Medical Retirement for Federal Workers: Back Pay

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to focus upon the first of the three — preparing.  Preparation often involves thought, reflection, and contemplation.  Formulation requires action; and filing and the time thereafter requires patience.  

In preparing, one must address the issue of how best to survive the lengthy process — does one have sufficient accrued sick leave?  Can one survive without pay and take LWOP during the (potentially) 8 – 10 month process?  Will one be allowed to continue to work, even in a light-duty capacity?  If the latter, then it should be kept in mind that when a Federal Disability Retirement application is approved, such an approval will provide for back pay all the way back to the last time a Federal or Postal employee was paid by the agency — whether it is a dollar, a hundred dollars, or a full paycheck.  

Thus, while acceptance and receipt of donated leave is often desirable, the time of having taken LWOP for any period of time will be negated with the last day of pay.  For example, if a Federal or Postal employee takes several months of LWOP, then accepts a pittance of donated leave, that time of LWOP is lost — for, again, back pay is paid only to the “last day of pay”.  Considerations to be reflected upon when preparing to formulate and file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: The Agency, FMLA and LWOP

Because filing for Federal Disability Retirement is a process which may take 6 – 8 months, and sometimes longer, there is always the question of what the Agency will do during this time.  Of course, a Federal or Postal employee will often continue to work for as long as possible, and for as many days during each enduring week as possible, in order to survive economically during the process of preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS.  The medical condition itself, however, will often dictate the feasibility of attempting to continue to work. 

During this period, a Federal or Postal employee may have limited options — especially when Sick Leave and Annual Leave have been exhausted.  Protection by filing under the Family and Medical Leave Act (FMLA) will accord temporary protection and a buffer against a demanding agency.  A further request to be placed on LWOP beyond the 12 weeks which FMLA will allow for, will often be granted at the discretion of the Agency. 

If an agency places one in AWOL status, such an action by the Agency should be countered with documentation from one’s doctor which justifies the continued absence of the Federal or Postal employee.  Unfortunately, there is often no clear answer to the question, “What if my agency fails to cooperate while I am filing for Federal Disability Retirement?”  There are only responsive steps to take in order to protect the ultimate goal — that of obtaining an approval from the Office of Personnel Management.  

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for Federal & Postal Employees: Reminder (Continuing…)

So, how does one determine whether or not it is prudent to go out on LWOP completely, while awaiting for the decision on one’s application for Federal Disability Retirement benefits under FERS or CSRS?  Obviously, the initial criteria to be applied is whether or not you can afford to go out on LWOP.  Economic necessity (aside from considerations of one’s health and medical ability/inability to go to work during the long, drawn-out process) becomes a primary consideration.  If economic necessity dictates continuation of work, then the next question is, would your Agency consider allowing you to work 3 – 4 days a week, and allowing for 1 or 2 days to be taken off with LWOP?  This might be a prudent approach, since any back-pay for the first year, once your Federal Disability Retirement application is approved and payments start, will be paid at 60% of the average of one’s highest three consecutive years.  Thus, mathematically, it would make sense:  a minimum of 3 days of work quantifies to 60% or more, and so you would not be losing anything.  However, if your weekly average falls below the 60%, then you might want to consider going out on LWOP completely (again, only if your personal finances will allow for such).

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Indicators

If your weekends are spent for the purpose of recuperating just so that you can have the energy, strength, mental acuity, and sustained focus and attention to go back to work on Monday, then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if, after each day of work, you are so profoundly fatigued that you end up spending each evening just resting, unable to have any significant recreational enjoyment or time for relaxation, time with family, etc., then it is an indicator that you may need to file for Federal Disability Retirement benefits under FERS or CSRS; if you must take sick leave, LWOP or annual leave every few days, or after a week of work, because you need the time off to recuperate, then that is a further indicator.  Ultimately, each individual must make his or her decision as to the timing and whether one has reached a critical point where filing for Federal Disability Retirement benefits under FERS or CSRS is necessary.  Different reasons for different people; different factors at different times of one’s life. 

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

OPM Disability Retirement: Can the Agency Accommodate You?

The term “accommodations” continues to be a highly misused one.  There is the general conceptual application, as when an agency attempts to do something to help a Federal or Postal employee by “allowing” for “light duty”, or allowing one to work at a reduced schedule, or to take sick leave, annual leave, or Leave Without Pay.  But such actions (as kindhearted as they might be intended) do not constitute a legal accommodation under disability retirement rules, statutes, laws or case-law. 

