefits, most such cases are denied at the initial stage.  It is almost understood as an “automatic” denial at the first stage of the process. 

Whether this is true or not or, more importantly, whether or not there are some who get it approved at the initial application stage and therefore betray the truth of such a belief, is besides the point.  What is important is the perception that it is so, and therefore, the approach which individuals take in filing for Social Security Disability benefits is altered and adapted accordingly. 

Similarly, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, whether or not most cases get approved at the Initial Stage of the Process, or at the Second, Reconsideration Stage of the process, is ultimately besides the point.  It is important to understand and approach the entirety of the administrative process with a proper frame of mind:  a denial at the Initial Stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS is not the end of the process; rather, it is just the beginning. 

By approaching the entirety of the process with a correct frame of mind — and reference — one can maintain one’s sanity while waiting for the conclusion of the long and arduous process to unfold.

Sincerely,

Robert R. McGill, Esquire

Early Disability Retirement for FERS Federal Workers: Social Security

Just another reminder to all who are contemplating filing for Federal Disability Retirement benefits under FERS (CSRS employees are excluded from this notification, because you do not have to file for SSDI) — that filing for SSDI is not a “sequential” precondition to filing for Federal Disability Retirement benefits under FERS.  

Many Human Resources personnel are apparently telling people that SSDI must be filed prior to sending in the Federal Disability Retirement application; or that a determination must be received by the Social Security Administration prior to filing for FERS Disability Retirement benefits; or, in some cases, some have been told that an individual must actually have to qualify for SSDI benefits prior to filing for FERS Disability retirement benefits. Misinformation is both perilous and pervasive in this society.  While it is logical to file for SSDI some time during the process of preparing a Federal Disability Retirement application, the only time that the Office of Personnel Management requires the receipt from SSDI confirming that one has filed, is when the FERS Disability Retirement application is approved by OPM. And, remember, all that is required is a receipt that you filed with SSDI; no determinations are necessary.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM May Say So, But… (Part 2)

Then, of course, there are the multiple “other” issues which the Office of Personnel Management “says so”, such as failure to pay the full amount of back-pay due; failure to compute the average of the highest-3 consecutive years correctly; reinstating the full amount of FERS once a person becomes no longer eligible for Social Security Disability benefits; arbitrarily and capriciously deciding that the medical report is not “good enough” in answering a post-disability approved, Medical Questionnaire; failing to compute the earned income in any given year properly, and thereby informing the disability retirement annuitant that he or she earned over the 80% limit of what the former federal employee’s former job currently pays; and a host of other issues.  My specialty is in obtaining disability retirement benefits for my clients; I only selectively get involved in post-disability annuity issues, but the point here is that the Office of Personnel Management has a track-record of being in error, in multiple ways, on multiple issues, in volumes of cases. 

It is thus important to recognize that the Office of Personnel Management is not an infallible agency.  Far, far from it, they are merely made up of people who are subject to error, but often stubbornly so — unless you counter their denial in an aggressive, but calm and rational manner.  If a denial comes your way, do not get distressed; prepare your case well, and lay out the groundwork necessary to win.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: Differing Legal Criteria

Similar benefits, at the State, Local, Private levels, and at the Federal level, each contain differing legal criteria for eligibility. Thus, for instance, Social Security Disability benefits require one set of standards of eligibility; private disability insurance policies require a different set of standards; and state disability benefits often differ from state to state.  This is of course true of Federal Disability Retirement benefits under FERS and CSRS — where the legal standard of eligibility is different from Social Security, Worker’s Comp, and State or private disability criteria.

Often, a question is asked whether a medical narrative report which is prepared for submission to the Office of Personnel Management can be used for submission for other “similar” benefits.  The short answer is, “It all depends”, but the long answer is that, in most cases, one must be very cautious.  When I represent a Federal or Postal employee under FERS or CSRS, one of the first steps in preparing a viable case is to request of the treating doctors a detailed medical narrative report.  One must understand that the treating doctor has, generally speaking, next to no idea as to the legal criteria that must be met under FERS or CSRS.  Furthermore, the treating doctor has no legal knowledge as to the differences between private disability insurance policies, State, Social Security, OWCP or FERS & CSRS.  It is the job of the Attorney to make sure and guide the treating doctors as to the criteria which must be met as to the particular and specialized field for which the medical narrative is being prepared.  This must be done with care, and with detailed guidance.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Don't Confuse the Standards

People who call me for advice, who are potential candidates as clients for Federal Disability Retirement benefits under FERS or CSRS, often interchangeably use terms which apply to different standards:  standards of total disability as opposed to a medical disability which impacts one’s ability to perform one or more of the essential elements of one’s job; whether a medical condition is an “accepted” disability (a concept which is often used in Social Security disability cases); whether a person can file for Federal Disability Retirement benefits even though he “hasn’t reached MMI” (“Maximum Medical Improvement”) — which is language encompassing a concept familiar to OWCP/DOL (Worker’s Comp) cases; or, on a different level, the statement that an agency has been “accommodating” an employee by allowing him/her to take sick leave, Leave Without Pay, or to “not have to travel as much” — mistakenly or loosely using the term “accommodation”, when in fact such agency actions do not constitute a legally viable accommodation, as that term is used in Federal Disability Retirement laws. 

It is the job of the attorney to correct, clarify, and otherwise explain the proper terminology and precise application of concepts in Federal Disability Retirement cases.  It is not surprising that people who are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS use the various terms in error, or mix terms unknowingly — for there is alot of misinformation “out there”; it is the job of an Attorney who specializes in Federal Disability Retirement law to clarify such confusions.

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