CSRS & FERS Disability Disability Retirement: Interaction with VER, A Continuing Dialogue

I sincerely hope that the proposed VERs which will be issued in the next couple of weeks will be economically viable and rewarding for those who qualify.  I say this because the primary criteria proposed for qualification involves those who are at least 50 years of age with at least 20 years of service, or any age with at least 25 years of service.  Anyone who has dedicated his or her life for a minimum of 20 years deserves something comparable to “full retirement” benefits.  My suspicions are raised, however, only because the motivating factor behind the offer is to target employees in specific locations where reductions in force or restructuring will be taking place — i.e., from the Post Office’s perspective, those places where greater “efficiency” can be obtained, at the cost of a person’s lifetime dedication and service to the Federal Government.  I realize that Adam Smith’s economic truth will always be at play — that self-interest leads to unintended consequences which, in a capitalist system, results in collateral benefits of employment, wide economic impact, etc.  But just make sure that, just as the Post Office is looking after its own interest first, that each Postal employee looks after his or her own interest, similarly — first.  Look at the VER carefully.  Compare it to disability retirement benefits carefully — not only in terms of “today’s” dollar value, but also into the future.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM Disability Retirement & Postal Service Voluntary Early Retirement (VER)

For multiple reasons, early retirement — if eligible; if offered; if … — is an option which must be considered by a Federal or Postal employee.  In the coming months, Voluntary Early Retirement will be offered to Postal Employees; each year, Federal employees who become eligible for some form of early retirement must make hard financial decisions.  In light of the present state of the economy (not good), an offer of early retirement (some not so bad) may have to be considered by the Federal or Postal employee.  In each case of such an offer, the details of any such offer must be carefully reviewed and considered — especially if, concurrently, a Federal or Postal employee is considering filing for disability retirement.  A Federal or Postal employee can only collect one or the other:  you can either receive an early retirement annuity, or a disability retirement annuity, but not both.  You can, however, consider filing for early retirement (in order to continue to have some income), then file for disability retirement within one year of being separated from Federal Service. 

If you take this route of filing for early retirement, then filing for disability retirement, you must be careful.  For instance, if a lump-sum payment is part of an early retirement package, will it have to be paid back if you file for, and are approved for, disability retirement?  Further, remember that the years that you are on disability retirement counts toward your total number of years of Federal Service, when it is recalculated at age 62.  This is an important point.  The short-term benefit of retiring early may not seem like such a good idea 10 years later when inflation eats into the annuity.  A cost-benefits analysis should look to all of the factors involved:  the annuity amount and difference between disability retirement and early retirement today; the difference of the annuity when disability retirement is recalculated, and those years while on disability retirement count towards your regular retirement; and the dollar difference calculated out to the life expectancy.  These are all considerations which must be looked at carefully — not just upon one’s short-term benefit of an early retirement (which may seem great), but more than that, for the long-term security of the Federal and Postal employee.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The OWCP Danger of Complacency

I have had far too many calls by individuals who were complacent with being on OWCP/DOL temporary total disability compensation. The old adage, “Ignorance of the law is not an excuse”, is still generally true. It is the responsibility of the Federal or Postal employee to file for Federal Disability retirement benefits under FERS or CSRS in a timely fashion — within one (1) year of being separated from Federal Service.

The fact that an individual is on the rolls of Worker’s Comp, receiving Worker’s Comp, receiving a scheduled award, going through rehabilitation or job retraining does not protect or extend the Statute of Limitations of 1 year.

Many people, especially Postal Workers, become separated from service without being properly notified.  A hint:  If you all of a sudden stop receiving those “Zero-balance” pay checks, chances are, you have been terminated & separated from service.  The burden is on the Federal employee to keep on top of things:  ask for your PS Form 50, or SF-50, whichever the case may be; call your agency on a regular basis to make sure that you are still on the rolls of the Agency.

If you have been separated from service, a personnel action should have been initiated.  From that moment — when you have been separated from Federal Service — you have one — I emphasize and reiterate — ONE YEAR from the date of separation from Federal Service to file for disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: First Steps

Before you even think about filing for disability retirement benefits under FERS or CSRS, there is often a psychological component which must be overcome:  After a lengthy and loyal service provided to the Federal Government, it is often difficult to “come to terms” with the idea that you can “no longer do” the job you have been so competent at, for the past X-number of years.

