By Peter Casciano, Esq.
I routinely hear from former clients seeking assistance on a Review being conducted by The Office of Personnel Management (OPM). The Notice of Review comes out of the blue and often takes disabled annuitants by surprise. Frankly it is unnerving to receive disability retirement benefits for years without hearing word-one from OPM and then all of sudden learn that you have 90 days to turn over all evidence you believe proves you are still disabled from your former federal position. I make it my business to ensure that I provide the same advice, care and attention as the clients I help with their initial application.
Typically disabled individuals being reviewed fall into two categories: those who have returned to the workforce in some capacity and those who haven’t. Let’s start with the far easier case, those who have not engaged in any work related activity since being approved for federal disability retirement. For those people, OPM really only wants to ensure that they have remained in treatment, and that their doctors have remained supportive of their disability. When approved initially, it is important to read the addendum letter that accompanies every federal disability retirement approval. It will provide a list of the illnesses and/or injuries that OPM found disabling. It behooves the disabled individual to remain in treatment for the specific illness(es) or injuries OPM found disabling. It is also a good idea to ensure that the physicians are documenting the symptoms and limitations applicable to each disabling condition.
For those who have returned to work in the private sector, yet still receive their federal disability benefit, the above paragraph also applies. Yet in addition, the physicians must be prepared to explain in detail why the patient remains disabled from federal job, but is able to perform the private sector job. This places a greater responsibility on the doctor than would otherwise exist. First, the physician should focus on the differences between the two jobs. The more different the positions, the easier it will be for OPM to see the distinction. Also, the doctor should focus on the stress and difficulty of each job, vis-à-vis the other. If the expectations of the private sector job are far less demanding than the federal position, that would go a long way towards explaining why the current work can be performed.
Finally, the private sector job must have a salary totaling 80% or less than the previous federal job. My advice on this issue is that one should not even consideration private sector positions that will bring you close to this 80% threshold. I have seen random bonuses, spur of the moment overtime, and windfall commission checks all cause clients to unwittingly exceed the 80% threshold and lose federal disability benefits.
People under review must remember, while it can be frightening, federal disability retirement benefits were constructed in a way to allow for annuitants to work and receive disability benefits. In other words, working while receiving benefits is allowed. However, it is important to understand and avoid the potential pitfalls that may exist during a review period. OPM’s reviews are conducted randomly and the OPM’s decision to institute a review is not based on criteria that we can ascertain. It is important to know that one can sail through the review smoothly, with the right knowledge and planning.
Contact the Disability Lawyers at Andalman & Flynn in Maryland
The disability team at Andalman & Flynn makes it a practice to stay up to date on new regulations and case law to provide the most effective representation to our clients. We normally provide free consultations for clients looking to file for disability insurance benefits or appeal the denial or termination of those benefits, whether the claim is covered by ERISA or not. Please contact Peter Casciano a free consultation today.
by Peter Casciano, Esq.