Legal Insider: Opm Disability Retirement Being Considered By More Federal Employees
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
With the rise of the COVID-19 pandemic, many federal employees have recently been giving more consideration to their retirement options. One of the more common forms of retirement matters that we handle involves the legal representation of federal employees in the disability retirement process before the Office of Personnel Management and in the appeals process.
Federal employees filing for disability retirement with OPM are typically covered by either the Federal Employees Retirement System or the Civil Service Retirement System. There are a number of questions that a federal employee should consider as they contemplate whether to file for federal disability retirement. These considerations include, but are not limited to:
1. How serious are the federal employees medical issues ?
2. To qualify, how long is the medical disability realistically expected to last?
3. Can the federal employee survive on a reduced annuity?
4. Are there changes to a federal employees position that can be made to allow the federal employee to continue to work?
5. Do the federal employees medical professionals support the disability retirement application?
Can You Lose Federal Disability Benefits
In general, FERS disability lasts for as long as you remain disabled. Here are three reasons why your benefits may stop:
- Medical recovery: To prove continuing qualification, OPM may require you to receive periodic doctors exams. If evidence shows that you have medically recovered from your disabling condition, your benefit payments will stop.
- Restoration of earning capacity: You will lose federal disability if other sources of income equal 80% or more of the current base pay rate from the position you retired from.
- Administrative recovery: Your benefits will stop if you obtain federal employment in a position equivalent to what you held at retirement.
In addition, remember that non-disability FERS retirement benefits start at age 62. This means your disability payments will cease at that time, and you will be switched over to regular retirement income through OPM.
Making It Appear That Because Social Security Denied Your Application Therefore You Are Not Qualified For Federal Disability Retirement Benefits
The finding will normally appear towards the end of the discussion portion of the denial letter, and will reference it in the following way: Your application for Social Security benefits has been denied. For all of the reasons discussed above, your application for disability retirement is denied.
Such a statement, or any variation thereof, clearly implies that the denial by the Social Security Administration is somehow connected to the validity of OPMs denial. Thus, the argument goes: X reviewed your application. X denied you. Therefore, Y also denies you.
This is a piggy-back argument of OPMs denial being valid because it piggy-backs onto Social Securitys denial. But if that were the case, then 99.9% of all Federal Disability Retirement applications would be denied. Why? Because the law and regulation governing Federal Disability Retirement requires that a Federal Disability Retirement applicant must file for Social Security benefits prior to submitting his or her application to OPM.
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Social Security Disability And Fers Disability Retirement
Beyond the failure of OPM to make cogent arguments in favor of a Federal Disability Retirement application, two areas which have previously been discussed involve the implication arguments of making a statement implying that it has some relevance and justification in denying your Federal Disability Retirement application. Thus, the statement, Your Social Security application was denied stated in a vacuum, may appear as merely an innocent statement of fact.
However, when placed strategically at the end of a Denial Letter from the U.S. Office of Personnel Management in denying your Federal Disability Retirement application, implies that somehow, in some way, the denial of your Social Security filing is further justification in denying your Federal Disability Retirement application.
Again, just because OPM says so, doesnt make it so.
The reverse is, of course, true but OPM will not say so, even if it is so. Filing for Social Security Disability benefits is a requirement which must be satisfied sometime during the process of filing for Federal Disability Retirement under FERS. Most people will be summarily rejected by Social Security because most people who file for Federal Disability Retirement benefits under FERS are still employed, and the earnings-exceeding criteria under SSDI will automatically disqualify you.
Why? Because it makes sense.
Fedlifehacks What Happens If You Become Disabled
What Happens if a Fed Becomes Disabled and Cant Work?
Do you know feds dont automatically have short-term disability insurance?
If youre disabled for less than a year and have exhausted your sick, annual, and any donated leave, you might not be protected from income loss.
Disability is more common than death
1 in 4 Americans age 20 can expect to be disabled for up to a year BEFORE reaching retirement age, due to things like musculoskeletal disorders, cancer, or mental health issue.
If youll be disabled for more than a year, FERS Disability Retirement may help
You will have to apply for Social Security benefits first, and provide proof when applying for FERS Disability Retirement.
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It can take a year or longer to be approved for Disability Retirement
Youll want to be sure you have savings or other plans in place to protect you and your family from loss of income while waiting for approval.
[A an image of dollar bills in a jar.
Do you have an emergency fund?
Consider setting up a saving allotment right from your paycheck to help cover unexpected expenses or loss of pay while disabled.
