CSRS & FERS Medical Disability Retirement: Acts of Futility

It was Heidegger who observed that our everyday lives were merely distractions in order to avoid the ultimate encounter with our own mortality — a revelation too profound to contemplate, and thus we engage in meaningless and monotonous projects in order to shift our focus away from the stark reality of life and death.

It is indeed the human species which continually and perennially embraces various acts of futility, despite irrefutable evidence that such actions lead to no fruitful or purposive outcome.  But to cease such engagements would be to stop and think; and reflection would mean a forced quietude in which contemplation upon the state of one’s being would be unavoidable; and from there, the vast void of nihilism might encroach, and so perhaps resumption of purposeless, repetitive treadmill-like engagements are best for sanity and survival.

For Federal and Postal employees who suffer from medical conditions such that one is prevented from performing one or more of the essential elements of one’s job, however, contemplation in filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management is a necessity which cannot be avoided.   Further, the greatest singular act of futility in preparing a Federal Disability Retirement application is to wait upon an agency to act; for, as agencies exist in order to appear to act with purpose, but where inaction allows for greater exigencies and justification for existence; as such, agencies rarely act, and when they do, they do so to the detriment of the Federal or Postal employee.

Thus, the hard rule should always be:  be proactive and do not wait for an agency to accommodate or otherwise assist you.  Distractions and diversions are fine in life; but when the necessity arises to attend to one’s medical needs, you need to act, and act in the best interest of one’s own being.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Historical Problem

Ultimately, before the Federal or Postal Worker considers filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management, a number of factors need to be considered, including (but not limited to) the following:  Can I last until regular retirement?  Will continuation in the job result in further deterioration of my health?  Will my absenteeism or subpar performance result in adverse actions being initiated, including imposition of leave restrictions, a PIP, further disciplinary measures such as a suspension, or ultimately a removal?  Is waiting going to make things any better?  Do I have a doctor who will support my Federal Disability Retirement application sufficiently?

The history of most applicants who are filing for Federal Disability Retirement benefits, whether under FERS or CSRS, is replete with unanswered questions and issues ignored or unaddressed.  But when the convergence of a medical condition with a Federal agency or the U.S. Postal Service comes to fruition, the clash and collision between appearance and performance will often force the questions to be answered.

Waiting for things to occur will normally not solve the historical problem; being proactive, directly confronting undesirable questions, and taking the necessary steps to secure one’s future — these are the foundational steps necessary for a successful Federal Disability Retirement application, and the key to age-old questions which harken back to the problem of history, so that history may not repeat itself.

Sincerely,

Robert R. McGill, Esquire

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

OPM Disability Retirement: SSDI and the Pursuance Thereof

How aggressively one should pursue SSDI concurrently as one is preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is a question which one is often confronted with during the process of filing for Federal Disability Retirement benefits.

If one is under CSRS, then the question is a moot point, because CSRS employees do not have a requirement of filing for SSDI benefits.

For FERS employees, however, who make up the vast majority of Federal and Postal employees who file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is a requirement of filing concurrently for Social Security Disability Insurance (SSDI) benefits.  For purposes of satisfying the requirement of OPM, one needs to only show a receipt that one has filed.  Further, while many Human Resources personnel offices, both for Federal agencies and the U.S. Postal Service (the latter being comprised of the central office known as the H.R. Shared Services Center located in Greensboro, N.C.), misinform and misinterpret the statutory requirement of filing for SSDI, by telling people either that one must file and get a decision from the Social Security Administration prior to filing for FERS Disability Retirement benefits (wrong), or that you cannot file for FERS Disability Retirement unless and until you file for SSDI (also wrong) — the fact is, the only time OPM requires a showing of having filed for SSDI is at the time of an approval of a FERS Disability Retirement application.

As for how actively or aggressively one should pursue SSDI?  That depends, in most cases, on whether you will be attempting to work in a private sector job while on Federal Disability Retirement.  Because SSDI has stringent limits on what you can make in earned income, while OPM Disability Retirement allows for you to make up to 80% of what your former position currently pays, on top of the disability retirement annuity one receives, it becomes a pragmatic calculation.

Pragmatism is the guiding light to determine one’s self-interest, and that which is in the best interest of one’s future.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: SSDI, FERS & Persuasive Impact

As part of the process in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one must file for Social Security Disability benefits (SSDI) — if the Federal or Postal worker filing for Federal Disability Retirement benefits is under the FERS programs (CSRS employees are exempted because it is not tied to the Social Security component as part of the retirement system).

