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

CSRS & FERS Disability Retirement: Interaction with OWCP/DOL

I receive calls periodically as to whether it is of greater advantage to remain on Worker’s Comp (Department of Labor, Office of Workers Compensation Program — “OWCP”) as opposed to going out on OPM Disability Retirement.  My answer remains the same:  OWCP is not a retirement system; OPM disability retirement is indeed that — it is a retirement, where one is separated from Federal Service, and you go out and do what you want to with your life.  Every decision has consequences; every act which we engage in has inherent residual effects, and we have to balance such effects and consequences.  Thus, while OWCP benefits pay a higher rate (75% tax free with a dependent; 66 2/3% tax free without a dependent), there are restrictions:  You must comply with any and all requests (or demands) of the Department of Labor; you cannot go out and get another job, or start another career — because you are deemed “disabled” and are being paid for it.  On the other hand, OPM disability retirement pays less (for FERS, 60% the first year, 40% every year thereafter), but you have the freedom of retirement — you may go out and start another career, and make up to 80% of what your former position currently pays, without losing your disability annuity.  These — and many other factors — are some things to consider when weighing the differences between OPM disability retirement, and receiving OWCP/DOL benefits.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Agency Actions, Part I

Can adverse agency actions to terminate a Federal employee impact a potential disability retirement application?  The short answer is “yes”, but the longer answer would have to consider multiple factors:  what is the underlying basis of the adverse action?  Does a person’s medical conditions (often psychiatric, cognitive dysfunctions impacting upon less than stellar performance ratings, or perhaps impacting upon the essential elements of one’s job in other ways) explain, in whole or in part, the “adverse” nature of the action?

Also, has there been a “paper trail” established with respect to informing the Agency of medical conditions, such that it can “explain” — again, in whole or in part — the apparent basis of the adverse action?  Is the Agency open to negotiating a material change in the proposed removal — i.e., from one which is adversarial (and therefore would be appealed to the Merit Systems Protection Board) to one based upon one’s medical inability to perform the essential elements of one’s job (with a stipulation that no appeal will be filed, thereby saving the Agency’s time, resource, and personnel).

It is important to “get involved” in the process of any contemplated Agency action — early.  If the Agency puts an employee on a Performance Improvement Plan (PIP), it is time — in fact, overdue — to become active in the future plans for filing a disability retirement application.

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