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Disability Retirement


The federal government allows employees who are unable to work to retire under a disability retirement. It is in the best interest of both employees and the federal government for employees to remain gainfully employed in their current grade or pay level, as long as they can provide useful and efficient service without endangering themselves, others or government property.
Disability retirement should be the very last option and should be used only when attempts have been made to preserve an individual's employment, and those attempts have failed.

Order our Disability Retirement guide to educate yourself on the rules and regulations concerning disability retirement for federal employees.

To read today's top news stories on federal employee pay, benefits, retirement, job rights and other workplace issues visit FederalDaily.com.
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Winsty22  
#1 Posted : Wednesday, September 7, 2022 7:37:38 AM(UTC)
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Hello,

New to the soup and first post. I'm am pretty much clueless to the process and my FDR isn't even filed yet, hopefully soon. My basic initial question is; I've seen a couple comments about reassignment and such. I didn't even know this was a possibility. My doctors for several conditions are all out of my commute area, out of state. I have surgery coming up soon. Is it possible to be approved for reassignment for position under umbrella department or does it have to be specific agency. I know there are remote options out there, just not sure if I could do it out of current commuting area. Also is reassignment only possible if other things such as RA, light duty, etc tried and exhausted. Sorry if not specific enough but I must admit, I'm learning on the fly.

Thanks
GSBS  
#2 Posted : Wednesday, September 7, 2022 1:41:59 PM(UTC)
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Hi, perhaps this 11 page OPM pamphlet can help you. Also an attorney that specializes in OPM D.R. retirement can be consulted for free. It seems you are asking both R.A. & retirement questions. There are plenty of online resources to review, and thousands of posts in our section!


https://www.opm.gov/forms/pdfimage/sf3112-2.pdf

The federal government allows employees who are unable to work due to a mental or a physical condition to retire under a disability retirement. Because it is in the best interest of both an employee and the federal government for an employee to remain gainfully employed as long as the employee can provide useful and efficient service, disability retirement should be considered as a last option. Disability retirement should be used only when attempts have been made to preserve an employee’s federal employment, and those attempts have failed.

"Person. Woman. Man Camera. TV,"
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Winsty22 on 9/8/2022(UTC)
mefed  
#3 Posted : Thursday, September 8, 2022 4:30:37 AM(UTC)
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Originally Posted by: Winsty22 Go to Quoted Post
Hello,

New to the soup and first post. I'm am pretty much clueless to the process and my FDR isn't even filed yet, hopefully soon. My basic initial question is; I've seen a couple comments about reassignment and such. I didn't even know this was a possibility. My doctors for several conditions are all out of my commute area, out of state. I have surgery coming up soon. Is it possible to be approved for reassignment for position under umbrella department or does it have to be specific agency. I know there are remote options out there, just not sure if I could do it out of current commuting area. Also is reassignment only possible if other things such as RA, light duty, etc tried and exhausted. Sorry if not specific enough but I must admit, I'm learning on the fly.

Thanks


Agency is another one that I can't seem to get a straight answer to. OPM has two definition with the agency being both a department level organization (i.e. Homeland Security, Defense, USDA, etc.) but at the same time calls sub units agencies (i.e. Air Force, Army, Navy, etc.). OPM refused to provide clarification. My organization uses different terms than the ones used by OPM, so they were less than helpful.

A thumbnail of what I have read in the laws/regulations publications from OPM with regards to reassignment. When applying for a DR some agencies actually conduct a job search as part of their process, others don't. The law simply states for FERS that you have not declined a reasonable offer of a reassignment to a job at the same grade or pay in the local commuting area. If you don't ask for a reassignment and your agency does not offer a reassignment, then it stands to reason that you can't decline the offer. One area that I had trouble finding any information on and with my agency's recent actions calls into question my ability to read and understand laws/regulations/policies is the "same grade or pay" clause. You can research it in the regulations (5 CFR 844.102) and "same grade or pay" is taken to mean same grade and basic pay. Basic pay is defined as any pay subject to FERS withholdings and is contained in Title 5 USC 8331(3). I do not know if court decisions have changed those definitions, but that is what is written in the law.

