Research Notes

Common misconceptions about federal disability retirement under FERS

Contribution, not cause, is key in FECA cases

Common misconceptions about federal disability retirement under FERS

Common misconceptions about federal disability retirement under FERS

There are many reasons why injured federal employees do not believe they are eligible for disability retirement under FERS.  Most federal employees who have worked in a position covered by FERS for at least 18 months are eligible for federal disability retirement under FERS if they have a medical condition that prevents them from carrying out the full duties of their official position. Here are some common misconceptions about eligibility for federal disability retirement under FERS:

1.       You do not have to be totally disabled from all work to qualify for federal disability retirement under FERS.

Per 5 USC §8451(a)(B), an employee is considered disabled if they are found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee’s position. There is no requirement that an injured federal worker be found totally disabled from all work in order to qualify for federal disability retirement under FERS.

2.       Even if you are fired for cause, you can still qualify for federal disability retirement under FERS.

Removal for misconduct does not preclude an individual’s receipt of disability retirement benefits if he can show that he was disabled from performing useful and efficient service in his position prior to the effective date of his removal. Delceg v. OPM, 100 M.S.P.R. 467 (2005). Please also see Henderson v. OPM, 2008 M.S.P.B. 191, August 4, 2008. In that case, handled by our firm, the appellant was removed from service after pleading guilty for distribution of marijuana. We were able to prove that he was disabled prior to his removal and he was granted disability retirement benefits under FERS.

3.     If you are working light duty, you may still be able to qualify for FERS disability retirement.

Any evaluation of useful and efficient service for disability purposes must be with respect to the employee’s official position, not an unofficial light duty assignment. Marino v. Office of Personnel Management, , 243 F.3d 1375 (Fed. Cir. 2001). This applies to postal workers seeking disability retirement under FERS as well. See Chavez. v. OPM, 11 MSPR 69 (2009).

4.       You can qualify for FERS disability retirement on the basis of non-work related injuries.

OPM will consider all disabling conditions whether they are on-the-job injuries, injuries accepted by OWCP as compensate, or whether they are completely unrelated to your federal service. In fact, you can establish entitlement to federal disability retirement under FERS even if the medical condition that is causing your disability predates your employment, providing you can show that you became disabled due to the medical condition after employment began.

5.       After retiring on FERS disability retirement, you can work for a non-federal employer and make up to 80% of the current rate of pay for the position from which you retired –  and still retain your disability retirement annuity!

Unlike social security or FECA wage loss claims, there is no deduction taken from a disability retirement annuity under FERS for wages earned in non-federal employment following disability retirement. As long as the annuitant earns less than 80% of the current rate of pay for the position from which she/he retired, her/his annuity will be unaffected. There are other limitations concerning the type of work that can be performed without impacting FERS disability retirement benefits that should be discussed with a FERS disability retirement attorney prior to undertaking employment following disability retirement.

As discussed above, there are many exceptions and nuances to FERS. Anyone considering filing a disability retirement application under FERS would be well served by consulting with a competent, experienced attorney well-versed in handling federal disability retirement applications. – DMG 4/9/14

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Dan Goodkin Speaks at OWCP Litigation Group Conference

Contribution, not cause, is key in FECA casesIn May 2013, a group of federal disability attorneys belonging to the OWCP Litigation Group met in Washington, D.C. for a two day seminar on federal workers compensation. Dan Goodkin of the firm Steven E. Brown, PLC presented on two topics, Strategies for  Emotional or Stress Claims in the Federal Workplace and a second lecture on Interactions Between FECA Claims and EEO Complaints/ MSPB Appeals. The conference was attended by many of the most well known and respected federal disability lawyers in the country and included a discussion panel with the Chief Judge of the Employees’ Compensation Appeals Board.

Emotional claims, often referred to as stress claims, under the federal employees’ compensation act can often be very complicated and difficult cases to win. Many federal disability attorneys avoid stress claims or claims for an emotional condition as they tend to be contentious, difficult claims to win. Federal  agencies are likely to challenge any claim that alleges wrongdoing on the part of the agency or its employees. As anyone who has searched for an attorney who handles FECA claims knows, there are very few federal disability lawyers  and even fewer who will represent claimants in stress claims.

Many things that occur in the federal workplace are not covered under FECA. For example, administrative actions, such as disciplinary actions, monitoring employee behavior and bad performance appraisals are not covered under FECA unless the claimant can prove error or abuse on the part of the agency. This is difficult as the burden is on the claimant to prove that the action was erroneous or abusive by providing evidence that consists of more than the claimant’s allegation. Typically, OWCP will look to see if another administrative body, such as the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board has entered a finding of discrimination or has overturned the disciplinary action, or if the administrative action was found to have violated a collective bargaining agreement as the result of a union grievance. Absent an administrative finding of wrongdoing, many stress or emotional claims fail if the basis of the claim was an administrative activity.

An outline of activities in the workplace that are covered under FECA, and those that are not, is included below for download.

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Ethics in FECA representation

Some folks think that is an oxymoron to say “ethical Lawyer.” A frequent questions I am asked when I tell someone I handle workers compensation cases is, “How can you help all those people scam the system?” The answer is pretty simple. We don’t take cases if we know or suspect that someone is faking an injury, lying about the cause of their injury or trying to conceal evidence that is harmful to their case. If we take a case, it is because we believe in the client and believe they deserve the benefits they are seeking. We have also ceased representation when obvious evidence of dishonesty has  come to light.

People who abuse the federal workers compensation system harm every person who was legitimately injured on the job, those who need medical care and those who truly cannot go back to work. As discussed in a previous blog entry, such behavior leads claims examiners and politicians to believe that everyone is trying to cheat the government. These claims examiners then accuse claimants of faking injuries or hatching elaborate schemes to avoid going back to work. Politicians then begin to believe that dramatic changes to FECA are needed to prevent abuse when the fact is that only a tiny percentage of claims are found to be fraudulent.

Now, in our experience, the number of people that are trying to scam the system is incredibly small but it does happen.  Almost without  exception, our clients are hard working people who would much rather be back at work than sitting at home in pain. So, I can accept that occasionally we do help someone who might be scamming us and the system if it means that we help the vast majority of the people who do need and should get our help.

DMG 12-5-12

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