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I MEDICALLY RETIRED FROM MY FEDERAL JOB DUE TO SEVERE INJURIES. CAN MY FEDERAL EMPLOYER FORCE ME BACK TO WORK?
Yes.
Despite the US Constitutional Amendments prohibiting forced slavery, a federal employee can literally be forced to return to work by her federal employer.
The scenario is quite common. A federal worker is severely injured on her federal job. She files for and receives her due federal workers compensation benefits from the Office of Workers' Compensation Program (OWCP). Due to her severe injuries, her federal employer agrees that she can no longer perform her job and that she can not be accommodated or assigned to other work. Thus, with the federal employer's full approval, she files for medical disability retirement and leaves the federal workforce. She is no longer a federal employer and no longer works for the federal government.
Months, years or sometime even decades later, while still disabled and receiving her OWCP injury benefits, she receives notice that she has 30 days to accept or refuse a job offer from her federal employer to return to work. If she refuses to return to work, her OWCP injury benefits will be terminated.
She pleads that not only is she no longer a federal employee, and has not been for years, but that same federal agency had already medically retired her as unable to do her job. How can the federal agency now demand she return to work?
Once again federal "turf" rules apply. The fact a federal worker is on the one hand found as disabled and unable to do her job by her federal employer in her OPM medical disability retirement claim, holds little to no relevance to the competing OWCP claim. If in the OWCP claim, the OWCP and the same federal employer find that her on the job injuries have subsided such that she can return to work, the OWCP and the federal employer can demand that the injured, disabled, medically retired worker return to her job or face termination of OWCP benefits. A defense by the worker that her federal employer had already medically retired her under OPM as "disabled" and unable to perform her job, does not prohibit the very same federal employer from demanding that the very same "disabled" worker return to that job or face loss of OWCP disability benefits. (FECA PM 2-0814-5(c))
Of course if the disabled worker does return to work she will no longer be disabled and her OPM medical disability retirement benefits will also terminate.
Finally, the fact that a retired, disabled worker may have moved years later across the country, or even out of the country, does not bar the federal employer from ordering the retired, disabled worker to return to work within 30 days to the original workplace or face termination of benefits. Edward P. Carroll, 44 ECAB 331 (1992)
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Greetings!
Prior newsletters brought you notice that the Social Security Administration is now taking up to 1050 days to simply set a hearing date on disability claims. Hundreds of thousands of disability claims are waiting to be heard. In effort to reduce this horrendous backlog of claims the SSA has opened its doors to publicly hiring more Administrative Law Judges to review and hear these claims. Will this work? Read on and decide.
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OUTSIDERS NEED NOT APPLY AT SSA
The SSA has hundreds of thousands of disability claims stacked up waiting for hearings across the country. Simply waiting for the SSA to set a hearing date on claims can take up to 1050 days in some cities.
The SSA has previously blamed its delays on a shortage of Administrative Law Judges (ALJs) on staff that are available to hear these disability claims. ALJs are supposed to be judges who fairly and equitably review and hear SSA disability claims, independent of any prejudicial ties to federal agencies.
So, the SSA in April 2007 publicly announced that it would be taking 1,250 applications for ALJ positions starting on May 4, 2007.
On May 7, 2007, three days later, the SSA closed the ALJ applications process.
Apparently all 1,250 applications were filled in three days.
Who filled these applications for independent ALJ positions?
Apparently not whom you would expect.
According to a District Court complaint (Case No. 07-0711 RMC, D.D.C. 04/07) filed in Washington DC, the federal government overseeing the ALJ application process, gave insider tips to its own federal agencies of the upcoming applications openings. As result many federal employees inside federal agencies simply took the day off work from their federal jobs to complete and submit applications for the ALJ positions. According to the complaint, more than 70% of the ALJ applications were filed by these inside federal workers. The federal agency workers as given insider information of the upcoming ALJ application openings, simply overwhelmed the process essentially barring non-federal outsiders from applying, and effectively closing the application system in 36 hours.
As noted an ALJ overseeing a SSA disability claim is supposed to be an independent overseer of the claim, without having what could be seen as prejudicial ties to the SSA or other federal agencies. With more than 70% of the new ALJ applications now being filed by insider federal agency employees, whether or not the future holds fair for upcoming SSA claimants in their disability hearings will certainly be open to question.
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IF THE SSA FINDS THAT I AM DISABLED AND UNABLE TO WORK, DOES MY FEDERAL EMPLOYER HAVE TO AGREE?
No. Federal employees who are unable to perform their jobs due to physical and/or mental impairments can file for medical disability retirement with the Office of Personnel Management (OPM). As part of filing for OPM disability they will also be required to file for SSA disability.
Many times the SSA will determine that the claimant is disabled and unable to work and award SSA disability benefits. Many times that claimant will then present that SSA determination to OPM as "proof" of their disability in their OPM claim.
However, a determination of disability
by the Social Security Administration is not binding on OPM when
considering whether a federal employee is eligible for disability retirement, even
though these agencies must consider the award along with any other evidence of
disability. Nash v. Office of Personnel Management, 92 M.S.P.R. 527 (2002)
Furthermore, determinations by other federal agencies such as the Veterans Administration and the US Department of Labor, that a claimant is fully disabled and unable to work are not binding upon the OPM either.
Although all federal agencies are essentially determining the same issue: the ability or inability of the claimant to work, due to competing ground rules between the federal agencies, each holds that only "their" rules within their agency will determine whether or not a claimant is disabled. Thus it is not uncommon to find a worker who has been found fully disabled by the Veterans Administration and/or the SSA and/or the USDOL to not be found disabled by the OPM, and vice versa.
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Trying to understand the laws and regulations surrounding
disability benefits can be incredibly confusing for the layman. It's almost
impossible unless you have devoted your education and career to understanding
this specific niche. If you want to cut through the all the confusing obstacles
that stand in your way, give the offices of James R. Linehan a call as soon as
possible. If too much time passes, you could miss out on your Social Security
Disability, Federal Workers Compensation OWCP, or OPM medical retirement
benefits.
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Sincerely,
Jim Linehan
1-800-266-9535 toll free
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