Railroad Retirement Disability
1. For whom and what does the Railroad Retirement Act provide?
The railroad Retirement Act is the underlying law that provides disability annuities inclusive of a “Total Disability Annuity” (TDA) and “Occupational Disability Annuity” (ODA) for railroad workers who become totally or occupationally disabled and provides Medicare coverage for totally disabled employees and those suffering from kidney diseases before age 65.
2. When is early Medicare coverage available for the disabled?
Early Medicare coverage that begins before the age of 65 may begin after a totally disabled railroader has been entitled to a disability annuity for at least 24 months and has a disability insured status under the Social Security Act. Therefore, should a railroader become totally and permanently disabled, he or she may be eligible for Medicare benefits within 24 months being determined to be disabled or at age 65, whichever comes first.
Medicare coverage is also available on the basis of kidney disease where the disease requires dialysis or a kidney transplant where a transplant is available. This availability includes not only employee annuitants but also employees who have not retired but who meet certain minimum service requirements, as well as spouses and dependent children. For chronic kidney disease sufferers, coverage may also begin with the third month after dialysis begins, or earlier if certain conditions are met.
3. How does Railroad Retirement Disability compare financially to Social Security Disability?
Railroad Retirement Disability generally pays more. The average Social Security Disability Award pays monthly benefits averaging about $1,125.00. The average RRB benefit for those retiring directly from the railroad industry average awards of about $2,800.00 per month.
4. Do the Railroad Retirement Disability Annuity requirements also include a waiting period similar to that required for Social Security disability benefits?
In Social Security there is a five-month “No Pay” period following the month of disability onset in which benefits are not paid. The same is true with the RRB disability annuities. So, file for either or both as early as you can so that the five-month elimination-“No Pay” period is exhausted as early in your claim as possible.
5. Are Railroad Retirement Disability Annuity (RRBDA), Railroad Retirement Employee Annuities (RREA) and Railroad Retirement Employee Occupational Disability Annuity (RREODA) the same?
6. What is the difference?
The RRBDA is a disability insurance program that applies to disabled railroad or former railroad employees who are disabled.
The RREA applies to railroad employees who seek to retire after they have accumulated enough months of service to retire either before full retirement age or thereafter.
To qualify for an employee occupational disability annuity, (RREODA) one must be permanently disabled from work in his/her “Regular Railroad Occupation” AND have a “Current Connection” with the railroad industry. If you have 240 months of creditable service you are eligible at any age, or after age 60 if you have 120-239 months of creditable railroad service. If you have less than 120 months (10 years) you are not eligible. The disability can also incorporate a “Total Disability” annuity.
7. What is meant by the term “Regular Railroad Occupation”?
This means the job in which you worked while a railroad worker for more months than you worked in any other occupation inside or outside of the railroad industry during the last five (consecutive or non-consecutive) years in which you were employed. Or, in at least one-half of all the months worked in the last 15 consecutive years.
8. What is meant by the term “Current Connection”?
Current connection means that you worked for the railroad in at least 12 of the 30 consecutive months immediately before the month in which your annuity begins; OR you have worked in the railroad industry in at least 12 months in any earlier period of 30 consecutive months AND you did not work in any significant non-railroad employment between the end of the 30-month period and the month in which your annuity begins. Note though that working for certain government agencies will not break your current connection, nor will self -employment or employment (non-railroad) after your RREA or RRBODA begins.
9. Are there any connections that are deemed to be a current connection would satisfy the “Current Connection” requirement?
Yes, having at least 25 years of railroad service; AND if you stop working in the railroad industry involuntarily, without fault and for reasons unrelated to medical reasons on or after October 1, 1975; AND you did not decline an offer to remain in railroad employment or return to such employment in the same class or craft as your most recent railroad service regardless of the number of miles you would have had to move to accept that job.
10. What is a “Total Disability Annuity”?
A total disability annuity, or TDA is an annuity based on a permanent and total disability from ALL employment. It is payable at any age to a railroader with at least ten years of railroad service generally and under certain exceptions when certain conditions for RR employees with five years of service after 1995 have been met.
11. What is an “Occupational Disability Annuity”?
An occupational disability annuity is one that is based on the claimant’s inability to work at his or her regular railroad occupation.
12. How do the standards for total disability and occupational disability differ?
To be considered to be totally disabled an employee’s medical evidence must show a permanent physical or mental impairment that prevents him or her from performing any of regular or gainful work. A condition is considered “permanent” if it lasts or has lasted or is expected to last for a continuous period of at least 12 months or result in death.