A small percentage of cases actually get approved by Social Security prior to a decision being made by the U.S. Office of Personnel Management.  When that happens (and yes, it is fairly rare, if only because most Federal and Postal employees filing for Federal Disability Retirement benefits do so with a recognition that (A) they cannot do a particular kind of job, and (B) with a view towards working at another job, career, vocation, etc., whether part-time or full-time), then the question becomes:  What does one do with an SSDI approval letter?  Trevan v. OPM and subsequent cases, of course, comprise the rule on the matter; but such court cases essentially state that the decision of the Social Security Administration, as well as other Federal entities, are merely persuasive, as opposed to determinative.  But how persuasive?  Persuasive is a relative term.

To an unsuspecting innocent bystander, a person of reprehensible intensions may “persuade” quite easily; to the cynic and man of suspicious nature, “persuasion” may take the full effort of a team of con artists.  For the OPM Case Manager in the OPM Disability, Reconsideration & Appeals division, a decision by the Social Security Administration will take a 3-legged approach to have any impact at all:  (A)  the decision itself, (B) the case-law which makes the Federal Agency’s decision relevant to an OPM Disability Retirement case, and (C) accompanying medical evidence.  And, of course, the 4th component in all of this would be the methodological argumentation by the Applicant or the Federal Disability Attorney who argues effectively the previously-cited 3 components.

Persuasion is a “relative” term — indeed, relatives tend to be more familiar and therefore easily persuaded; strangers to the process need not apply.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement for Federal and USPS Workers: SSDI & FERS

It happens quite often.  In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal and Postal employee must file for Social Security Disability benefits (under FERS; CSRS is exempted because there is no Social Security component under the law).

While many Human Resources offices, as well as the H.R. Shared Services office in Greensboro, N.C. for the Postal Service, will assert to the Federal and Postal employee that they must “wait” until they get a decision from the Social Security Administration, the truth is that the U.S. Office of Personnel Management only needs to see a receipt showing that SSDI was filed, and this can be easily obtained online by simply completing their questionnaire, submitting it, then printing out a receipt.  Moreover, OPM only needs the receipt showing that one has filed, at the time of an approval.

By being misinformed and ill-advised, what often happens is a delay in the entire process — either that the H.R. office of an agency, or for the U.S. Postal Service, delays processing their part of the Federal Disability Retirement application, or the Federal or Postal employee is left with the misinformation and impression that he or she cannot file for Federal Disability Retirement benefits until the Social Security Administration has made a decision.

Then, of course, there are those who believe (wrongly) that they must receive a “final” decision from SSDI — meaning that after the initial denial is issued, and they have appealed the decision, they must await the results of the appeal.  This can take many months, if not years, and by that time, there is the danger that the Statute of Limitations has come and gone for filing for Federal Disability Retirement benefits.

Information is normally a neutral conglomeration of facts and issues, but can be a positive thing; misinformation, by inverse logical definition, would then be a negative thing.  More than that, reliance upon misinformation can lead to real-world consequences — ones which are irreversible.  As such, one must check and double-check the source of information, in order to ensure that reliance results in reliability.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: SSDI Approval as a Special Case

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there are multiple discretionary decisions which must be made in preparing a paper presentation to the Office of Personnel Management.  For instance, should determinations made by Second-Opinion or Referee doctors in a case which concurrently involves OWCP issues be included in the submission?  Should VA ratings be part of the packet?  Should determinations by a private disability insurance company be included? Should a determination by the Social Security Administration — which often will come about when the packet has already been submitted to the Office of Personnel Management while awaiting a decision — be forwarded to OPM?  

In proving one’s eligibility for Federal Disability Retirement benefits under FERS or CSRS, one must affirmatively prove, by a preponderance of the evidence, that one is eligible for the benefit.  That leaves much of the decision-making process regarding what information is relevant, helpful, pertinent and substantive, up to the Federal or Postal employee and/or his attorney to decide.  There are multiple details, and it is often in the minutiae and details which will win or lose a case.  Should all medical conditions be made a part of the packet?  

These are all discretionary issues to be decided, with the possible exception of Social Security.  Inasmuch as SSDI must be filed, and inasmuch as the statutory mandate is that SSDI and a FERS Disability Retirement annuity must be offset if both are approved, an approval by SSDI is a special case which is non-discretionary.  Not only must OPM be informed of its approval; under the case-law, it must be considered in the process of deciding upon a Federal Disability Retirement case.  Nevertheless, it still remains merely persuasive authority, and not determinative.

Sincerely,

Robert R. McGill, Esquire