When it comes time to apply for DR, I'd suggest getting a lawyer.
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Winsty22 on 9/8/2022(UTC)
Winsty22  
#4 Posted : Wednesday, September 21, 2022 8:39:04 PM(UTC)
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Update and any info welcomed: attorney almost ready to file. Medical documentation ready to go. I'm a covered LEO and and unable to perform essential functions of the job due to joint/back problems that just got much worse. Main concern is that I haven't filed for an accommodation, mainly because I don't feel that there is an accommodation for my position unless I want to be a desk jockey for the rest of my career. Attorney believes we are ok without RA but I'm concerned OPM and agency may collude against me and deny me for not exhausting all options. Am I paranoid? Am I looking at first round denial or worse? I want to burn through leave, then request LWOP and get another non-physical job while FDR goes forward. Trying to stay at work would not be condusive to healing. Thoughts?
frankgonzalez  
#5 Posted : Thursday, September 22, 2022 4:44:02 AM(UTC)
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Originally Posted by: Winsty22 Go to Quoted Post
Update and any info welcomed: attorney almost ready to file. Medical documentation ready to go. I'm a covered LEO and and unable to perform essential functions of the job due to joint/back problems that just got much worse. Main concern is that I haven't filed for an accommodation, mainly because I don't feel that there is an accommodation for my position unless I want to be a desk jockey for the rest of my career. Attorney believes we are ok without RA but I'm concerned OPM and agency may collude against me and deny me for not exhausting all options. Am I paranoid? Am I looking at first round denial or worse? I want to burn through leave, then request LWOP and get another non-physical job while FDR goes forward. Trying to stay at work would not be condusive to healing. Thoughts?
Part of the DR process is a form from the RA office saying there is no RA available for you...so a request will need to come through them.

You should have voted Cthulu...the greatest of all Evils
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Winsty22 on 9/22/2022(UTC)
mefed  
#6 Posted : Thursday, September 22, 2022 4:46:39 AM(UTC)
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Originally Posted by: Winsty22 Go to Quoted Post
Update and any info welcomed: attorney almost ready to file. Medical documentation ready to go. I'm a covered LEO and and unable to perform essential functions of the job due to joint/back problems that just got much worse. Main concern is that I haven't filed for an accommodation, mainly because I don't feel that there is an accommodation for my position unless I want to be a desk jockey for the rest of my career. Attorney believes we are ok without RA but I'm concerned OPM and agency may collude against me and deny me for not exhausting all options. Am I paranoid? Am I looking at first round denial or worse? I want to burn through leave, then request LWOP and get another non-physical job while FDR goes forward. Trying to stay at work would not be condusive to healing. Thoughts?


I am also in a LEO position. I delayed submitting my DR because I was waiting for the agency's fitness for duty exam to be complete. I should have filed earlier, then submitted the FFDE results to OPM, but that time has passed. In the options letter my agency provided me after the FFDE results came in, it stated very clearly that no RAs were available to me. This is due to my medical condition affecting my balance and mobility. The form the reasonable accommodation branch fills out stated I did not request a RA. While technically true there isn't one that will work. It's kind of hard to be a LEO if you can't move, fight or stand for extended periods of time. I can't complete firearms or physical restraint training. My lawyer said it wasn't a big deal because you don't need to show that you were denied an RA, simply that there isn't an effective one. This can be done through doctor's letters or if you agency has submitted you for a FFDE. With that said, just because you can win the case does not mean OPM will agree with you and sometimes they get it really wrong and you have to appeal up to the courts.