To be considered to be “occupationally disabled” one must have a physical or mental impairment that prevents the employee from performing the duties of his or her regular railroad occupation, even though the employee may be able to perform other kinds of work. An employee’s regular occupation is generally the one that he or she did for hire for more than any other employment in which the employee worked during the last 15 years.
13. Can an employee with five years of service after 1995 qualify for both a total, permanent annuity (Total Disability Annuity/TDA) and an occupational disability annuity (ODA)?
No, such an employee may only apply for TDA and may only do so if he or she establishes that he or she has social security or railroad retirement earning credits in 20 calendar quarters in a period of forty consecutive quarters ending in or after the quarter in which the disability began. Disability annuities payable to five year employees are initially limited to a “Tier 1” social security equivalent benefit.
14. When is one eligible to file for my Railroad Retirement Employee Annuity?
The age requirement for an age and service annuity depends on your years of creditable service for the railroad. When you meet all of the eligibility requirements for age. You may want to refer to Form G-177 to determine if you are eligible for your Railroad Retirement Annuity.
15. Do I need to file an application for Railroad Retirement Disability Annuity (RRBDA)?
Yes, if your application is for a total and permanent disability you will not automatically get it without filing an application with the RRB.
16. What will I need to file to get my RRB disability annuity?
You will need to submit medical evidence inclusive of hospital records and treatment notes from all physicians who treated you for your disabling condition both immediately prior to and after the onset date for your disabling condition. You should also have ready the names and addresses , phone and fax numbers of all physicians, facilities, clinics, hospitals or institutions where you received any medical or psychiatric care or attention. Please also keep a list of your medications and list all side effects of this medication. You will also need proof of any military service claimed
17. What is the earliest that I may be eligible for my railroad retirement total and permanent disability annuity under RRBDA?
The earliest day in which one may receive these benefits is the first day of the sixth month following the month in which the disability onset occurs. In other words, you should file as soon as you cannot work full time in your railroad occupation. Even if you are immediately entitled, there will be a period of five consecutive months to which you cannot receive benefits during this “No Pay” period. On the first day of the sixth month you will be eligible for payment if otherwise entitled.
18. How old must I be to file and be eligible for a Tier 1 total and permanent disability under my RRBDA?
You can be any age and file for your RRDA as long as you are permanently disabled for all possible types of work; AND have stopped any “Substantial Gainful Activity”; AND have at least 120 months of creditable railroad service; OR have at least 60 months of creditable service after 1995.
19. What is “Substantial Gainful Activity”?
Substantial Gainful Activity or SGA is a prerequisite qualifier for total and permanent RRDA. It is defined as: “the performance of significant duties, which are usually done for pay or profit, over a reasonable period of time”. In order to become entitled to a permanent and total RRBDA you must cease and be unable to engage in SGA.
20. What are “Significant Duties”?
Significant duties are activities that are useful in a job, or operation of a business that have an economic value. If someone would normally pay someone to do something for some activity, that would qualify. It is a pretty low standard even though the activities are called “significant”.
21. Why is 120 months of creditable service important as it pertains to my RRDA?
If you have at least 120 months of creditable railroad service, your Tier 1 can begin on your annuity beginning date, however; your Tier 2 component cannot begin until the first month you are age 62.
22. What is meant by “Tier 1” and “Tier 2”?
Tier 1 and Tier 2 are tiers that differentiate benefits based on type of annuity and your age and entitlement thereto. It is complicated and impacts both your earnings that can affect your disability annuities. So it is best to refer to Form G-177 as promulgated by the RRB to determine where you might fall and what the offsets might be. It does a very good job in breaking down entitlement to annuities by tier and age as well as annuity, status and amount. Further information on this rather complex subject is beyond the reach of this question and if you are able you might want to contact your nearest RRB field office and request Booklet RB-1 “Age and Service Employee Annuities” or Booklet RB-1D “Employee Disability Benefits” before you file for your annuity. Both booklets are also available at www.rrb.gov
23. Must I stop my railroad employment to collect my RRBD or RRE annuities?
Yes, in order to receive either your RRBDA or RREA you must stop work for pay from the railroad’s payroll. For RREA you must also give up all rights to further employment by the railroad. However, should either annuity be awarded, you cannot be paid for any month in which you return for work for a railroad employer.
24. What are the preliminary requirements for me to fulfill if I want to be successful in my RRBDA disability claim?
In order for you to be eligible for an occupational disability annuity through the RRB is that you must have a permanent mental of physical condition that is severe enough that it prevents you from the performance of the full range of duties of your regular railroad occupation.
