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OWCP vs. OPM Disability Retirement

The Department of Labor administers Federal Worker’s Compensation Benefits through the Office of Workers’ Compensation Programs (OWCP). Such benefits are non-taxable, and are paid for temporary total disability, for injuries or medical conditions which result from, or are caused by, a workplace injury. There are many tangential factors which may be added to this basic definition, but for purposes of distinguishing OWCP from the Office of Personnel Management (OPM) Disability Retirement, this definition will suffice. Additionally, generally speaking, OWCP/Federal Worker’s Compensation is not a “retirement system.”

OPM Disability retirement, on the other hand, is a retirement system. As a result of a medical condition which impacts one’s ability to perform the essential elements of one’s job, a person is eligible to retire early, based upon a “medical disability.” A person on OPM Disability Retirement is separated from the Federal Agency, and he or she may “move on” in life, and perhaps start another career (with certain limitations as stated below).

When is it Time to File for FERS/CSRS Disability Retirement?

An individual must file for Federal Employees Retirement System/Civil Service Retirement System (FERS/CSRS) disability retirement benefits with the Office of Personnel Management within one (1) year of being separated from Federal Service – otherwise, the right to be eligible for disability retirement benefits is lost. Do not confuse this with being placed on Leave Without Pay (LWOP), or being out on OWCP for being injured. The clock begins ticking when you are actually separated from service. Most people, however, should not wait until they are separated to file for disability retirement benefits, but rather, should file whenever it becomes apparent that he or she can no longer perform one or more of the essential elements of the job.

Taxable vs NonTaxable Benefits

OWCP benefits are non-taxable. OPM Disability Retirement benefits, on the other hand, are taxed. While receiving disability retirement benefits, a person may undertake a job search, accept another position, and earn up to 80% of what his or her former position currently pays. Individuals receiving OWCP temporary total disability may not work at another job – period. Here is a sample scenario using OPM Disability Retirement rules:

A worker’s average salary for 3 consecutive years totals $50,000. The individual goes out on disability retirement, and after the first year (in which he would receive 60%, or $30,000), he is eligible to receive an annual annuity of 40%, or $20,000. The worker then applies for and accepts a job in the private sector. The worker can accept a job that pays up to $40,000 per year (80% of the current salary), and still be eligible to receive the $20,000 per year disability annuity.

The 80% Rule Increases Over Time

The rule is “80% of what a person’s former job pays currently.” If 5 years from now, a person’s former position pays $60,000 per year instead of $50,000, then he can make up to $48,000 per year at the job, because 80% of $60,000 is $48,000.

Filing for Disability Retirement while on Workers’ Compensation

It is often not a bad idea for those who are receiving OWCP benefits to remain on OWCP for as long as they can stand it (i.e., the persistent harassment, the constant oversight by so-called “2nd opinion doctors”, etc.) — but to always have the FERS/CSRS disability retirement annuity approved as a back-up source of income. Individuals may file for disability retirement concurrently while on OWCP — but you simply cannot collect from both at the same time (See 5 C.F.R. Sec. 844.105, “Relationship to workers’ compensation. (a) Except as provided in paragraph (b) of this section, an individual who is eligible for both an annuity under part 842 or 844 of this chapter and compensation for injury or disability under subchapter I of chapter 81 of title 5, United States Code (other than a scheduled award under 5 U.S.C. 8107(c)), covering the same period of time must elect to receive either the annuity or compensation.”).

When OWCP terminates payments (and there is a very good chance that this will happen at some point in the near future), it is a wise option to have your disability retirement benefits approved, but held in an inactive status. Federal workers have every right to elect one benefit over the other. Indeed, if you wanted to, you are allowed to go back and forth between OWCP and FERS/CSRS disability retirement.

As a secondary issue on this matter, a closer look at 5 U.S.C. Section 8106, paragraph (c) (2), (OWCP) on “partial disability” compared with the definition for disability retirement reveals: that “partially disabled employee who refuses or, neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.” This means that if OWCP secures a job for you as a retail store greeter for instance, and pays you the difference between your salary and what retail store pays — and you decide to say “no”, OWCP has every right to cut off your payments.