While going through this process I have discovered light duty is not a RA. So whether you will stay on duty or not is really up to you. Also I have been unable to get an answer to one major question. The laws state one thing, but being in LE I have seen courts read a law then twist it and decide something completely different. The question is I have extra pay under title 5 USC sec 8331(3) that is sporadic and inconsistent. I have earned over $20k per year in basic pay in excess of base pay covered under this section of law during the last three years. All of the written guidance (laws/regulations/handbooks etc) I have seen says if a position s offered that doesn't take this pay into consideration we do not have to take it. A lawyer I spoke to gave two opposing answers. He was unable to provide any further reasoning other than you have to take the job. Another law firm put out a webinar that alluded to we wouldn't have to take the job if it didn't take into consideration those pays. Both are highly regarded on this and other forums.

I can provide links to much of the laws/regulations I researched in regards to pay in a PM if you would like.

Edited by user Thursday, September 22, 2022 4:49:13 AM(UTC)  | Reason: Not specified

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Winsty22 on 9/22/2022(UTC)
Winsty22  
#7 Posted : Thursday, September 22, 2022 6:41:32 AM(UTC)
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That would be awesome, thanks!
mefed  
#8 Posted : Friday, September 23, 2022 3:55:54 AM(UTC)
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Originally Posted by: Winsty22 Go to Quoted Post
That would be awesome, thanks!


I AM NOT A LAWYER, BUT THIS IS WHAT I FOUND. ASK YOUR ATTORNEY ABOUT THESE ISSUES AND DON'T TAKE MY POSTINGS, INTERPRETATIONS, AND UNDERSTANDINGS AS LEGAL ADVICE.

I don't have access to good databases to research case law, so I don't know if any of these laws/regulations have been modified by courts cases. I included two very important cases I know about at the end. I did read an article a while back about a court decision that OPM interpreted to modify the meaning and application of a law. For over a decade OPM applied their interpretation to deny DR applications. Recently the court ruled OPMs interpretation of the decision was incorrect and brought the procedure back in line with the law.

Title 5 CFR sec 844.103 (Eligibility):
(a) Except as provided in paragraph (c) of this section, an individual must meet the following requirements in order to receive a disability annuity:

(1) The individual must have completed at least 18 months of civilian service that is creditable under FERS, as defined in § 842.304 of this chapter;

(2) The individual must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position;

(3) The disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed;

(4) Accommodation of the disabling medical condition in the position held must be unreasonable; and

(5) The individual must not have declined an offer of reassignment to a vacant position.
Found at: https://www.law.cornell.edu/cfr/text/5/844.103

Title 5 CFR sec 844.102:
Vacant Position means an unoccupied position of the same grade or pay level and tenure for which the employee is qualified for reassignment that is located in the same commuting area and, except in the case of a military reserve technician, is serviced by the same appointing authority of the employing agency.

Same grade or pay level means, in regard to a vacant position within the same pay as the position the employee currently occupies, the same grade and an equivalent amount of basic pay.

Basic Pay means the pay an employee receives that is subject to deductions under FERS.
Found at: https://www.law.cornell.edu/cfr/text/5/844.102


