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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Sometimes Less is More – FECA and FERS

Sometimes Less is More - FECA and FERSOne common misconception is that if one is receiving benefits under FECA that there is no reason to apply for FERS disability. The reason people believe that is because one cannot receive FERS benefits while receiving FECA wage-loss benefits. In almost every situation, it makes sense for an injured worker to file for FERS or CSRS. The primary reason for this is that one can become entitled to FERS/CSRS while continuing to receive benefits under FECA. The FERS/CSRS benefit can come into play in a variety of situations. The first is if OWCP determines that a work-related injury has healed or is not causing any disability. This commonly occurs after a second opinion examiner determines that the claimant’s problems are related to age and that the industrial injury no longer plays any role in the claimant’s disability. This can happen at any time, sometimes even after decades of a claimant receiving benefits under FECA. Having something to fall back on is very valuable.

In addition, under FERS/CSRS, one can make up to 80% of the current pay rate of the position they retired from and retain his or her annuity. OWCP takes a dollar for dollar deduction if an injured worker returns to work. Sometimes, injured workers can resume some sort of employment, even if it is part time or doing something other than what they did for the government. Even a moderate salary from private employment coupled with a disability retirement annuity can exceed that which one would get from workers comp. Lastly, if one is eligible for FERS, and they have an injury that would entitle them to a schedule award, they can receive both the schedule award and the annuity from FERS/CSRS at the same time. The bottom line is, don’t dismiss FERS/CSRS simply because you are receiving wage loss comepnsation from OWCP. An employee can file at any time that they remain on the agency rolls and must file within one year of separation . There are almost no exceptions to the one year requirement, so make sure to get it done in that time frame.

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