25. If I am turned down initially, what can I do to protect my rights and appeal?
If your initial claim is turned down, within sixty days you must write the Railroad Retirement Board’s Reconsideration Section at 844 North Rush Street, Chicago, IL 60611-2092 and ask them to reconsider your claim and tell them why you think they were wrong and why you should get your benefits.
26. What happens next?
Next, once the RRB has accepted your request for reconsideration they will write you a letter telling you that they have received your request and have forwarded it on for appropriate review at the unit to review and take necessary action. Cases received are reviewed in the order in which they are received. Without the addition of further evidence, your claim will be reviewed on the merits based on the record that they received from the initial claims office.
27. Can I supplement the record with more medical records when I ask the RRB to review their initial denial of my claim?
Yes you can. But, if you do not have the records to send yet, let the RRB know this at the time of your request so that the request for review and review will not start unless and until the records for which you wait arrive or thirty days after your request is filed, whichever comes first.
28. Will the RRB send me out for a medical examination by one of their contract physicians?
Yes, while your claim is pending, if the RRB determines that there is not enough medical evidence upon which to grant to you the benefits you seek, the RRB may ask you to report to one or more medical examinations that you must attend.
29. What happens next?
Within thirty or so days after your request for review is made or your medical record is complete (sixty days after your request for review) the RRB will review your first appeal and write you a letter explaining their decision to either grant or deny you your benefits.
30. At the initial stage, what will the RRB decide?
The RRB will decide whether or not you are physically and mentally able to perform the duties of your regular railroad occupation based on the medical evidence in your file.
31. How will they notify me that my initial claim and reconsideration is denied?
The RRB will send you a letter setting forth what your claim is for and what the medical evidence is that they considered in denying your claim. They will also tell you why they denied your claim, most often stated that “After a careful review of all the evidence submitted, it has been determined that your condition is not severe enough to prevent the performance of the duties of a ______ “ (insert your last railroad occupation).
32. What does the RRB consider at this point?
The RRB considers the requirements of your last RRB occupation, what you can lift, how often you can lift it. The RRB will consider if you can climb steps and ladders, stoop, crouch, crawl, work at heights and in exposure to extreme temperatures and vibration. The RRB will also consider how much you can push, pull or lift and how often you can do these things.
They will also consider your vocational report that you completed and submitted to the RRB that sets forth the general requirements of your former work. They will then apply your capabilities to see if you are capable of performing your past work as you described it, as it is within the physical and mental limitations as you have indicated to them.
33. What happens if they turn me down again after my initial request for review?
After your initial claim is turned down again after your initial reconsideration and if you want to appeal your “reconsideration decision” and have your case heard before an Administrative Law Judge or Hearing Officer to present more evidence and testimony, your time to appeal is limited. The law requires you to file your appeal within 60 days of the date of the reconsideration decision.
34. Is there any special form I must use to prosecute my RRB appeal to the next level?
Yes, if an appeal is made, the appeal to have your case heard by a judge must be submitted on Form HA-1 and it must be received at the RRB’s office within 6o days of the date of your letter from the RRB turning down or denying your first appeal of the initial denial. Though there are special circumstances where the 60-day period may be waived, and the timeliness requirement set aside, these circumstances are rare and require truly good cause for the late filing. The HA-1 Form may be found below and downloaded and used by the reader.
35. What do I have to tell the RRB on Form HA-1 in order for them to find a basis for my appeal?
Just tell them why they are wrong. A simple statement stating why you cannot be engaged full time without interruption form your prior job duties would be a good starting point and thereafter writing how your different physical and mental conditions affect your ability to return to work.
36. Can I supplement the record once it is before a Hearing Officer?
Yes, the record may be supplemented with additional new medical, expert or testimonial evidence right up to the time of your hearing.
37. Where will my hearing be?
Your hearing will be in the city in which you live or a location within a reasonable distance therefrom. You will not be required to go to the RRB offices in Chicago as often thought.
38. What will the “Hearing Officer” do on my Case?
Your hearing officer, who works at the RRB’s Bureau of Hearings and Appeals, is usually a railroad worker of many years who will act independently of the initial determination of your claim and the reconsideration decision made on your claim. He or she is supposed to be fresh eyes and a fresh view on your evidence and claim.
39. Do I have the right to be represented by counsel before the Railroad Retirement Board after I have filed a claim for a disability annuity?
Yes, you have the right to be represented before the RRB at any time.
