10 Common Mistakes Made in a Federal Disability Retirement Application

March 30, 2020 10:07 AM , Updated April 10, 2020 10:56 AM
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Book sitting on a desk with the words 'disability law' on it next to glasses, a pen and stethoscope

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Federal Disability Retirement is a benefit provided to all Federal and Postal employees under FERS, who have a minimum of 18 months of creditable Federal Service. It is tantamount to an “insurance policy” in that, in the event of an injury or a medical condition which prevents the Federal or Postal employee from performing one or more of the “essential elements” of one’s Federal or Postal job, one can become eligible for an early retirement, with a lifetime annuity. 

Like an insurance policy, the “fine print” of the benefits accessible are rarely reviewed until it is needed. And — unlike Worker’s Compensation benefits — the disabled Federal or Postal worker need not show causation that the injury or medical condition was work-related.

An insurance policy is generally purchased in order to secure a peace of mind. We hope to never have to use it.

When a fire destroys or ravages a home, we rummage desperately in the pile of paperwork seeking to find the homeowner’s policy that we purchased years ago, in an effort to discern the unread details of what is covered and what is not. We might suddenly find out that we have a higher “deductible” than previously thought. Or, that there are some “exceptions” which result in non-coverage in certain circumstances.

Similarly, in an automobile insurance policy, there are often contingent clauses which may require greater scrutiny before one files a claim. 

The point is, we rarely study the details of such policies until they are needed, when in fact we should. Federal Disability Retirement is like an insurance policy, and while no one wants to have to “activate” the policy, it provides for one’s peace of mind that it is there to “protect” the Federal or Postal worker in the event of need.

There are, however, common mistakes made when considering filing for Federal Disability Retirement benefits. While there are innumerable mistakes that can be made in preparing and submitting a Federal Disability Retirement application, this article will limit them to 10 common ones seen over the many years of practicing Federal Disability Retirement Law. They are:

“Fill out the forms and send them my medical records”

This is, certainly, the “basics” in filing for Federal Disability Retirement benefits. Perhaps if the 1-year Statute of Limitations is about to expire in a matter of days, you may be forced to take this approach.

With the exception of such an impending circumstance, however, it is never advisable to trust that what the doctors send in to the U.S. Office of Personnel Management will necessarily help your case; or that the necessary legal nexus will be established between your position description and the medical conditions described.

Be proactive in affirmatively putting together an effective Federal Disability Retirement application. Be involved in every phase of the process — including compiling the proper medical documentation.

I have to wait for Social Security, then file

For some reason, this mythology still resides in too many corners of the Internet. Yes, as part of the FERS Disability Retirement process, the applicant must file for Social Security Disability benefits. However — it is the mere filing (and proof thereof) that is required, and not an approval.

Somehow, the error-filled belief that an approval for Social Security benefits must precede the filing of a FERS Disability Retirement application continues to reside in many corners of the Information Age, but to follow such a flawed belief may result in waiting until the Statute of Limitations has passed (See Common Mistake #1, above).

I already qualify for Social Security; therefore, I should automatically qualify for Federal Disability Retirement benefits

The logic behind such a belief has some credence, as the criteria for Social Security eligibility is governed by a higher standard of “total disability”, whereas FERS disability retirement requires merely that one proves that an essential element of a job cannot be performed.

Indeed in Trevan v. Office of Personnel Management, 69  F.3d 520 (Fed. Cir. 1995), the Court required that ‘OPM and the Board must consider an award of  Social  Security disability benefits, and any underlying medical data provided to OPM by the Social Security  Administration or the employee, along with any other evidence of disability, in determining entitlement to FERS benefits.’ Id. at 526 (emphasis added). Thus, what is “logically true” must still be proven, as with most things.

The common mistake made, then, is that the mere qualification under SSDI automatically leads to a FERS disability retirement approval, and that is just not the case.

“It is obvious I can’t work. This is a slam dunk.”

There are no “slam dunk” cases in Federal Disability Retirement. Furthermore, Federal Disability Retirement is an administrative process and benefit which must be proven by a preponderance of the evidence.

The recognition that a person can no longer work is a subjective statement of fact. Such a fact may even be accompanied by a medical diagnosis. That alone does not qualify a Federal or Postal worker for Federal Disability Retirement benefits. It may be a start — and maybe even a good start; but it is still lacking a “nexus” between a factual assertion and proof by a preponderance of the evidence.

“The VA deemed me disabled, so I must qualify”

Certainly, a high percentage-rating ascribed by the Department of Veterans Affairs — of even one of “unemployability” — can be a persuasive piece of evidence in support of a Federal Disability Retirement application, and should be used as further proof in applying for the benefit.