On the other hand, under the laws concerning FERS & CSRS disability retirement, 5 C.F.R.Sec. 844.103 (a)(2) states that, in order to be eligible for disability retirement, 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.” The difference here is that, under OWCP, if you are “partially disabled,” if you are offered any job that OWCP believes you can do, you must accept it. On the other hand, under FERS/CSRS disability retirement laws, if you are partially disabled — meaning that you simply cannot do at least one or more of the essential elements of your job — then you are entitled to disability retirement benefits, and your agency or the Postal Service cannot simply offer you any job; they must offer you a job in the same pay or grade, and one in which you are qualified or, if you are in the Postal Service, then it must an accommodation in the same craft.

Controlling Your Future

Under OWCP, you have no control over your future – OWCP determines your future. Under OPM Disability Retirement, you can obtain disability retirement benefits, and then take control of your future and work at another job of your choice, make up to 80% of what your (former) position pays and still continue to receive your disability annuity.

A “blog” is an inherently dangerous forum for an attorney; for it is a blank slate that welcomes the fool to fill with vacuous thoughts. Let me first provide a bit of background and introduction, to provide a context: my first love has always been Philosophy. That is why I went to college to study – it was not to get a degree; it was not to go to law school (at least, not initially); it was to read and understand the great philosophers, from the Pre-Socratics to modern day Deconstructionists, Postmodern philosophers, etc. It was a discipline – a complex system of thought by brilliant minds beyond the reach of a young man who was mesmerized by the brilliance of such conceptual systems and fabrics of thought. I ended up majoring in Philosophy; then going on to Graduate School at the University of Virginia. After completing my Master’s coursework and beginning to write my thesis on Berkeley’s philosophy, I realized that my love of Philosophy had waned; perhaps I realized that I would never reach the heights of such brilliant minds as Kant, Hegel, Heidegger, etc.; I desired to do other things. I went to law school; it was a natural step, because law allows for one foot to remain in the world of conceptual systems of logic and argumentation, while placing the other foot into the world of practical application and concretely helping clients. Still, after almost twenty years of being a lawyer, my first love is still Philosophy – and I have, in my spare time, while happily married to my wife of 25 years, and bringing up 3 beautiful kids, been able to enjoy reading a wide range of philosophers, and am thankful that I learned the “discipline and methodology” of philosophy, and that the works of such great minds have become less intimidating to me over the years. For “Philosophy” at its core and simple definition, is merely the “love of wisdom” (as all young Philosophy students learn in Introduction to Philosophy 101); but wisdom comes with age; and, hopefully, the fact that I am older has granted some semblance of wisdom.

That provides a short background; it is about the extent of my comfort level in being “personal” on a blog.

Now, my thoughts for the day: The tools of an attorney are words; the method of delivery rhetoric and argumentation; the conceptual framework, logic; the foundation of justification – a Court’s opinion. In a recent local case that I was involved in, I pointed out that lawyers are often criticized – albeit justifiably – for thinking that by the sheer power of words, we are able to shape reality. We think that, because our tools are words; because we have learned from law school and honed in trial practice the method of argumentation; and further, because we see the practical impact of our words, we come to believe that words themselves can shape the reality around us. I pointed out, however, that it is facts which shape reality; not words. Upon reflection, of course, such an argument is a rather conceptually muddled argument; for facts are certainly framed by words, and so to argue for a bifurcation of “facts” from “words” is in itself confusing. But beyond such confusion, the primary point I wanted to make was that it is vitally important for the integrity of the “profession” of an attorney, that we use the “tool of words” carefully, such that our tools are constrained by Truth, and not mere expediency to win a case.

I believe that our world – the profession of Law – has been diminished in recent years by too many people abusing and mis-using the tool of words to merely win; at the expense of Truth.

I have attempted to represent my clients to obtain disability retirement, in the best way possible, by utilizing the tool of words; while attempting to maintain the integrity of Truth, and thereby the “profession of Law”. In many ways, my job has been easy – my clients are people with medical conditions which seriously impact their lives; it is merely my job to use “words” to accurately describe the “facts” of how their medical conditions impact their ability to perform the essential functions of their jobs.

Tags: CSRS disability lawyer, federal disability lawyer, FERS disability lawyer, FERS disability retirement, Greek philosophy, OPM disability lawyer, OPM disability retirement, opm disability retirement blog

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