You may want to consider private disability insurance
Private plans can help cover income loss for disabilities lasting as little as 30-days, or much longer.
If you are still disabled when you reach retirement age, your retirement benefits will start.
If youre injured on the job, you may be eligible for Workers Comp benefits
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Applying For Opm Disability Retirement
According to OPM, you should consider applying for disability retirement when you have already provided your employing agency with full documentation of your medical condition and your agency has thoroughly explored all reasonable options to retain you in a productive capacity, including accommodations and reassignment. If you are in this situation, disability retirement may be a good option.
Before submitting your application, you should review OPMs following eligibility criteria:
- You have completed 18 months of Federal civilian service, creditable under FERS.
- While employed in a qualifying position under the retirement system, you have become disabled for useful and efficient service in your current job.
- The disability is expected to impact you for at least one year.
- Your employing agency must certify that it cannot accommodate your disability in your current position and that you have been considered for any existing vacant positions within the same agency, at the same grade or pay level, in the same commuting area, and for which you are qualified.
*Note: the time limit for applying to OPM may be waived in cases where the disabled individual was mentally incompetent on the date of separation or within one year of that date.
What Can A Federal Or Postal Employee Do To Win On Appeal
While none of the following four steps guarantee you will be granted federal disability retirement, or perfectly protect you from an MSPB finding that, while approved for Social Security disability, you are not entitled to federal disability retirement, following them is the best way to attack OPM’s denial throughout the process.
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How Can I Fast
The Office of Personnel Management recently released some good news. April saw the average processing time for retirement applications drop by two days. Unfortunately, that still means the office was taking a week longer, on average, to process applications than it was in April 2021.
Similarly, the OPM touted a 4% drop in its application backlog. That drop brought the backlog down to an average of 34,500 outstanding applications. However, that number still sits 30% higher than the 26,500 backlogged claims the OPM was averaging one year earlier.
As the average processing time hovers at 87 days through the end of April, these numbers highlight the importance of doing everything you can to make sure you avoid any unnecessary delays.
How Opm Reviews Fers Disability Retirement Applications
OPM reviews on FERS Disability Retirement applications have increased! The Office of Personnel Management was able to make some headway on the retirement backlog last month. The office managed to process a little over one thousand claims more than the number of new claims coming in, which cut the backlog by roughly 9 percent just in time to ring in the new year.
Unfortunately, history indicates there is likely to be a flood of new applications in January, which may set back OPMs progress.This time last year, the backlog of processing retirement claims was about the same as it is this year , and our case managers noticed a slower turnaround time for receiving approvals.
Whats important to understand about these numbers is that they represent ALL federal retirement claims, not just federal disability retirement. There is a small division of OPM that specifically handles federal disability retirement cases. OPM has roughly 16 Legal Administrative Specialists who review FERS disability retirement cases and decide which applications are fit for approval. During the course of a year, this small group of professionals process anywhere from ten to 14 thousand disability retirement applications! Considering the amount of medical documentation, along with the application evidence, that is an expansive amount of information to review.
Message us & find out if you qualify today!
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Why Federal Disability Can Be Denied After An Ssdi Award
The biggest reason that you might receive different decisions — a grant of Social Security disability but not federal disability retirement under FERS or CSRS — is because the legal standards for the two types of disability claims are different.
Social Security definition of disability. Generally, a Social Security disability applicant need only prove that, for at least one year, he or she is unable to engage in any “substantial gainful activity” because of a medical condition that is “medically determinable” by objective evidence. That’s a mouthful boiled down, to be eligible for Social Security disability, you must not be able to perform any gainful work due to a medical condition that will last at least 12 months.
Federal Employees Retirement System definition of disability. A federal disability retirement applicant needs to prove that he or she is unable, because of disease or injury, to perform “useful and efficient service” in his or her current position, and accommodations can’t be made to allow the employee to continue working, and the employee does not qualify for reassignment. This is a little easier to understand. For FERS/CSRS disability retirement, a postal worker or federal employee need only be unable to work in their current job because of a medical condition.
Basic Facts About Fers Disability Retirement
The Federal Employees Retirement System provides retirement and disability benefits to eligible workers. If you become disabled, you may be eligible to receive FERS disability retirement payments which are different from regular retirement benefits. There are specific requirements that need to be met before you can qualify for federal disability retirement benefits and the amount you receive can vary based on your age, length of service, earnings and whether you also receive Social Security disability benefits. Heres more on how these benefits work and who may qualify for them.
A financial advisor can give invaluable guidance as you sort through your options for retirement.
