FAA Air Traffic Controller Disability Retirement, HELP!

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Latest post Fri, Sep 9 2016 3:14 AM by AttyMcGill. 9 replies.
  • Sun, Aug 21 2016 12:53 AM

    FAA Air Traffic Controller Disability Retirement, HELP!

    Hi, thanks for having a forum where I can (hopefully) get some answers to questions to my specific case.

    I'm a 14 year (FERS) FAA air traffic controller that spent the entire time working airplanes. I was  in the military for 5 years and I have previously bought that time back, total federal service is 19 years.

    I was recently disqualifed for air traffic duties by the flight surgeon. Our union contract is very clear in my options, they are a disability retirement, the FAA finding a new job for me in the local area at about the same pay, or accomodating my illness. Number three is not possible so I have two options. And here are the questions.

    How long does the FAA allow me to look for another job? A month? 6 months? A year..? That is not made clear. Do I receive some sort of priority over other applicants if a job is available, or do I fall in with all the others in the applicant pool?

     

    Next, it appears that according to BAL 10-105 I would fall under the "enhanced disability" clause. If that is the case, do I still receive 60% the first year and then drop to 50% after that? Since I am being "forced" out of my job by the flight surgeon, do I pay full state and federal income tax on the annuity? Also, am I supposed to file for SSI as well?

    I also have a few more questions about. BAL 101-05 https://www.opm.gov/retirement-services/publications-forms/benefits-administration-letters/2010/10-105.pdf

    It states:

    The disability annuity for an employee who has performed service as an air traffic controller will
    generally equal the greater of the earned annuity, computed using the General Formula annuity
    accrual rates in 5 U.S.C. § 8339(a), or the guaranteed minimum benefit for air traffic controllers
    under 5 U.S.C. § 8339(e) - 50 percent of the employee's high-3 average pay.

    Then this is referenced:

    As the result of the court decisions referenced earlier in this BAL, an additional annuity accrual
    rate - 1.7 percent - must be included in the computation of the earned annuity if an employee has
    performed service as a law enforcement officer, firefighter, nuclear materials courier, customs
    and border protection officer on and after July 6,2008, member of the Supreme Court Police, member of the Capitol Police, or air traffic controller. The 1.7 percent annuity accrual rate will be applied to all such service, up to 20 years.

    Reading that it seems to me that that would be 50% of my high three, plus an additional 1.7% for my 14 years as an air traffic controller. But that would yield nearly 74% of my high three and I cannot fathom that being correct. Do I receive any sort of additional credit for the military time I bought back?

    I know this is a long rambling post, but I sent questions to OPM weeks ago and never got a reply. I try calling and all I ever get is a busy signal. This is very frustrating and I'm looking for some clarity for my future. Thanks in advance to any and all that have information or expertise to share.

  • Sun, Aug 21 2016 11:13 AM In reply to

    • I M Free
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    • Joined on Thu, Dec 13 2007
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    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    When I first considered OPM D.R. Retirement I spoke to an attorney who specialized in this field, was most helpful and provided a list of clients to call for references. One was an Air Traffic Controller here in California. You have many specific questions that they might be able to address. Hope it works out for you! 

  • Sun, Aug 21 2016 3:09 PM In reply to

    • Kivi
      Consumer
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    • Joined on Sat, Jan 1 2005
    • CA
    • Posts 6,357

    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    I cannot answer all of your questions. Here goes. 

    1. This one is agency specific, but I would not expect a year for the job search. As part of the DR application, your agency has to certify to OPM that it looked around and could not find a comparable job for you within its organization at this location, When someone is in a very specialized occapation, such as yours, it can be really hard for the agency to find a job that matches your pay grade, etc. Do you get any special preference over other applicants?  Frankly, that one may depend upon how much your agency "likes you" and, inb your agency, whether you are located in a major metropolitan area.

    2. You are not reading that BAL 10-105 correctly. In FERS, the years that you spent as a civilian ATC will be computed at 1.7% of your high three times the years of service. In your case, that is about 14 years. The six years of military service will be computed at 1% of your high three per year of service. The two computations are then added together for that initial annuity after the first year. Very few people in FERS, even special category employees, get 60% of their high three, but is very possible for a special category employee to get more than 40% of their high three. What that BAL says that if the computation of your retirement based upon years of service after that first year is more than 40% of your high three, then you get paid that instead of 40% of your high three. 

    In FERS, the time spent on disability reitrement is counted as additional years of service for that age 62 conversion to a regular retirement. However, for someone like yourself, even if you do not immediately qualify for an annuity that is greater than 40% after that first year (and you may not), you may reach entitlement to a higher annuity before age 62. If so, you will be converted to a regular retirement benefit when the years on disability bring the annuity compution to that point. (That is also covered in that BAL.)  In your case, the first four years on disability will be computed at 1.7%. If that brings you past 40% then you will converted at year five. If it does not, the next few years will be computed at 1% until it does or you will be converted to whatever the formula produces at age 62.  

    As part of the DR application process, you do need to file for Social Security Disability Income (SSDI) benefits. You do not need to approved for SSDI. With OPM you only need to establish that you cannot do your Federal job and your agency needs to certify that it cannot place you in a comparable job of the same grade. With SSDI, you would have to establish disability for just about any kind of meaningful job that is out there, even a minimum wage one that requires few skills. If for example, the flight surgeon has disqualified you because of the rather demaning visual requirements of your occupation, but you could perform a job with less stringent visual requirements, such as digging ditches, you probably won't get approved for SSDI. All OPM requires is that you file for SSDI and include a copy of the receipt proving that you filed. You don't have to be approved for SSDI. 

