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

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: Beyond the Bruner Presumption

The methodology of making extended legal arguments beyond the explicitly stated statute or case-law is a natural event, accepted and expected by Judges and opposing counsel.  However, there are unspoken but circumscribed limits to such arguments, and when an individual attempts to go beyond the parameters of rational argumentation, the entire argument loses its underlying credibility.  

Thus, in a Federal Disability Retirement application under FERS or CSRS, one may argue for the application of the Bruner Presumption once a proposal to removal a Federal or Postal employee for his or her medical inability to perform the essential elements of one’s job has been  initiated.  Such an argument would certainly be a logically viable one.  

Further, there is certainly legal authority and precedent for use of Social Security Disability approvals, and Veteran’s Administration ratings, as persuasive arguments in a Federal Disability Retirement case.  But how far can an argument — often “by analogy”, which has a long tradition of acceptance in the legal arena — be taken?  For instance, can an email discussion between supervisors within an agency discussing and admitting a proposed removal of an employee based upon his or her medical inability to perform the job be used?  Probably, but sparingly.  Can the Bruner Presumption be applied in such a hypothetical?  Probably not, but the principles underlying the case of Bruner v. OPM can certainly be argued as “further evidence” of the agency’s inability to accommodate the Federal or Postal applicant.  

These all constitute the boundaries of legal argumentation, which can be pushed to their limits, but with care and the tool of logical force.  But one must, of course, always be careful — because, to use a tool based upon logic implies that the user has been trained in logic and logical argumentation, which in and of itself is a discipline sorely lacking in many people, including many attorneys.

Sincerely,

Robert R. McGill, Esquire