Remember, however, that filing for, fighting for, and being approved for disability retirement benefits is not an admission or concession that you are disabled; rather, it is only an acknowledgement that you are no longer a good fit for that particular job.  It doesn’t mean you can’t go out and be productive in some other capacity.

Or, another way to look at it, of course, is as follows:  If you can push yourself and ignore what your mind or body is telling you, and you somehow miraculously reach retirement age, you may have crossed the finish line; but are you in any shape to enjoy that retirement?

Retirement should not be an end in itself; it should be a goal with a context of being able to enjoy the continuation of your life.  Too many people look at the conceptual framework of “retirement”, without stopping to consider what it means.  When a medical condition comes about which impacts your ability to do your job, it is time to pause and reflect:  What are my goals?  Is it time for me to do something else in life?  Don’t just suffer your medical condition; listen to it.

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

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: What It Means to Have the “Burden of Proof”

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits.  Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.

Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be.  The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001). Remember:  you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS disability retirement: What it means to have the “burden of proof”

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits.  Even if the Agency proposes and effectuates a removal based upon one’s medical inability to perform the essential elements of one’s job (thereby invoking the “Bruner Presumption”); nevertheless, the burden of persuasion always remains with the applicant.

Never assume anything; yes, the Bruner Presumption is nice to have, but don’t ever rely upon it to have your disability retirement benefits handed to you, because it won’t be.  The Bruner Presumption “can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement” (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001).

Remember:  you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely,

Robert R. McGill, Esquire

Federal OPM Disability Retirement: Preexisting Conditions

There is still some confusion with respect to the relevance of preexisting medical conditions, or medical conditions which were incurred while working, or outside of the workplace, and the impact of such medical disabilities upon one’s right to file for disability retirement under FERS or CSRS. This confusion is evident from some of the questions I have been recently asked.

Remember that preexisting medical conditions are irrelevant to filing for Federal Disability Retirement benefits, in most cases; the fact that an individual has been able to perform the essential elements of one’s job for many years, but comes to a point in his or her career where the medical condition has been exacerbated, or deteriorated, to the point where it begins to prevent one from performing one or more of the essential elements of one’s job, is all that is needed to be shown.

It matters not that the medical condition “preexisted” one’s Federal service; and, indeed, many of my client’s began working with a VA disability rating, but worked successfully for a number of years, until the medical condition(s) underlying the VA disability rating worsened, or came to a point where it began to impact his or her ability to perform the job functions. Similarly, whether or not the injury or medical disability was incurred while working or while on a skiing trip, is irrelevant.

The primary point and focus in FERS & CSRS disability retirements cases, is that a person has the minimum years of Federal Service (5 years for CSRS; 18 months for FERS), and during the person’s Federal Service, he or she incurred a medical condition such that it prevents one from performing one or more of the essential elements of one’s job.

Sincerely,

Robert R. McGill, Esquire

OPM disability retirement: The very first step

Federal and Postal employees often get a bad rap; yet, what I find in all cases, without exception, is that Federal and Postal employees take great pride in their work. Moreover, they do not want to file for disability retirement — there is a “mental wall” — a desire at all costs not to file for disability retirement, until the physical pain gets too much, or the psychiatric symptoms become too overwhelming.

It is at that critical point — the recognition that he or she is no longer able to continue to work at a particular job; this is the difficult point of self-awareness that must be faced. This is the very first step which must be taken, before one is able to file for disability retirement. And, indeed, I find that Federal and Postal employees are loyal, hard-working, and motivated to work, and to work hard. But there is a point at which one must come to grips with the fact that a particular job A is no longer a good fit for Federal Worker B, with medical conditions C. When these three elements coalesce, it is time for the individual to seriously contemplate filing for disability retirement. Federal Disability Retirement is a benefit which all Federal and Postal employees are entitled to, if he or she qualifies. When the first step needs to be taken, there is never any shame in that — because you have shown your loyalty, your dedication, and your endurance through your medical conditions; there is a point where you must begin to listen to your doctors.

Sincerely,

Robert R. McGill, Esquire