Title 5 USC 8401 (FERS retirement)defines basic pay as that used in Title 5 USC sec 8331 (3) (CSRS retirement):
(3) “basic pay” includes—
(A) the amount a Member received from April 1, 1954, to February 28, 1955, as expense allowance under section 601(b) of the Legislative Reorganization Act of 1946 (60 Stat. 850), as amended; and that amount from January 3, 1953, to March 31, 1954, if deposit is
made therefor as provided by section 8334 of this title;
(B) additional pay provided by—
(i) subsection (a) of section 60e–7 of title 2 and the provisions of law referred to by that subsection; and
(ii) sections 60e–8, 60e–9, 60e–10, 60e–11, 60e–12, 60e–13, and 60e–14 of title 2;
(C) premium pay under section 5545(c)(1) of this title;
(D) with respect to a law enforcement officer, premium pay under section 5545(c)(2) of this title;
(E) availability pay—
(i) received by a criminal investigator under section 5545a of this title; or
(ii) received after September 11, 2001, by a Federal air marshal or criminal investigator (as defined in section 5545a(a)(2)) of the Transportation Security Administration, subject to all restrictions and earning limitations imposed on criminal investigators receiving such
pay under section 5545a, including the premium pay limitations under section 5547;
(F) pay as provided in section 5545b(b)(2) and (c)(2);
(G) with respect to a customs officer (referred to in subsection (e)(1) of section 5 of the Act of February 13, 1911), compensation for overtime inspectional services provided for under subsection (a) of such section 5, but not to exceed 50 percent of any statutory
maximum in overtime pay for customs officers which is in effect for the year involved;
(H) any amount received under section 5948 (relating to physicians comparability allowances); and
(I) with respect to a border patrol agent, the amount of supplemental pay received through application of the level 1 border patrol rate of pay or the level 2 border patrol rate of pay for scheduled overtime within the regular tour of duty of the border patrol agent as
provided in section 5550;
but does not include bonuses, allowances, overtime pay, military pay, pay given in addition to the base pay of the position as fixed by law or regulation except as provided by subparagraphs (B) through (I) of this paragraph [1] retroactive pay under section 5344 of
this title in the case of a retired or deceased employee, uniform allowances under section 5901 of this title, or lump-sum leave payments under subchapter VI of chapter 55 of this title. For an employee paid on a fee basis, the maximum amount of basic pay which
may be used is $10,000;
Found at: https://www.law.cornell.edu/uscode/text/5/8331
I have read many people say only include base pay when considering a reassignment. Some have posted on this forum that is all OPM includes. The law/regulation/FERS Handbook clearly states otherwise, but I don't know if there is case law to back that interpretation up. No one has provided any cases when asked. Not even the lawyers.

FERS Handbook page 19: An employee may decline an offer of a position at a lower grade or pay level, a position of lesser tenure, or a position in another agency or commuting area, without affecting his or her eligibility for disability retirement.
Found at: https://www.opm.gov/reti...rsfers-handbook/c060.pdf
I would suggest reviewing all of chapter 60 in the FERS Handbook. It deals with OPM's process for disability retirement and has good background information. There is a lot of white space so it isn't that long. There is a section in the handbook stating what is included as a RA. Reassignment is one of them.

In the FERS handbook there is reference to BAL 10-105. I am not going to post the verbiage because it's long, but basically it allows those covered under special category retirement (6(c)/12(d) retirement) to continue receiving 1.7% credit as if they were still working in that position when the annuity is recalculated at 62 years old. It'll be 1.7% for 20 years then 1% for the rest. If you have 20 non-covered years, I have heard OPM will use the 1.1% factor. I have not seen th the 1.1% thing in writing from a government source.
Found her: https://www.opm.gov/reti...handbook/c061_notice.pdf

I have read, but not from an official source or court decision, that 6(c)/12(d) retirement is interpreted at tenure. That doesn't make sense to me based on the published legal definition of tenure and I haven't read it in a court decision, so I don't rely on those interpretations.

Cases:

Bruner v. OPM. Basically shifts the burden of production to OPM if your agency found you unsuitable for continued service in your position and you have been removed from service for medical inability. You still have to show OPM that you are disabled, but the hurdle is much lower. I have read where people are entitled to the Bruner presumption so essentially phone in their DR application and are denied. Still submit the full, hardcore application to OPM to make it a "slam dunk" case.
Found at: https://casetext.com/cas...-of-personnel-management

Gooden v. OPM Basically the US Court of Appeals ruled that a request for an RA is not required if it is reasonable that no RA would be available to allow the employee to continue service.
Found at: https://caselaw.findlaw....ral-circuit/1391775.html

This is what I have right now. I am sure I am missing a bunch that found but I forgot. If I remember anything else I will post.

Winsty22  
#9 Posted : Friday, September 23, 2022 5:44:31 AM(UTC)
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Thanks Mefed!! This is super helpful.
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