In Simpkins v. Office of Personnel Management, 2010 MSPB 52, DC-844E-09-0623-I-1, decided on March 18, 2010, the U.S. Merit Systems Protection Board stated that “OPM must consider an award of benefits by the DVA (Department of Veterans Affairs) based on the same medical conditions as the appellant’s disability retirement application…” Note, however, the pertinent and relevant portion of the opinion — “must consider”. Yes, a DVA rating can have some persuasive impact, but is never determinative.

“I think; therefore, I am.”

Almost everyone is familiar with Descarte’s philosophical proof for one’s own existence.

In Federal Disability Retirement Law, a similar assumption goes like this: “I have a medical condition; therefore, I must be able to qualify for Federal Disability Retirement benefits.” It is assumed that the first part of the statement is true when a person begins to prepare a Federal Disability Retirement application.

However, it is the second, dependent clause, that often defeats a Federal Disability Retirement application at the outset. A Federal Disability Retirement application is a “paper presentation” to the U.S. Office of Personnel Management — the Federal Agency that reviews and adjudicates all Federal Disability Retirement applications.

Do not assume that, merely because you suffer from a medical condition and, further, because you are having difficulties performing your job, that therefore you will qualify for Federal Disability Retirement benefits. Your case must be proven. A “nexus” must be formulated and coherently presented in showing that, as a result of the medical condition, you are no longer able to perform all of the essential elements of your current position in the Federal government or the Postal Service. Much preparatory work goes into satisfying the legal criteria, and a mere diagnosis evidencing a medical condition is not sufficient to satisfy that criteria.

“I can resign and then file a disability retirement application.”

Technically, that is true. Under Federal Disability Retirement Law, a person has up until one year after separation from Federal Service to file a Federal Disability Retirement application.

However, specific problems will arise in filing a Federal Disability Retirement application in this manner — not the least of which is, whether you can prove that an accommodation could have been provided for your medical disability; whether a supervisor’s statement can be obtained after your separation from service; and whether your medical statements and treatment notes will support your application — prior to your resignation from Federal Service.

“The doctors will surely support me”

This is a classic assumption. You may have been treating with your doctor for over 10 years, and because of the longevity of the patient-doctor relationship, the assumption that your treating doctor will take the time to do the necessary paperwork is often taken as a “given”.

Don’t assume; instead, have a blunt discussion with your doctor before going down the road of a Federal Disability Retirement application.

I am having difficulties doing my job

“Difficulty” is not a synonym for “Unable to” or “Can’t”. If you have no deficiencies in your performance, conduct or attendance, then ask yourself the following question: How would I argue that I cannot perform one or more of the essential elements of my job if my own agency continues to give me stellar performance ratings? T

here is, certainly, a “fourth’ criteria in order to become eligible for Federal Disability Retirement — that of incompatibility between the medical condition and the essential elements of one’s job. This can certainly happen, where a medical condition reaches a stage of acute debilitation such that a Federal or Postal employee must file for Federal Disability Retirement benefits. In such a case, however, it is imperative that one garners the support of one’s treating doctor, in order to prove the incompatibility criteria.

“I can file for early retirement, then file for disability retirement”

Many Federal or Postal employees choose this option with the idea that they can receive some income while waiting for the lengthy process of Federal Disability Retirement to complete its course.

It is true that the statute of limitations in filing a Federal Disability Retirement allows for this methodology. However, if this particular path is taken, you must make sure that it doesn’t look like filing for Federal Disability Retirement benefits is merely an “afterthought” as a means of getting more money from your annuity. There are ways to do this, and it all comes down to making sure that the medical treatment records support such a move.

Summary

Common mistakes are made precisely because mistakes made are common to us all. The trick is to minimize such mistakes, thus maximizing the chances for success in filing a Federal Disability Retirement application.

Mistakes made can often be categorized into three identifiable types:

  1. Lack of knowledge,
  2. Wrong knowledge based upon error-filled or incomplete information, and
  3. With knowledge, but failing to heed it.

Most failed attempts in filing a Federal Disability Retirement application results from mistakes 1 & 2. Little can be done if a Federal or Postal worker files a Federal Disability Retirement application based upon category #3. Thus, this article is meant to help Federal and Postal workers who fall into categories 1 & 2, so that the preparation of an effective Federal Disability Retirement application can stand a good chance at being approved — if possible — in the First Stage of the process.

© 2020 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 OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website. 

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