OPM Disability Retirement: The Meaning of Separation from Service

The 1-year rule, or more properly, the Statute of Limitations, continues to be confused at various levels.  The beginning point in understanding the rule must always be to first clarify what constitutes the trigger-point; for, if one does not know what represents the first day of the year, how can one calculate the remaining 364 days?

First, in negative form:  Being on LWOP, Sick Leave, or any time of leave, does not constitute a separation from service.  Indeed, logically, if one reflects upon it for a moment, the very fact that one is on some type of leave would imply that one is on leave “from” an agency, thereby inferring that no separation from service has yet occurred.  Thus, separation from Federal Service is an event which occurs when a Federal or Postal employee affirmatively resigns; is issued a termination or separation letter; or is issued a personnel action on an SF Form 50 or PS Form 50, showing that Federal or Postal employment has been terminated.

For Postal employees, if you continue to receive a “0”-balance pay stub, it likely means that you have not yet been separated.

Obviously, for Federal Disability Retirement purposes, whether under FERS or CSRS, knowing whether or not you are separated from Federal Service is important, because the Office of Personnel Management will not make a determination on the substantive basis of a Federal Disability Retirement application if it has been filed in an untimely manner (i.e., after a year has passed from the date of separation).

Then, of course, there is also the “other” 1-year rule, of showing that one’s medical condition will last for a minimum of 12 months.  But let us not get ahead of ourselves and confuse and conflate the two.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Back Pay

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, it is important to focus upon the first of the three — preparing.  Preparation often involves thought, reflection, and contemplation.  Formulation requires action; and filing and the time thereafter requires patience.  

In preparing, one must address the issue of how best to survive the lengthy process — does one have sufficient accrued sick leave?  Can one survive without pay and take LWOP during the (potentially) 8 – 10 month process?  Will one be allowed to continue to work, even in a light-duty capacity?  If the latter, then it should be kept in mind that when a Federal Disability Retirement application is approved, such an approval will provide for back pay all the way back to the last time a Federal or Postal employee was paid by the agency — whether it is a dollar, a hundred dollars, or a full paycheck.  

Thus, while acceptance and receipt of donated leave is often desirable, the time of having taken LWOP for any period of time will be negated with the last day of pay.  For example, if a Federal or Postal employee takes several months of LWOP, then accepts a pittance of donated leave, that time of LWOP is lost — for, again, back pay is paid only to the “last day of pay”.  Considerations to be reflected upon when preparing to formulate and file for Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: OPM Disability & OWCP Disability (Continuing…)

A person who is on OWCP Disability payments — 3/4 of one’s gross pay if married or with dependents, or 2/3 of one’s gross pay if single without dependents – may well find the comfort of such payments and the security of such income to be relatively “safe”.  The old adage that one does not read the fine print during times of smooth sailing, and only begins to worry about issues when things go awry, is something to be kept in mind.  If a Federal or Postal employee is receiving OWCP Disability payments, and as such, one’s financial stability is somewhat assured because of it, that is precisely the time to be considering one’s future.  

OWCP Disability payments have a formal designation — it is called “Temporary Total Disability“.  The focus should be upon the first of the three terms — temporary.  It is not meant to be a permanent feature; OWCP is not a retirement system.  If placed on OWCP for over a year, the Federal Agency or the Postal Service will often separate and remove a Federal or Postal employee from the employment rolls of the Agency.  Once removed, the Federal or Postal employee has only up to one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS.  Once that year passes, you cannot file.  Years later, when OWCP & the Department of Labor stop those “Disability payments” for whatever reason, you cannot then start thinking about filing for Federal Disability Retirement benefits under FERS or CSRS. You will be reminded that TTD stands for just that — Temporary Total Disability. It will then be too late.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: Filing within the Statute of Limitations

Under Federal Disability Retirement for FERS & CSRS, a Federal or Postal employee must file for the benefits within one (1) year of being separated from Federal Service. Another way to put it, is that a Federal or Postal employee must file within a year after being terminated as an employee from the Federal Government or the U.S. Postal Service.  Thus, the 1-year Statute of Limitations does not begin from the “date of injury”, or from the date a person went on Sick Leave, Annual Leave, or Leave without Pay (LWOP).  Rather, the tolling of the Statute of Limitations begins when a person is separated from Federal or Postal Service.  

