FERS and CSRS Disability Retirement, OWCP Benefits, and SSDI: Comparisons and Contrasts

By on August 10, 2012 in Current Events, Human Resources with 12 Comments

Can the chasm between language and reality be such that one can believe the statement of a man while recognizing that nothing in the  spoken words is reflected in the world around us?  Is it a lie to state that the far side of the moon grows no morning glories, because it implies that the near side can?  Must language be so precise as to have a 1-to-1 ratio to an objective world, or should it retain such flexibility as to embrace poetry and fiction?

                    — From, Timelessness in Language and Reality

Bertrand Russell’s mischievous challenge to meaningful statements, and therefore an attempt to challenge the strict conceptual identification of truth and falsity, is still a daunting task to refute.  The statement, “The King of France is bald”, shattered any notion that words must be constrained by reality, and is a truism which must be acknowledged and contended with.  As there is no King of France, and as the King of France, since nonexistent, is not bald, and yet we can all understand and acknowledge the truth of such a statement, regardless of its nonsensical content – so we must contend with such malleability of language in life, social discourse, and law.

In attempting to maneuver through the complexities of an endless array of Federal Agencies and bureaucracies, it is important to adhere to the correct application of language.  For instance, assume the following statement by a Federal employee:  “I just filed my OPM disability retirement and got a denial from London, Kentucky.  They told me that I could ask for reconsideration for my Social Security Disability benefits, and that I might also be entitled to a scheduled award, once I get a CSA number.” 

The sequence of conceptual assertions in such a declarative statement, at first impression, appears to make sense; however, there is a cross-over of at least three (3) different Federal Agencies, representing separate administrative processes, providing for different benefits and requiring distinctive eligibility requirements, to wit:  any reference to London, Kentucky, would imply a letter from the Office of Workers’ Compensation Programs under the Federal Employees’ Compensation Act; all OPM (U.S. Office of Personnel Management) disability retirement applications are filed in Boyers, Pennsylvania; Social Security benefits normally have nothing to do with OWCP except for offsetting payment features; and receiving a scheduled award from OWCP is not dependent upon getting a CSA number.  Thus, while the language used may retain a logic in communicating a sequence of events, the conceptual constructs represented by the language are clearly confused.

It is always important to get the nomenclature right – if not for the substantive purpose of filing for the right benefits with the appropriate offices, then at least for the lesser purpose of not sounding confused.  There are numerous Federal programs which, collectively, comprise a generous array of benefits accorded to all Federal and Postal employees, but the obvious prerequisite to successfully filing for any compensatory benefit program is to have a sufficient understanding and knowledge about each, and more importantly, to distinguish between one from another.

The three (3) primary compensation programs available to Federal and Postal employees are:  Federal Disability Retirement benefits under FERS or CSRS, from the U.S. Office of Personnel Management (OPM); Social Security Disability Insurance (SSDI); and the Office of Workers’ Compensation Programs (OWCP) administered under the Federal Employees’ Compensation Act (FECA).  Additionally, there are VA Disability benefits for Veterans who qualify, but obviously this latter compensation program is available to a more limited universe of Federal or Postal employees.

Enough has been written by the undersigned writer concerning the definitional requirements necessary to qualify for Federal Disability Retirement benefits from OPM.  In shorthand form, for those who have not followed prior writings, one must be, or have been within one (1) year of filing for the benefit, a Federal or Postal employee under FERS (Federal Employee’s Retirement System) for a minimum of 18 months or under CSRS (Civil Service Retirement System) for a minimum of 5 years (the latter is assumed, inasmuch as CSRS essentially ended around 1984); a medical condition must be proven, which prevents the Federal or Postal employee from performing at least one or more of the essential elements of one’s job; and the Agency must not be able to reassign the Federal or Postal employee to another position at the same pay or grade, or otherwise be unable to accommodate him or her (under the technically strict definition of “accommodations” as propounded in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). 