FERS Disability Retirement Benefits, Explained
The Federal Employees Retirement System covers eligible federal workers and U.S. Postal Service employees. This program offers several retirement benefit options, including:
Disability retirement benefits are designed for federal or Postal Service employees who have become disabled and are no longer able to work. Specifically, the federal Office of Personnel Management states that employees should consider applying for disability retirement only after you have provided your employing agency with complete documentation of your medical condition and your agency has exhausted all reasonable attempts to retain you in a productive capacity, through accommodation or reassignment.
The Bottom Line
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Four: Submit A Copy Of The Award Letter Granting Social Security Disability
Fourth, always provide a copy of the Social Security decision granting you disability. But there may or may not be a need to give your entire Social Security Disability application and supporting medical documentation to the OPM or the MSPB — you should always consult with a federal disability retirement lawyer before giving too much medical information to OPM or the MSPB.
Federal Disability And Social Security
Your approval for federal disability retirement depends partly on you applying for Social Security benefits. Fortunately, you can still qualify for federal disability even if youre denied Social Security benefits. Be aware that if your application for Social Security disability is withdrawn for any reason, your federal disability application will be dismissed.
Many federal employees are approved for both Social Security and federal disability. If this happens, you can expect to receive your full Social Security benefits along with a reduced disability annuity from the FERS program.
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Things You Can Do To Keep Things Moving Forward
If the OPM can stall because of things other agencies door fail to dowhat can you do about it? As it happens, there are several steps you can take:
- Make sure you get all the required evidence to support your eligibility
- Make sure that evidence is submitted properly
- Contact your agency and double-check that all the information you have is correct and matches their records
- Double-check that youve included all referenced enclosures
- Contact the OPM on a regular basis to check on the status of your claim
All these steps can help keep things from stalling. They may also help you avoid a denial. While its possible to appeal a denial, appeals add even more time to the process.
Do This To Boost Your Opm Disability Retirement Approval Rate
If youre a federal worker thats suffered an injury so severe or have an illness that show no signs of letting up or have been told that it is most likely going to be chronic and ongoing, it may be wise to think of applying for federal disability retirement. This is a retirement compensation plan instituted and overseen by OPM, and it allows for individuals who have suffered injuries or are living with a chronic, disabling illness to go on permanent retirement while receiving compensation until a certain age.
Are you looking for more information on OPM disability retirement? Are you wondering how do I apply for OPM disability retirement? or How is FERS disability retirement calculated? We can help you with these and other pressing OPM disability retirement questions for FREE from a legal standpoint. Please call us NOW at 1-855-233-3002 to learn more about OPM disability retirement from one of our friendly and experienced OPM disability attorneys to know what you qualify for depending on your unique health circumstances.
In order to qualify, you must first file an application with the Office of Personnel Management or OPM where your claim will be looked over to determine whether your injuries or illness are severe enough to qualify you for the program.
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The Opm Disability Retirement Appeals Process
As you can see, applying for federal disability under the Federal Employee Retirement System is not an easy task.
First, you need to collect and complete seemingly endless FERS disability retirement forms. Then you need to submit these forms with all proper documentation within the applicable deadlines. After that, you have to wait for the decision from the Office of Personnel Management.
OPM is a large organization and is responsible for over two million employees. Consequently, mistakes are made.
Additionally, it is not uncommon for a doctor or other medical professional to make mistakes when documenting your medical condition, such as incorrect dates or an inaccurate description of how your condition progressed. When mistakes are made, people who should be granted disability retirement benefits are rejected.
If OPM denies your disability retirement application, it can feel like your financial stability and future, in general, are threatened. When you have spent so much of your time and energy, it is often devastating to receive the news that denied your disability application.
However, if you applied for disability retirement and were denied, you may have the option to appeal OPMs decision. In fact, there are several routes you may take after receiving an application denial from OPM.
Keeping Your Fers Disability Retirement Benefits
If theres a change in your disability status that could affect your ability to continue receiving federal disability retirement benefits. The Office of Personnel Management can ask you to submit routine updates on your medical condition to verify that your disability condition hasnt changed. You have to pay for any medical exams out of pocket and if you fail to complete one as requested, your benefit payments could be suspended.
If youre under age 60, FERS disability retirement benefits are automatically terminated if:
- Youre determined to be fully recovered from a disability
- Your income from wages and self-employment is at least 80% of the current rate of basic pay from the position you retired from
- You become re-employed in federal service in a position thats equivalent to the one you retired from
You can, however, get your benefits back if your disability resumes or you no longer exceed the 80% cap on earnings.
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