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

OPM Disability Retirement and 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 $12,000 per year in 2013).

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: Agency Interaction

Federal Agencies often act like little fiefdoms.  This is not necessarily a negative thing; each agency is an independent entity, and each has a province of responsibilities which it must carry out and execute according to the statutory mandate provided by Congress.  As independent entities, each agency acts without coordination or regard to other agencies.

Thus, while approval for disability benefits from the Social Security Administration will mean an offset of monetary payments under FERS, such interaction between the two agencies simply goes to the financial payments — not to the substantive issues of approval or disapproval of a disability retirement claim.  Similarly, while receipt of temporary total disability payments from the Office of Worker’s Compensation Programs means that you cannot concurrently receive payments under CSRS or FERS disability retirement (unless you are receiving a scheduled award from OWCP/DOL), the substantive basis of approval or denial of a claim rarely overlaps.  This is because each agency has its own independent criteria for eligibility — meaning that, for Social Security, the “disability” has a higher standard of “total disability”, whereas under FERS & CSRS, it is a lower standard of “inability to perform one or more of the essential elements of one’s job”.  Similarly, with OWCP/DOL, the issue of “causality” and whether it is “work-related” is often the important component of consideration.

All of this is not to say, however, that an approval of a disability benefit from one agency,or a report from a doctor considered for one benefit, should not be used by the applicant for submission to another agency.  Indeed, this should be done — but carefully, and with thoughtfulness.

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

Federal/OPM disability retirement: Filing for SSA

I keep getting the same feedback that tells me that people are still receiving erroneous information: SSA disability benefits do NOT have to be applied for first before you file for OPM Disability retirement benefits. In fact, the Office of Personnel Management only needs the receipt showing that a disability retirement annuitant filed for SSA disability benefits at the time of approval. Further, OPM would actually prefer that the SSA denial was based upon reasons other than the fact that the Applicant is still working, because the coordinating off-set between SSA & FERS disability benefits would come into play; however, if an applicant files for SSA benefits & files for disability retirement benefits while still working (and, for most individuals, it is an economic necessity that one continue to work for as long as possible during the process of obtaining disability retirement benefits), then that individual will summarily be denied by the Social Security Administration based not on the medical disability claimed, but rather, upon the fact that the applicant’s current income exceeds the maximum allowed by the Social Security Administration rules governing income and eligibility for benefits based upon income. Thus, for the 50th time: a FERS disability retirement applicant does NOT need to file for SSA disability benefits before filing for OPM disability retirement benefits. At some point in the process, prior to, or at the time of approval by OPM, the individual should file, obtain a receipt of filing, and fax it to OPM.

I hope this clarifies the issue.

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 Resource 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