To legally accommodate someone must always mean that the agency does something, provides something, or creates something of a permanent nature, such that it allows you to perform the essential elements of your job.  Temporary measures, or allowing you to take time off, does not allow you to perform the essential elements of your job — instead, it merely allows you take time away from being able to do your job.  Remember, on the other hand, that there is nothing wrong with your Agency doing these things to “help you out”.  It simply does not constitute, or rise to the level of, an “accommodation” under the law.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Additional Issues Concerning Resignation

An federal agency has a legitimate concern with respect to the work that is not being performed while a person is either out on sick leave or on leave without pay as a result of a medical condition.

On the other hand, Federal and Postal employees who have worked for a sufficient amount of time to be eligible for disability retirement benefits (18 months for FERS employees; 5 years for CSRS employees) have a legitimate expectation of bilateral loyalty — meaning that, inasmuch as the employee has been loyal in the performance of his or her job to the Agency, there is a reasonable expectation that the Agency will be loyal during times of medical hardship, and treat the employee with empathy and compassion.

At some point, greater friction begins to build as the time-frame keeps expanding; the Agency wants the employee back at work, or have the position filled. During the “friction” time, the employee has the leverage to have the Agency propose an administrative, non-adversarial removal based upon the medical inability of the employee to perform his or her duties. It is up to the attorney to persuade the Agency that the goal of the employee runs in the same goal-oriented direction as the Agency: the Agency wants the position; the employee wants disability retirement; both have a common end in mind — vacancy of the position so that the work of the Agency can be accomplished. On the other hand, resignation for the employee gives the employee nothing other than separation from the Agency; it gives the Agency everything it desires.

Sincerely,
Robert R. McGill, Esquire

OPM Disability Retirement: Clarification of Issues for FERS & CSRS Employees

In moderating the Martindale-Hubbell Message Board for Federal Disability Retirement Issues, two areas of law need clarification for those out there contemplating filing for Federal Disability Retirement under FERS or CSRS: First, the issue of whether a potential applicant needs to wait to be separated from Federal Service in order to obtain the “Bruner Presumption“, before filing for disability retirement.

The short answer is an unequivocal, “No”. To wait for an agency hoping that they will separate you for your medical inability to perform your job, is like waiting for your rich uncle to die and leave you an inheritance: It may never happen, and even if it does, it may not be worth it. While the Bruner Presumption is a nice additional weapon to have in arguing for an approval, it is not a necessary element.

The most important element in an OPM disability retirement case is to have a supportive doctor. Application of the Bruner Presumption — a recognition by the Agency that they cannot accommodate you, and further, that you cannot perform your job as a result of your medical condition, while a weapon in arguing for an approval to OPM, is not necessary in most cases. The point is to make sure your supporting medical documentation is strong, thereby negating the need for the Bruner Presumption.

Further, another common confusion which people have is what it means to be “separated from service”. The Statute of Limitations in Federal Disability Retirement cases is 1 year from the date a Federal Employee is separated from Federal Service. The 1-year does NOT begin when a person is on LWOP, or when a person is on FMLA, or any other reason. The 1-year begins when a person is officially terminated, separated, or taken off of the rolls of Federal Service, or when a person resigns from the Federal Service. It is 1 year from that date that a person must file for Federal disability retirement benefits, or you lose your right forever to do so.

Second, and finally (at least for this particular Blog piece), with respect to the 80% rule — where a person can earn income up to 80% of what one’s former Federal job currently pays: this is in addition to the disability retirement annity that a person receives.

Think about it, and it is logical: disability annuity is not “earned income”; the 80% rule applies only to “earned income”. Thus, for example, a person who was making $60,000 at a Federal job, who goes out on disability retirement, would get $36,000 the first year under FERS (60%), and $24,000 per year every year thereafter (40%). At the same time, that person can go out and make up to $48,000 per year (80% of $60,000), with that amount going up slightly each year (assuming that the payscale in the Federal system goes up each year for that same pay and grade). I hope this clarifies some of the issues that may have given rise to some confusion.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Back-Pay

Remember to not spite yourself, especially when it comes to financial considerations. If your medical disability is forcing you to take excessive LWOP, it might be better to go “cold turkey” and stay completely out on LWOP while you file for disability retirement benefits. This is because, once you get your disability retirement application approved, you will be paid “back pay” in a lump-sum form, back to the last day of your pay, at the 60% rate from your last day of pay forward for the first 12 months.

Thus, if you work only 2 days out of the week, and you take LWOP for the other 3 days, you are losing 20% of pay, because were you to go out on LWOP, instead of being paid 40% of your salary (2 out of the 5 days), you would be getting back-pay for essentially 3 out of the 5 days (60%). On the other hand, don’t go out on LWOP, then after 4 or 5 months, go back to work for a week — because in that instance, you will never recover the 4 or 5 months of LWOP, because the “last day of pay” will have been paid to you when you went back to work. While all of this may be a bit confusing, it is essential to your financial health and consideration when entering the complex process of Federal Disability Retirement under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire