OPM Disability Retirement: A 5-Step Pathway to Success

— In battle, what is a plan, but a piece of paper? But as thought precedes action, so the army which moves with thought, acts with knowledge.

— From Kao Totelin, War and Strategy


The essential principle behind Federal Disability Retirement is twofold: (A) recognition that individuals may become disabled, through medical conditions or injuries which impact one’s ability to continue in the chosen vocation in the Federal Sector, combined with (B) a progressive acknowledgment that the mere fact that one is disabled, should not mean that the disabled individual cannot potentially remain productive in another vocation, capacity, or employment sector. It is the combination of these two principles which forms the foundation of why Federal Disability Retirement is a compensatory employment program in the Federal Sector which is not only worthwhile, but far-reaching in its recognition of the value of work, and the incentivizing of man’s desire to remain productive.

There are few programs like it. In this day and age, when productivity is squeezed from every worker while simultaneously reducing and minimizing superfluous addendums which are considered non-essential, the competitive market demands much from the American Worker of today. The workforce of today must be attuned not only to a local market, but to international pressures and laws; of multi-national corporations which sell across state and national borders; of the internet market requiring global competitiveness. In such a context, there is very little room for sympathy towards workers who cannot remain fully productive.

The harsh reality, however, is that there will always be workers who become injured, whether temporarily or permanently; and further, that some workers will suffer from medical conditions which are not incurred as a result of a workplace incident or accident, but merely because the human body and mind are penetrable by disease, deterioration and progressive destruction from repetitive work, misuse and abuse. What happens when a medical condition impacts a worker’s ability to perform a particular kind of work, and how society treats such workers, reflects upon the values which a society embraces.

The road to attaining a Federal Disability Retirement annuity from the U.S. Office of Personnel Management can be a hard-fought battle, replete with unexpected pitfalls, wrong turns and achieving unintended consequences, unless the battle plan is thoroughly and thoughtfully formulated. Here is a skeletal outline of the needed strategy to get from Point A (being a Federal or Postal Worker who has a medical condition, with a minimum of 18 months of Federal Service under FERS, or 5 years under CSRS) to Point B (receiving a Letter of Approval from the U.S. Office of Personnel Management), delineated through a necessary narrative of needed elements, as well as punctuated by questions which should be posed throughout the process:

First, there is the need for self-recognition: sheer willpower can often win out against physical pain and loss of executive and cognitive functioning for many years. What price is paid for such self-denial? Often, the insidious act of ignoring and avoidance of debilitating, progressively deteriorating dysfunction, taking its toll upon one’s body and functional capacities. But Federal and Postal Workers have historically been able to quietly endure pain and suffering; that is nothing new. Self-recognition and an acknowledgement that it is time to change course is the first step.

Second, an understanding and appreciation of the lengthy administrative process, requiring a certain amount of preplanning, and preparing one’s self for the long haul. While everyone believes that one’s own case is a “sure thing”, the reality is that because the U.S. Office of Personnel Management is an independent agency which applies a legal criteria in the analysis, evaluation and judgment of each Federal Disability Retirement application, the fact that a person experiences severe pain, or suffers from debilitating migraines or is cognitively handicapped because of psychiatric issues, does not necessarily translate into a persuasive argument for an agency which neither knows the individual, will never meet the worker, nor “feel the pain” of the particular applicant. Remember: a Federal Disability Retirement is a paper presentation to the U.S. Office of Personnel Management, and in order to win, one must prove one’s case – through viable and effective documentation.

Third: Get the proverbial ducks lined up. Medical support; what elements must be included? Which doctors should be approached? What medical conditions should be listed? Which are the central medical conditions as opposed to the peripheral ones? How does one create a “nexus” between the medical condition and the essential elements of one’s job. What are the foundational elements of the Federal or Postal position, and how can it best be described such that the “bridge” is created between the medical condition and the impact upon the essential elements of the positional duties required? Many questions; each must be answered in full, and effectively.

Fourth, what can the Federal or Postal Worker expect from one’s agency? What will the reaction be? Will there be light duty to carry one forth, or will FMLA protect one sufficiently, as well as discretionary approval of continuation of LWOP? If the Federal or Postal Worker has already undergone a Performance Improvement Plan (a “PIP”), is it too late to file for Federal Disability Retirement? [Answer: No] Can there be an impact upon the Federal Disability Retirement application? [Answer: Possibly] Will a removal help or hurt the application for Federal Disability Retirement? [Answer: It depends].

Fifth: What should be included in the Statement of Disability? Can a continuation sheet be added to the form itself – SF 3112A? Am I limited to what the question asks on the form? How much history of my medical condition should be included? What about other actions engaged in which contributed to the medical condition, such as EEO actions, retaliatory measures by the agency, discrimination suits and one’s status as a whistleblower – are they relevant at all? There is so much information and potential misinformation “out there” in the world of electronic communication, so how is one to know what is reliable and accurate, as opposed to what is not?

There are other elements in the successful strategy for getting from point A to end-game B; but the “sixth” point of a successful strategic path towards attaining a future based upon Federal Disability Retirement, is to consider the extent of effort to be expended in filing for Social Security Disability benefits. All Federal and Postal employees under FERS must file, by the time of an approval received from the U.S. Office of Personnel Management, for SSDI benefits, with a receipt submitted to OPM showing that it has been filed.

The requirement to file for SSDI has been met once a receipt of filing has been shown. Beyond the receipt, however, is the need to make a determination as to how hard one wants to fight for SSDI benefits. Such a consideration should take into account multiple factors, including: (A) Are you considering working in the private sector? Under FERS Disability Retirement, an annuitant is allowed to make up to 80% of what one’s former Federal position currently pays, in addition to the Federal Disability annuity one receives. And (B) on the other hand, SSDI has a much lower threshold of allowable earned income, and so if the Federal annuitant wants to work in the private sector, trying too hard to obtain SSDI may not be to one’s benefit. Further, (C) ultimately, it is probably the extent of the severity of one’s medical condition, and the consequential limitation of being able to work again, which will determine the necessity of trying to obtain SSDI benefits. Normally, even with the offset with FERS disability annuity (100% offset for the first year, and a 60% offset every year thereafter), the combination of both will generally net the annuitant more than FERS alone.

Preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management is an intermediate goal; the goal of finality is to secure one’s future, and maintaining the flexibility to seek and obtain private-sector employment should remain a part of one’s potential plans for the future. Formulating a plan to attain the goals one seeks requires careful analysis of the particular situation of each individual. Often, being hit with a medical condition results in a sense of panic and loss of proper perspective, like a ship whose compass has gone awry. By taking some time to prepare a strategic pathway to get from one’s present position, to the end-game needed in order to receive an approval from the U.S. Office of Personnel Management, whether the Federal employee is under FERS or CSRS, one can be secure in the knowledge that the road forward will be less traumatic than initially anticipated.

I am a Federal Disability Retirement Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:

Sincerely,

Robert R. McGill, Esquire

 

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