OPM Disability Retirement: The Freedom of Retirement

In this still-fragile economy, many people are rightly concerned that, upon an approval for Federal Disability Retirement under FERS or CSRS, that it will be difficult to “make up” the income with another job, even though a person under Federal Disability Retirement can earn up to 80% of what one’s former Federal or Postal position currently pays.

Yes, it can be tough; yes, the economy is a concern; but recessions ultimately come to an end, and while a job to make up the severe pay-cut may be long in coming, self-employment, to begin a start-up business, or to work part-time is often an excellent opportunity.  Unlike having the larger percentage of pay under OWCP-DOL benefits, a disability retirement annuity under FERS or CSRS is indeed a greater pay-cut.

But salary is not everything; the freedom of retirement, the ability to determine one’s future, and not be under the constant and close scrutiny of Worker’s Comp, accounts for much.  Where some see a severe pay-cut, others see as an opportunity to begin a second career.  And the price of freedom from those onerous fiefdoms of federal agencies is often better health, and greater enjoyment of one’s freedom and retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Thank the Medical Professionals

If not for the doctors, disability retirement would obviously not be a possibility.  Of course, one may make the self-evident statement that being supportive of a Federal Disability Retirement application is simply part of a doctor’s job; and, to some extent, that would be true.  Doctors should indeed be willing to write up supportive medical narrative reports for their patients.

Nevertheless, it is because of the doctor, the effort expended, the willingness to testify at a Merit Systems Protection Board Hearing, that the Office of Personnel Management even listens, or reverses a prior denial, and grants a disability retirement application.  Especially when a case gets denied twice by the Office of Personnel Management, it becomes crucial to have the cooperation of the treating doctor to testify in an MSPB Hearing.

This is normally done by telephone, thereby making it a minimal imposition upon the doctor’s time.  Indeed, I often only take a total of 30 minutes of the doctor’s time, including preparation and actual testimony, for an MSPB Hearing.  But the very fact that the doctor is willing to testify — to speak to the Administrative Judge directly to give his or her medical opinion — is often enough to convince OPM to change course, and grant the disability retirement benefits.

Sincerely,

Robert R. McGill

FERS & CSRS Disability Retirement: The Complexity of the Simple

Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers.  Indeed, “the law” is often made more complex by lawyers.  However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity.  That is why law itself is complex.  Don’t let the complex confluse you.

As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement and the Agency Cover of “Accommodation”

I am receiving too many phone calls from people who have been fooled by his/her Agency that they have been “accommodated”, and therefore they cannot file for disability retirement. From Federal Workers at all levels who are told that they can take LWOP when they are unable to work, to Postal Workers who are given “Limited-Duty Assignments” — all need to be clear that your are NOT BEING ACCOMMODATED, AND THEREFORE YOU HAVE A RIGHT TO FILE FOR DISABILITY RETIREMENT. Let me clarify this issue by first discussing the important case-law of Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001). Bracey was, and still is, a landmark decision — one of those cases that pushed back the attempt by the Office of Personnel Management to create a broad definition of what “accommodation” means, and thereby try and undermine a Federal and/or Postal Employees’ right to disability retirement. 5 U.S.C. 8337(a) states that a disabled employee is eligible for disability retirement unless the employee is able to render “useful and efficient service in the employee’s position”, or is qualified for reassignment to an existing vacant position in the agency at the same grade or level. What this basically means is that, if you have a medical condition and you cannot do one or more of the essential elements of your job, you are entitled to disability retirement unless your Agency can (a) do something so that you can continue to work in your job, or (b) reassign you to an existing vacant position at the same pay or grade (all of those words are key to understanding the Bracey decision). As to the first issue, if your medical condition, either physical or psychiatric, is impacting your ability to perform the key functions of your job (in other words, “useful and efficient service” means that you must be able to perform the “critical or essential” elements of your position), then it means that you are eligible for disability retirement — unless the Agency can reassign you to an existing vacant position (the second issue). As to the second issue, what the Court in Bracey meant is that there has to be an actual position existing, which is vacant, to which a person can be reassigned and slotted into, at the same pay or grade.