40. Does the RRB set or have to approve attorneys’ fees?
The RRB does not set attorneys’ fees but the fee agreement that you and your attorney agree upon must be in writing, signed by both parties and submitted to the RRB for approval. Fees must be reasonable. Under the Railroad Retirement Act, an attempt by an attorney or firm to collect a fee that is a “gross overpayment” for the services rendered may result in the RRB’s refusal to permit the attorney to represent claimants in future cases.
41. Will my attorneys’ fees be deducted from my award by the RRB?
No, the RRB will not deduct either fees or the costs expended by your attorney in your behalf in the prosecution of your claim. This is exactly the opposite of the fee system in the arena of Social Security Disability.
42. How much are RRB fees at Mike Murburg, P.A.
Our fees are only 25% of past due benefits for cases that are decided prior to hearing and 33 1/3% if your case goes to hearing. In the rare event that a case must be appealed after a hearing to the RRB Board of Hearings and Appeals in Chicago and/or re-tried due to judicial error, due to the additional time, effort and skill required to do this, our fees cap at 40% of past due benefits awarded.
43. Do I really need an attorney?
An experienced attorney can be an invaluable asset in a RRB disability case. After reading your claim and case file, your experienced attorney will know what evidence needs to be gathered and medical opinions obtained so that your case can be won. They can also determine from the lower court claim rulings exactly what the RRB might need to grant you benefits without the necessity of having a hearing. Just as you would not want someone new doing your job at the railroad, you should not make your own case your first try at the legal system. There is too much depending on it. Expertise really does matter in achieving results.
44. After I retain my attorney, will my attorney thereafter receive notices of all decisions on my claim?
Yes, your attorney should receive all notices of all decisions on your claim after they are issued. You may want to check with your attorney to make sure he or she is getting them as even though your attorney is supposed to receive these documents, remember, you are dealing with a large bureaucracy and they fail to send out the notices properly unfortunately.
45. When I go to my hearing, what kinds of questions will the Hearing Officer ask me?
Typically the Hearing Officer will place you under oath and ask you for your present address, your height and weight, when you last worked, your job title, the duties of your prior employment, the date on which you felt you could not your job any more, things like that.
The questions will also differ based upon the severity and type of your disabling condition. It is not uncommon to have an officer ask if you can sit, stand and walk without discomfort. He or she may ask if you can drive, how far, if you can walk up and down stairs without problems, can you use public transportation, do you socialize, or have membership in clubs or churches are all fairly typical. They may ask you about the activities and relationships you have had to give up since becoming disabled and why.
You will normally be asked to describe your typical day and bring the court’s attention to any problems or side effects of medications, sleep, chores, diet, special foods or activities you must do, your hobbies, symptoms, pain and what do you do to cope with your symptoms or relieve your pain.
46. How long do hearings last?
Hearings normally last about 45 minutes to an hour.
47. Can I bring Witnesses?
Yes, you or your attorney can bring witnesses to testify as to the onset and continuation of your condition.
48. If I am in pain during my hearing or have to stand up or go the rest room to use it, will I be allowed to do this?
Yes, all you need to do is to raise your hand and ask the Hearing Officer. He or she will freely allow this. Remember, they deal with the truly disabled regularly on a regular and ongoing basis.
49. If I lose at my hearing, what is my next step?
If you lose at your hearing a written decision will be sent to you and your attorney. If the RRB upholds the denial of your claim a further appeal may be taken to federal court.
50. How much time do I have to file my appeal from the RRB’s decision on my case to federal court?
Under the Railroad Unemployment Insurance Act, a claimant has ninety days from the date of the board’s decision to file an appeal in federal district court.
Under the Railroad Retirement Act a claimant has one year after the date of the board’s decision to file a complaint in federal district court to have the court further determine the merits of the case on appeal.
51. Can I work after I receive my Employee Disability Annuity?
Yes, however prior to the age of 65, (67 if born after 1960), disability annuities are not payable in any month in which the annuitant earns more than $780 in gross earnings in any employment or self-employment, exclusive of work related expenses. When a disabled annuitant worked before full retirement age, working may create a presumption that the railroader has recovered from disability no matter how little or how much the employee earns. Earnings are required to be reported promptly to avoid overpayments that you must repay to the RRB. Failure to report earnings could also involve a significant penalty or charge.
52. How can individuals find out more about Railroad Disability Annuities?
To find out more, including the address of the local RRB office serving their area, one may visit the RRB’s website, www.rrb.gov, or by calling an RRB office toll-free at 1-877-772-5772 at the RRB main office located at 844 North Rush Street Chicago, IL 60611-2092