By Peter Casciano, (301) 563-6685
Under the FERS benefits system, disability retirement annuitants will receive the benefit until they reach age 62, at which point they will involuntarily transfer to the normal pension benefit.
Depending on the claimant’s age with the Office of Personnel Management approves the claim, an annuitant can usually count on OPM conducting at least one review of the claim. This review typically consists of OPM sending the claimant a short form to complete regarding any return-to-work activities and a request that recent medical records be submitted to OPM for review.
For those annuitants with supportive clinical records and a medical condition still clearly incompatible with performing the material and substantial duties of their previous federal job, these OPM reviews are straightforward.
For those annuitants that have returned to work in the private sector or who have some complications with their medical treatment, the OPM reviews can be nerve-racking, to say the least. Hiring the right lawyer to assist can help smooth the process and maximize the chances of a successful review. This is true even if you didn’t need a lawyer to help establish the benefit in the first place, hiring one on review can be critical.
Furthermore, it’s important to remember that federal disability retirement often is accompanied by other benefit coverages.
Many folks on federal disability retirement also maintain at least health and life insurance coverage by virtue of their approval for disability retirement. It is one of the best benefits of disability retirement! However, if the disability retirement annuity is terminated due to one or more of the reasons below, the secondary benefits that flow from the disability retirement will also be terminated, sometimes retroactively! In other words, having disability retirement terminated early can truly be a catastrophic event.
The first common reason federal disability retirement benefits are terminated is that you have returned to work in the federal government.
In many instances the entire disability retirement benefit is erased by the earnings one makes through the subsequent government employment. In many instances, folks receiving federal disability retirement could never return to government employment because their condition is too severe. For those lucky enough to be able to return to federal employment, if the second position is at the same or higher pay grade than the previous position, the federal disability retirement will end. If less, there will be an offset and the value of the disability retirement will be greatly reduced. If you are considering reemployment with the federal government, please contact me to discuss your options and benefit calculations.
The second common reason one might lose their disability retirement is if the medical documentation requested by OPM shows that the claimant is no longer disabled from their previous position.
The key issue here is that the claimant must be in treatment. It is not correct when folks think that because their condition is incurable, they don’t have to seek treatment. Further complicating issues is when doctors tell folks on disability: “there is nothing more I can do for you treatment-wise.” These comments help confuse some annuitants who think they no longer need to see their doctor. This is wrong. Consistent treatment is required for those on federal disability retirement. How frequent the treatment must vary from case to case, of course. However, a doctor will be unable to support your continued claim on a review if you haven’t been treated by that doctor for years. After the recommendation that you see your doctor regularly, we also recommend that you communicate clearly regarding the symptoms you experience. These simple tips can make the difference between a successful OPM review and a termination.
Lastly, a common reason for federal disability retirement termination is subsequent private-sector earnings.
These earnings are based on an 80% earnings threshold of the basic pay for the position from which you retired. If you are a disabled federal employee and you have entered the private sector workforce, you must understand that OPM will conduct an annual income survey where they ask you to certify your private-sector earnings. For regular W2 employees, with consistent income, staying under the 80% threshold is typically easy. However, those with inconsistent income flow (e.g., Real Estate Agents) can be caught off guard by a huge month late in the year that pushes them over the income limit. The bad news is that once you exceed the income limit, it is virtually impossible to continue to receive disability retirement. The earnings limit is strict and unbending. Another tricky issue for those in the private sector is secondary benefits, like room and board. These benefits can be counted as income by your employer and can also trigger a violation of the earnings limit.
Our clients on federal disability retirement are well protected by a wonderful benefits package that typically allows for them to comfortably stop working and concentrate on their failing health. This benefit is not without its potential pitfalls. It is important to actively protect your disability retirement by staying informed, staying in treatment, and regularly consulting with an attorney. I am happy to help however I can. Feel free to call or email Peter Casciano anytime at 301-563-6685 or [email protected]
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone and is there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.