In Bracey, the Office of Personnel Management was trying to have it both ways: they argued that (a) an individual is “accommodated” if he can do his “job”, and the “job” which the Agency was having Mr. Bracey do was a “light-duty” job that was made up by the Agency. As a result, the Office of Personnel Management had denied Mr. Bracey’s application for disability retirement, and the case reached the Merit Systems Protection Board, and then to the U.S. Court of Appeals for the Federal Circuit on appeal. More recently, Agencies have been trying to convince Federal workers that they can take “Leave Without Pay” and work less hours; or revert to part-time status; or perform some other functions — and this constitutes an “accommodation”. Or, in the case of Postal Workers, especially those who have intersecting OWCP issues, one is often told that “Limited-Duty Assignments” constitute an “accommodation”. However, for the latter, it is important to review such assignments — does it include jobs from another craft? Are you offered a new “Limited Duty Assignment” each year, or every two years (which would imply that it is not a permanent assignment)? Can a new supervisor or Postmaster come in tomorrow and declare that there are no longer any “Limited Duty Assignments” available (which is often the case)?

Remember that a “position” in the federal employment system is “required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it. The ‘resulting position-classification’ system is ‘used in all phases of personnel administration’. 5 U.S.C. 5101(2)” (Bracey at page 1359). It cannot be a position “consisting of a set of ungraded, unclassified duties that have been assigned to an employee who cannot perform the duties of his official position.” Id.

Similarly, for Postal employees, you cannot be slotted in your craft position, but then be given duties crossing over from other crafts; and you cannot be told that you have been slotted into an already existing “vacant” position, but then be offered the same “Limited-Duty” position a year later. If it was truly a permanent “vacant” position, why would you be offered the same position a year later?

Remember that under 5 C.F.R. Section 831.502(b)(7), an offered position must be, among other things, of the same tenure as the position from which the employee seeks disability retirement. “Tenure” is defined at 5 C.F.R. Section 210.102(b)(17) as “the period of time an employee may reasonably expect to serve under his current appointment.”

If you are a Federal or Postal employee, and you find this discussion about the Bracey decision to be somewhat confusing, do not let the complexity of disability retirement laws keep you from inquiring about your eligibility. In its simplest form, disability retirement is about 2 issues: Are you able to perform the essential elements of your job? If not, Can your Agency slot you into an already-existing position at the same pay, grade and tenure, and not just in some “made up” position that hasn’t been graded and classified”? If your answer is “No” to both questions, then you are entitled to disability retirement benefits.

As true with all things in life, it is always better to affirmatively act with knowledge, especially knowledge of the law. Like the Tibetan proverb, to act without knowledge of the law is to act blindly. To fail to act, or to allow your circumstances to control your destiny, is to allow your Federal Agency or the U.S. Postal Service to dictate your future for you. If you are disabled, and unable to perform the critical elements of your job, then you should consider the option of disability retirement. Opting for disability retirement does not mean that you can no longer be productive in society in some other capacity; indeed, you are allowed to receive a disability annuity and go out and get another job, and make up to 80% of what your position currently pays. Opting for disability retirement merely means that you have a medical condition which is no longer a good “fit” for the type of job you currently have.

My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at federal.lawyer@yahoo.com, or visit my website at www.FederalDisabilityLawyer.com.

 

Robert R. McGill, Esquire

FERS/CSRS Disability Retirement compared to OWCP

OWCP vs. OPM Disability Retirement

The Department of Labor administers Federal Worker’s Compensation Benefits through the Office of Workers’ Compensation Programs (OWCP). Such benefits are non-taxable, and are paid for temporary total disability, for injuries or medical conditions which result from, or are caused by, a workplace injury. There are many tangential factors which may be added to this basic definition, but for purposes of distinguishing OWCP from the Office of Personnel Management (OPM) Disability Retirement, this definition will suffice. Additionally, generally speaking, OWCP/Federal Worker’s Compensation is not a “retirement system.”

OPM Disability retirement, on the other hand, is a retirement system. As a result of a medical condition which impacts one’s ability to perform the essential elements of one’s job, a person is eligible to retire early, based upon a “medical disability.” A person on OPM Disability Retirement is separated from the Federal Agency, and he or she may “move on” in life, and perhaps start another career (with certain limitations as stated below).

