Podcast #3: A Good Doctor is the Real Key to Winning:
Transcript edited for clarity:
How do you know if you are eligible for Disability Retirement?
There is a legal standard, but you probably would have a difficult time figuring out if you meet it on your own.
Everyone who calls me thinks they meet the standard – otherwise they wouldn’t be calling! Most people think they will be able to win, and without a lawyer on top of that.
Now, that could be true for a small number of people. If someone is paralyzed, have terminal cancer, or something like that, where it is 100% clear cut that they cannot do their job duties, then they probably don’t need me or a referral to another lawyer.
So what’s the standard?
The details for the standard are laid out in the blog, but for now I will say this. The standard is that you have to be unable to perform at least one critical element of your job. You have to prove that a disability makes you unable to “satisfactorily” perform a critical element of your job.
So if your work is unsatisfactory or you are unable to make it to work, then that would meet the standard?
Exactly. Unless you are lazing around watching TV!
You have to demonstrate that you cannot make it to work due to your medical condition.
Additionally, a disability must be expected to last at least one year.
And how would you demonstrate that?
Through a doctor. More specifically, through the applicant’s statement and the physician’s statement (two forms on the OPM Disability Retirement Application).
Now, writing a good applicant’s statement is a good idea, but it is basically worthless compared to a physician’s statement.
What wins a disability retirement case is what a doctor says.
When I was a kid, my dad took me to restaurants every now and then. And the way to get to the front of the line at the restaurant was to put “Dr.” in front of your name. So my dad always went by Dr. Friedman and we were always seated first.
It’s not so different at OPM. The doctor is treated better than everyone else.
So should you lie and say you are the doctor?
You should never lie! But being a doctor isn’t as good as being the federal employee who has a doctor who writes you a great Physician’s Statement!
On the other hand, if you are being treated, but you don’t have a doctor who is ready to talk about your treatment, talk about your disability, and discuss how despite your treatment, you still cannot get over your disabling condition and perform your job, then you are not going to win.
You can say all you want about being sick or disabled, and it won’t matter. You need the doctor to do it.
You need evidence.
If you want to talk to Harvey about your situation, fill out the form at the right, send him an email, or give him a call. As a semi-retired lawyer, he is here to talk with you and help as best he can – think of him as a friend you drop in on for advice.
We have a real problem with Physician’s Statements from doctors who are too busy to spend time writing them and unwilling to go out on a limb to say it like it really is. So you have to work around this.
When it comes to doctors, you have to…
Following up on my earlier post about getting fired for misconduct:
If you are fired for misconduct, that does not mean your agency can wash its hands of you and not cooperate with your claim for Disability Retirement. Your agency is still required…
Can my disability retirement entitle me to additional payment (for nursing services, wheelchairs, etc.)?
ANSWER: No. There are no additional payments available from disability retirement. However, disability retirement is not a bar to your pursuing any other entitlements that may be available, such as from a private insurance policy, Social Security, or the like. However, you are not permitted to collect workers' compensation (except in unusual cases).
Are legal fees incurred in petitioning for disability retirement tax deductible?
ANSWER: Yes. Attorney's fees related to petitioning for disability retirement are usually tax deductible. However, the particular rules under which the deduction may be taken depend on the circumstances so that the tax savings will vary. Thus, you should check with a tax professional.
How much will I collect each month on disability retirement?
ANSWER: The amount you collect each month depends on the federal government retirement system in which you are enrolled. FERS has a simple formula; CSRS requires some calculations.
FERS Employees: First, the good news. Apart from any potential cost of living increases, you will receive 60 percent of your "average pay" the first year you collect and 40 percent of your "average pay" during every other year you collect. "Average pay" is the average amount you earned each year during your three highest consecutive paid years of federal civilian employment.
Now the bad news: all FERS employees are required to apply for Social Security, even if they believe that they are ineligible. The majority of FERS employees who apply are not eligible for Social Security benefits, so their disability retirement annuities will not be affected.
FERS employees who are eligible for Social Security benefits will have their 60/40 percent of average pay annuities adjusted as follows: during the first year, for each dollar that Social Security gives you, FERS will deduct one dollar from your annuity. (This is known as a "wash," a transaction in which gains and losses are exactly equal.) During the second and all succeeding years, for each dollar Social Security gives you, FERS will deduct sixty cents from your annuity. In this case, there is some benefit from Social Security eligibility, but the value of that benefit is greatly diminished.
CSRS Employees: The good news is that you don't have to apply for Social Security. If you do apply and are eligible, your disability retirement annuity won't be reduced. Another bit of good news is that some CSRS employees will receive disability annuities higher then the 60 percent ceiling paid FERS employees. But there's bad news for CSRS employees, too. Although the law assures you a "guaranteed minimum" disability retirement annuity, that minimum can be far lower that the 40% floor paid to FERS employees.
A CSRS annuity is predicated on "average pay," (defined above) just as is a FERS annuity. CSRS employees with less than 22 years of actual service also need to consider an additional factor, known as "creditable service." You compute your "creditable service" by calculating the number of years until you reach age 60, and adding that number to your number of years of federal civil service.
Apart from adjustments in the annuity resulting from the potential application of COLA (cost of living adjustment) rules, CSRS employees can determine their approximate annuities by applying one of the following three rules:
If you have 22 or more years of "creditable service," but less than 22 years of actual service, you will collect 40 percent of "average pay" and you don't have to bother with any other calculations.
If you have 22 or more years of actual service, then don't worry about creditable service at all. Your annuity will be computed under the general formula for regular retirement and you will receive more than 40 percent of "average pay."
If you have less than 22 years of "creditable service," you will receive less than 40% of "average pay," and to find your approximate monthly disability retirement annuity, use the chart that follows.
EARNED RETIREMENT PERCENTAGES BASED OF YEARS OF SERVICE
I have represented Federal government employees and Postal workers seeking OPM Disability Retirement for a long time. I also represent them in agency leave problems such as AWOL, FMLA, LWOP, etc. Leave problems often come along with being sick and disabled. I have stuck to this area of the law for more than 30 years of the 50 years I have been a lawyer.