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

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

OPM Disability Retirement: Paradigms for the Future

In attempting to decide to file for Federal Disability Retirement Benefits, it is often the case that Social Security disability benefits must be considered (not just “considered”, obviously, for FERS employees, because it is a requirement to file for it), and how seriously and vigorously; and further, whether to pursue, or to continue on, OWCP temporary total disability benefits.  These are “paradigms” that must be considered for the future.  By “paradigm”, I mean that they represent “models” of how a person wants his or her future to be based upon. 

For instance, let’s take the paradigm of Social Security disability benefits.  Because FERS employees who file for Federal Disability Retirement benefits must also file for Social Security disability benefits (to see if they qualify; and, if qualified, the offsetting features will apply), one must take into consideration whether or not a Federal or Postal employee will actually want Social Security disability benefits.  This question arises because Social Security has a “cap” in which a person who receives Social Security disability benefits can make ancillary earned income (roughly no more than $10,000 per year).  Because of this, one must think of the future paradigm of one’s life:  If a person on FERS disability retirement wants to go out and get a part-time job, or start on a path for another career, where he or she makes 15, 20, 25,000 per year or more (because remember, a person can make up to 80% of what a person’s former Federal or Postal job currently pays), then he or she may not want to get Social Security disability benefits.  Most people who are on Federal disability retirement are simply disabled from performing one or more of the essential elements of the particular job; they are not “totally disabled”, and therefore are able to go out and start a second career.  This is the “paradigm” for the future which must be considered, and such a model for the future must be carefully thought through.  Next:  the OWCP paradigm.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Pre and Post

Issues revolving around the initial application stage, during the application stage, and after the approval, are often of equal importance.  This is because the approval of a Federal Disability Retirement application under FERS or CSRS will ensure the financial and economic survival and viability of the Federal or Postal employee.  Thus, in the pre-approval stage of the process, it is often good to engage in some future planning:  How hard will I fight for Social Security Disability?  Will I be getting a part-time job to supplement my income?  Where will I live?  During the process of obtaining disability retirement, there is the long wait, and the ability to remain financially afloat while receiving little or no financial support.  Post-approval, there are issues of the potential for receiving a Medical Questionnaire from the Office of Personnel Management.  Whether the current doctor will continue to be supportive, or will I move and need to find another doctor?  Because getting Federal disability retirement benefits is a life-long process, it is important to get sound legal advice from a competent attorney throughout the process — pre, during, and post process.

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

FERS Disability Retirement & SSA Awards

When filing for FERS Disability Retirement, one is required to file for SSA disability at some point in the process. Some Human Resources offices have declared that it must be filed prior to OPM’s acceptance of a disability retirement application; this is not true. A receipt showing that SSA has been filed can be forwarded to OPM at any time — even after approval. In the unlikely event that the SSA filing is approved prior to the FERS disability retirement being approved, it is important for the applicant to send to OPM a copy of the award notice, because under Trevan v. OPM, the Office of Personnel Management is required to consider the award of SSA disability, together with other medical documentation, in reviewing a disability retirement application.

There are other steps that need to be taken, of course, to ensure that OPM considers such an SSA award properly and in accordance with the holding in Trevan; and, in most cases, of course, it will not be an issue, because the majority of disability retirement applicants will not qualify for SSA disability; rather, it is a formality that must be satsified, simply because the law requires it.

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