    I suggest that you have your servicing personnel office do a computation of what your DR benefitts could be. Also, remember that ATC often receive extra pays that may not be included in the compuation of your high three. The rule of thumb is that if retirement deductions were not withheld from that extra pay, then such pay is not included in the compuation of the high three.  

    Your servicing personnel office may not be "on site". It's probably in a regional headquarters of some kind. But, someone in your agency knows how to do these computation and can provide you with the info that you need. Contact OPM when that agency does not even have your application is "a waste of time", as you have discovered. 

     

  • Sun, Aug 21 2016 6:35 PM In reply to

    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    Thanks for the in depth reply Kivi, much appreciated. I guess I don't understand how I do not qualify for 50% based on what this says. It pretty clearly says that I will get which ever is greater, but the minimum would be 50%. Do you read this section differently?

    The disability annuity for an employee who has performed service as an air traffic controller will
    generally equal the greater of the earned annuity, computed using the General Formula annuity
    accrual rates in 5 U.S.C. § 8339(a), or the guaranteed minimum benefit for air traffic controllers
    under 5 U.S.C. § 8339(e) - 50 percent of the employee's high-3 average pay.

  • Mon, Aug 22 2016 12:59 PM In reply to

    • Kivi
      Consumer
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    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    I believe that once you have reached that four year mark on DR (since you only have 16 years of ATC service, you would be converted to the 50% rate. The four years of military service would be added in separately and probably would add an additional 2-4% since those years are at the basic rate not the "enhanced rate".

    What I can say is that it will not happen sooner than that if you do not have 20 years of service with the higher deductions.

    Verfiy with your servicing personnel office.

  • Mon, Aug 22 2016 6:48 PM In reply to

    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    Just to add to the already wealth of information provided by others, the fact that the Flight Surgeon has disqualified you -- while somewhat helpful in a disability retirement case -- is never determinative, and sufficient medical evidence must be gathered and submitted via proof by a preponderance of the evidence, and argued based upon the current plethora of case-law.

    Sincerely, Robert R. McGill, Esquire

     

  • Mon, Aug 22 2016 7:02 PM In reply to

    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    Thanks for the reply Mr. McGill. Our current contract clearly lays out my particular case. What is your interpretation of this article reference the disability retirement?

     

    In the event an employee is permanently medically disqualified, or has been temporarily incapacitated for a period of ninety (90) days or longer, he/she shall have the opportunity to appeal such decision to the Federal Air Surgeon, FAA Headquarters, Washington, DC. Pending the outcome of the decision by the Federal Air Surgeon, the Agency shall make every reasonable effort to accommodate the employee in accordance with Article 45 of this Agreement. For the purposes of this provision, the employee shall continue to be considered a member of the bargaining unit. In the event of a negative determination and the employee is permanently medically disqualified, the employee shall have the option to apply for a disability retirement or request to be reassigned to a position for which he/she is qualified, or be accommodated in accordance with the Rehabilitation Act of 1973, as amended, and this Agreement.

  • Tue, Aug 23 2016 3:58 AM In reply to

    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    I am not sure what clarification you are seeking.  The process has become fairly routine, and the FAA is as systematic as any agency can be.  They will do a computer search to determine if they can locate another position at the same pay or grade; if they are unsuccessful, they will likely begin termination proceedings, based upon your medical inability to perform your job functions.  Such a termination should contain the specific language needed to trigger the Bruner Presumption, which should be helpful in your case.

    Sincerely, Robert R. McGill, Esquire

  • Thu, Sep 8 2016 1:32 PM In reply to

    • Decius
      Consumer
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    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    I'm in mostly the same position. My reading of that statute is that it applies only to CSRS employees. 

    In addition, the 40% minimum is a floor, not a starting point. If your earned annuity is below that, your disability is set to 40%. 

    my questions are slightly different: FERS, 5 years, currently "incapacitated". I expect that to become "disqualified" soon. I am currently assigned to light administrative duty per FAA 7210.3 2-8-2 d 

    Should I start either a disability retirement application or a "request for reasonable accommodation" now, or am I required to wait until medical status is finalized? 

    Am I required to modify any aspect of my medical care in order to qualify for a special consideration or come into compliance with a restriction?

    Because of my situation the nature of my disqualifying condition and medication, I have concerns that I will falsely be accused of malingering or otherwise falsifying my condition. Is there any advice about how to protect against such an accusation?

     

  • Fri, Sep 9 2016 3:14 AM In reply to

    Re: FAA Air Traffic Controller Disability Retirement, HELP!

    You should start the process of preparing your Federal Disability Retirement application when it becomes medically apparent -- and, that is between you and your doctor -- that you are no longer able to perform one or more of the essential elements of your job, and your condition will last a minimum of 12 months.

         The second question -- of whether you should "modify" any aspect of medical care, is a medical question that should be determined by you and your doctor alone.  Any factors of coming into "compliance" with a restriction should be secondary, or not at all.  Your health and medical care should always, throughout, remain primary.

         Finally, the support of your treating doctor is crucial in any medical disability retirement application, and whatever your agency thinks or accuses you of, should be able to be rebutted by clinical explanations and medical reasons.  As an attorney, I never worry about what the agency thinks, does or proposes; in the end, this is a medical disability retirement, not an agency's determination based upon unfounded assumptions or presumptions.

    Sincerely, Robert R. McGill, Esquire

     

     

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