In moderating the Martindale-Hubbell Message Board for Federal Disability Retirement Issues, two areas of law need clarification for those out there contemplating filing for Federal Disability Retirement under FERS or CSRS: First, the issue of whether a potential applicant needs to wait to be separated from Federal Service in order to obtain the “Bruner Presumption“, before filing for disability retirement.
The short answer is an unequivocal, “No”. To wait for an agency hoping that they will separate you for your medical inability to perform your job, is like waiting for your rich uncle to die and leave you an inheritance: It may never happen, and even if it does, it may not be worth it. While the Bruner Presumption is a nice additional weapon to have in arguing for an approval, it is not a necessary element.
The most important element in an OPM disability retirement case is to have a supportive doctor. Application of the Bruner Presumption — a recognition by the Agency that they cannot accommodate you, and further, that you cannot perform your job as a result of your medical condition, while a weapon in arguing for an approval to OPM, is not necessary in most cases. The point is to make sure your supporting medical documentation is strong, thereby negating the need for the Bruner Presumption.
Further, another common confusion which people have is what it means to be “separated from service”. The Statute of Limitations in Federal Disability Retirement cases is 1 year from the date a Federal Employee is separated from Federal Service. The 1-year does NOT begin when a person is on LWOP, or when a person is on FMLA, or any other reason. The 1-year begins when a person is officially terminated, separated, or taken off of the rolls of Federal Service, or when a person resigns from the Federal Service. It is 1 year from that date that a person must file for Federal disability retirement benefits, or you lose your right forever to do so.
Second, and finally (at least for this particular Blog piece), with respect to the 80% rule — where a person can earn income up to 80% of what one’s former Federal job currently pays: this is in addition to the disability retirement annity that a person receives.
Think about it, and it is logical: disability annuity is not “earned income”; the 80% rule applies only to “earned income”. Thus, for example, a person who was making $60,000 at a Federal job, who goes out on disability retirement, would get $36,000 the first year under FERS (60%), and $24,000 per year every year thereafter (40%). At the same time, that person can go out and make up to $48,000 per year (80% of $60,000), with that amount going up slightly each year (assuming that the payscale in the Federal system goes up each year for that same pay and grade). I hope this clarifies some of the issues that may have given rise to some confusion.
Sincerely,
Robert R. McGill, Esquire
Filed under: Clarifications of Laws or Rules, Federal Disability Judge-Made Decisions Quoted, LWOP and Sick Leave in OPM Disability, OPM Medical Questionnaire | Tagged: 1-year OPM disability rule, Bruner Presumption, Bruner v. Office of Personnel Management, CSRS disability retirement federal attorney, disability retirement for federal employees, earned income concept in OPM disability, federal disability law blog, federal employees disability benefits, federal non disciplinary actions, fers disability retirement law firm, FERS medical retirement, legal representation for injured federal workers, long lwop sick leave for stress, lwop, LWOP in federal disability retirement, one year separated from service opm rule, One-Year Statutory Timeframe, OPM disability retirement, OPM disability Statute of Limitations, Post Office disability, postal service disability retirement, resources for injured federal workers, separated from service, sick leave in OPM disability, some confusion about the opm disability retirement, the 60% and 40% of income concepts in opm disability, The 80% OPM Disability Rule, The Statute of Limitations, The Supportive Doctor, USPS Disability, usps lwop, when should I file for federal disability retirement?, when the federal government doesn't accommodate you, when to apply for opm fers disability retirement |
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