Federal Disability Retirement: Thanksgiving

This year has seen a tremendous amount of changes: a seeming meltdown of the economy; a coming change of the Presidency; vulnerability of the Big Three Automakers; a housing market downward spiral; a volatile stock market which seems to take two steps back for each day of upward trading; and on and on. In the midst of such turmoil and change, when a medical condition impacts a Federal or Postal employee on top of it all, it makes any potential perspective for a bright outlook to the future look bleak. Remember, however, that this is a week of Thanksgiving. It does well for the soul to pause and reflect upon one’s blessings. Yes, disability retirement benefits may not pay enough, but it is a benefit which is granted by a Federal government which has a compassionate understanding that such a benefit is necessary to allow loyal employees to have an opportunity to receive a financial “base amount” — and hopefully be able to be productive in some other capacity or career. I hope that everyone takes a moment this week and spends time with “the family”. Happy Thanksgiving.

Sincerely,

Robert R. McGill, Esquire

Is There Life after a Disability in the Federal Workplace?

In tough economic times, it is often difficult to find that “silver lining”. This is even truer for my clients who obtain disability retirement benefits from the Federal Government, as well as those contemplating it. For, ultimately, I always find (without exception) that Federal and Postal Workers who are contemplating filing for disability retirement don’t want to be in the position he/she finds him/herself in.

They have been loyal and hard working Federal employees.  They have shown such loyalty through years and years of committed service.  But, for whatever reasons, and for whatever circumstances and situations, a sudden medical condition, or a degenerative medical condition, has brought that loyal employee to a point where he or she is no longer a “good fit” for a particular kind of job.

Such an employee can often be placed on a PIP (“Performance Improvement Plan”), or be given a Letter of Warning, or be placed on Leave Restrictions, or be told that no more light duties are available — all indicators that the Federal Agency or the particular Post Office is no longer willing to engage in “bilateral loyalty” — in other words, your 20 years of Federal Service will be rewarded with a boot out the door.

But such Federal and Postal employees must always have a positive attitude:  disability retirement benefits are there for you when they are normally unavailable in the private sector; while it pays a flat amount which one may not be able to necessarily live on, it is nevertheless a “base annuity” that can be depended upon.  And, further, a recent New York Times article concerning the state of the present economy pointed out what I have noted in the past:  Private Companies are hiring more and more older workers who have their own health insurance benefits, and who can work part-time without benefits.

That accurately describes the disability retirement annuitant, who is able to make up to 80% of what his/her former position pays now, on top of the disability retirement annuity, and retain life & health insurance benefits.  Always look for the silver lining.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement: Investment for the Future

Ultimately, whether or not this is an optimum time for an individual to file for FERS Disability Retirement is a decision each individual must make, depending upon the specific circumstances.

From a medical standpoint, of course, most individuals have no choice because he/she must file for disability retirement.  From an economic standpoint, as private companies cut back and begin relying upon a part-time workforce without needing to pay for a worker’s health insurance benefits and other benefits, a Federal Disability Retirement Annuitant is a very attractive potential worker, indeed, because most such annuitants retain their own health insurance benefits.

Such an annuitant can go out and find a job making up to 80% of what his/her former job currently pays, and still continue to receive the disability annuity.  Further, while each individual must make a decision concerning hiring a FERS Disability attorney to help secure disability retirement benefits, it should always be looked upon as a long-term investment.

Disability annuitants may be chosen randomly every two years to answer a Medical Questionnaire, and it is equally important to retain the benefits, as it is to initially secure it.  These are all issues which must be considered carefully, as an investment for the future.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement & the Economy

I have been asked, via multiple emails, of my opinion concerning the right time to file for disability retirement, given the state of the current economy. I am not an economist; I am an attorney who specializes in obtaining disability retirement benefits for Federal and Postal employees under FERS & CSRS. With that prefatory caution, let me state that I am an optimist, and always see the glass as “half full” as opposed to “half empty”.

First, if a Federal or Postal employee can no longer perform the essential elements of one’s job, then it is probably time to file for disability retirement. Second, while disability retirement does not pay a great amount of money, it is a base annuity which allows one to go out and start a “second career”, and make up to 80% of what a person’s former position presently pays, on top of the disability annuity. Further, because disability retirement allows one to retain one’s health insurance benefits, such an individual can be an attractive candidate to a private employer, because of the lack of need to insure the person in the course of his/her the second career. Third, in a tough economy, part-time employment is often more available, and so it is often a good economy for individuals who have a base annuity to rely upon, and who are looking for supplemental income.

In any event, one should always look at disability retirement benefits as an opportunity to preserve one’s deteriorating health, and move on to pursue other avenues of opportunities.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable.  Think about it this way:  yes, it doesn’t pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently.

Unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called “independent” medical examinations by doctors who make a substantial portion of their livelihood on rendering such “independent” second, third, and fourth opinions; your application is based upon what your own treating doctor says — not by some doctor who is a specialist in “disability ratings” or “disability determinations”.

This latter criteria is actually for the benefit of the applicant, when you stop and think about it.  For, if the law allowed for disability retirement applications to be determined by doctor’s opinions who are “disability specialists”, and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most — the treating doctor.

Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant’s longstanding treating doctor — and that is the way it should be.  For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws:  the special status of one who can make a viable, respectable determination of one’s employment capabilities, based upon the medical conditions he or she suffers from.  All in all, the disability retirement laws are governed by a criteria of reasonableness.

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