When is it Time to File for FERS/CSRS Disability Retirement?

An individual must file for Federal Employees Retirement System/Civil Service Retirement System (FERS/CSRS) disability retirement benefits with the Office of Personnel Management within one (1) year of being separated from Federal Service – otherwise, the right to be eligible for disability retirement benefits is lost. Do not confuse this with being placed on Leave Without Pay (LWOP), or being out on OWCP for being injured. The clock begins ticking when you are actually separated from service. Most people, however, should not wait until they are separated to file for disability retirement benefits, but rather, should file whenever it becomes apparent that he or she can no longer perform one or more of the essential elements of the job.

Taxable vs NonTaxable Benefits

OWCP benefits are non-taxable. OPM Disability Retirement benefits, on the other hand, are taxed. While receiving disability retirement benefits, a person may undertake a job search, accept another position, and earn up to 80% of what his or her former position currently pays. Individuals receiving OWCP temporary total disability may not work at another job – period. Here is a sample scenario using OPM Disability Retirement rules:

A worker’s average salary for 3 consecutive years totals $50,000. The individual goes out on disability retirement, and after the first year (in which he would receive 60%, or $30,000), he is eligible to receive an annual annuity of 40%, or $20,000. The worker then applies for and accepts a job in the private sector. The worker can accept a job that pays up to $40,000 per year (80% of the current salary), and still be eligible to receive the $20,000 per year disability annuity.

The 80% Rule Increases Over Time

The rule is “80% of what a person’s former job pays currently.” If 5 years from now, a person’s former position pays $60,000 per year instead of $50,000, then he can make up to $48,000 per year at the job, because 80% of $60,000 is $48,000.

Filing for Disability Retirement while on Workers’ Compensation

It is often not a bad idea for those who are receiving OWCP benefits to remain on OWCP for as long as they can stand it (i.e., the persistent harassment, the constant oversight by so-called “2nd opinion doctors”, etc.) — but to always have the FERS/CSRS disability retirement annuity approved as a back-up source of income. Individuals may file for disability retirement concurrently while on OWCP — but you simply cannot collect from both at the same time (See 5 C.F.R. Sec. 844.105, “Relationship to workers’ compensation. (a) Except as provided in paragraph (b) of this section, an individual who is eligible for both an annuity under part 842 or 844 of this chapter and compensation for injury or disability under subchapter I of chapter 81 of title 5, United States Code (other than a scheduled award under 5 U.S.C. 8107(c)), covering the same period of time must elect to receive either the annuity or compensation.”).

When OWCP terminates payments (and there is a very good chance that this will happen at some point in the near future), it is a wise option to have your disability retirement benefits approved, but held in an inactive status. Federal workers have every right to elect one benefit over the other. Indeed, if you wanted to, you are allowed to go back and forth between OWCP and FERS/CSRS disability retirement.

As a secondary issue on this matter, a closer look at 5 U.S.C. Section 8106, paragraph (c) (2), (OWCP) on “partial disability” compared with the definition for disability retirement reveals: that “partially disabled employee who refuses or, neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.” This means that if OWCP secures a job for you as a retail store greeter for instance, and pays you the difference between your salary and what retail store pays — and you decide to say “no”, OWCP has every right to cut off your payments.

On the other hand, under the laws concerning FERS & CSRS disability retirement, 5 C.F.R.Sec. 844.103 (a)(2) states that, in order to be eligible for disability retirement, the individual “must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position.” The difference here is that, under OWCP, if you are “partially disabled,” if you are offered any job that OWCP believes you can do, you must accept it. On the other hand, under FERS/CSRS disability retirement laws, if you are partially disabled — meaning that you simply cannot do at least one or more of the essential elements of your job — then you are entitled to disability retirement benefits, and your agency or the Postal Service cannot simply offer you any job; they must offer you a job in the same pay or grade, and one in which you are qualified or, if you are in the Postal Service, then it must an accommodation in the same craft.

Controlling Your Future

Under OWCP, you have no control over your future – OWCP determines your future. Under OPM Disability Retirement, you can obtain disability retirement benefits, and then take control of your future and work at another job of your choice, make up to 80% of what your (former) position pays and still continue to receive your disability annuity.