By contrast, under the rules governing Social Security Disability, one is eligible and considered disabled if three basic components are met (the three elements are all necessary for qualification and are conjunctive, not disjunctive): 

  • The applicant for Social Security Disability cannot do the work that he or she did before
  • It is determined that the applicant cannot adjust to other work because of the medical conditions, and
  • The medical disability has lasted, or is expected to last, for at least one year, or to result in death.

Indeed, in many denials of Social Security Disability applications, it will specifically state that while they have determined that you “cannot do the work that you did before”, nevertheless, because you are able to do other kinds of work, you therefore do not qualify for Social Security Disability benefits.

Further, in comparison, under FECA (Federal Employees’ Compensation Act), all kinds of injuries, including diseases caused by employment, are covered if they occur in the “performance of duty”, but benefits cannot be paid if the injury or death (a) is caused by willful misconduct of the injured employee, (b) by intent to bring about the injury or death of oneself or another, or (c) by intoxication of the injured employee.  Thus, causality is an issue – whether the individual suffered the medical condition or acquired the occupational disease in the performance of duty, and how that performance of duty is defined (i.e., was he on his way to work, in a government vehicle, on his lunch hour, on premises or off premises, on his way as an official agent while off premises, etc.)

Note that, for a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS, SSDI, or OWCP benefits, the following hypothetical would result in quite differing qualification outcomes for the employee:  Federal employee is on vacation on some remote island in the Caribbean; he pulls out a knife with the intent of harming his wife’s lover; as he lunges forward, he trips and falls, and the knife severs the pinky of his left hand.  He goes to the hospital, where he is surgically repaired (they perform a sophisticated form of microsurgery and reattach his left pinky); after 4 months in recovery and rehabilitation, he attempts to go back to his position with the Department of Energy as a Nuclear Scientist whose sole duties require the use of the pinky of his left hand in order to manipulatively isolate radioactive isotopes of the X-NY to the 10th power type, which can only be accomplished through the use of the pinky finger of the left hand of a qualified Nuclear Scientist.

Note the outcome from the various pockets would be quite different:

  1. Under a FERS or CSRS Disability Retirement application submitted to the U.S. Office of Personnel Management, because the Federal employee in the hypothetical can no longer perform one of the essential elements of his job (isolate the radioactive isotope with his left pinky finger), he would qualify for Federal Disability Retirement benefits.  Motive, intent, causality – the “how” he hurt his pinky – are all irrelevant.
  2. Under SSDI, because the Nuclear Scientist “cannot do the work that you did before”, nevertheless, because he is clearly able to do other kinds of work, he would therefore not qualify for Social Security Disability benefits.
  3. Under OWCP/FECA, there are a number of issues inherent in the hypothetical which would likely disqualify the Federal employee, including the fact that his actions resulting in the injury did not occur in the “performance of duty”; the injury was caused by “willful misconduct”; the injury occurred in the course of intending to bring about the injury or death of another; and in all likelihood, intoxication was also an issue.
  4. As for VA benefits, the door to such an administrative process may be slightly ajar, if the Federal Employee (adding to the hypothetical that he was a former Army Ranger) had previously injured his left pinky parachuting during training, and his more recent injury has exacerbated the already service-connected injury.  This may be a stretch, but leave it to attorneys to engage in such linguistic gymnastics.

Ultimately, the purpose of such an exercise in presenting an outlandish hypothetical is to illustrate differing conceptual distinctions, and by comparing and contrasting, to clarify inherent confusions which may arise.  The loose use of language can have deleterious consequences, unintended or otherwise; and with the vast and indiscriminate dissemination of information via the internet, it is becoming increasingly important to use, apply and practice precision in the utilization of language as a communication tool.  Otherwise, accessing eligible benefits may be prevented; deadlines for applying may be overlooked; confusion over which legal criteria applies may be an obstacle to a successful outcome.  As language is the key to knowledge, so the precise usage of such an invaluable tool is the access point of wisdom.

© 2016 Robert McGill. All rights reserved. This article may not be reproduced without express written consent from Robert McGill.

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About the Author

Attorney Robert R. McGill specializes in federal disability retirement cases helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, visit his OPM Disability Retirement blog.

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