Thus, for example, if a Postal employee continues to receive “zero-balance” paychecks, it is a good indicator (though not a certainty) that the Postal Worker has not been separated from service, but is merely in an LWOP status but still “on the rolls” of the Postal Service.  In most cases, the Federal employee will be informed that he or she is being separated from Federal Service, through a process of personnel actions, resulting in an SF 50 being issued informing the Federal employee of his or her separation from Federal Service.  From that point on, the Federal or Postal employee has one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS.  

Remember, if you don’t file for it, you can’t make any arguments about your Disability Retirement application.  While there are limitations as to amending or supplementing a Federal Disability Retirement application after it has been file, there is not a scintilla of a chance to argue, amend or supplement if you don’t meet the minimum requirement — i.e., filing for it within the 1-year Statute of Limitations.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The 1-Year Rule

Periodically, I remind everyone of the various “1-year” rules which govern Federal Disability Retirement issues under FERS & CSRS.  Since there are multiple applications of the 1-year rule, there is often a confusion which is still prevalent and ongoing. 

Thus, here are some clarifications:  You must file for Federal Disability Retirement benefits under FERS or CSRS either while in the employment of a Federal Agency or the U.S. Postal Service, or within 1-year of being separated from Federal Service. 

There are a couple of exceptions to this 1-year rule:  If you are found to be incompetent, you may be able to get a waiver from the Office of Personnel Management, but this is extremely rare and difficult to obtain.

Another exception, however, is found in the U.S. Court of Appeals case of Johnston v. OPM, where the Court found that if a person was removed for apparent medical reasons, but was never notified by the Agency, then the 1-year rule may be waived (this often happens to Federal and Postal employees who have been on OWCP for many years, and are forgotten and never informed of an initiation of an SF 50 separating him or her from Federal or Postal Service). 

The 1-year rule should not be confused with:  One’s medical condition needs to last for a minimum of 1 year (but this does not mean that you need to wait a year before filing for Federal Disability Retirement benefits; rather, it merely means that your doctor expects that your medical condition will last for a minimum of 12 months). 

I hope that this clarfies any confusions, and further, that it serves as a reminder to anyone who is contemplating filing for Federal Disability Retirement benefits under CSRS or FERS.

Sincerely,

Robert R. McGill, Attorney

CSRS & FERS Disability Retirement: Clarity over Question

While a compromise position on certain issues in Federal Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Federal or Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Agency, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case. 

Now, in those cases where the removal action merely removes a Federal or Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether the Agency was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: When to File

I still get calls by people who state that (A) they are waiting for a year before they are going to file for FERS or CSRS disability retirement, (B)  It hasn’t been a year since they have been on LWOP, but it almost will be, or (C) They are waiting to be terminated so that their year will begin.  Quiz:  Which of the above (A, B or C) is the correct basis upon which to decide to file for Federal Disability Retirement benefits?  Answer:  None of the Above. 

Since OPM disability retirement can take anywhere from 6 – 8, sometimes 10 months to get (beginning the time-sequence from the time a doctor is contacted to provide a medical report, to putting the entire packet together, to getting it to the Agency Human Resources Personnel, to getting it to Boyers, PA, to getting it to Washington, D.C., to getting an initial approval, etc.), it is:  A.  Not a good idea to “wait a year” because there is no reason to wait; B. You don’t need to wait a year on LWOP to file for Federal Disability Retirement benefits, and:  C.  You don’t need to get terminated, or separated from Federal Service, in order to file for Federal Disability Retirement benefits. 

Let me re-emphasize:  The “1-year rule” has to do with the following:  A.  You have one (1) year from the date you are separated from Federal Service to file for disability retirement — but you can file at any time, whether separated or not, as long as it is not after 1 year after being separated from service.  B. Your medical condition must be expected to last for a minimum of 12 months — but your treating doctor should be able to tell quite easily whether or not the medical condition for which you are being treated will last that long — normally within a couple of months of treatment. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability: Perennial Issues

Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms.  The one which needs to be addressed, again, is the “1-year” issue:  there are actually two (2) questions which keep resurrecting themselves: A.  Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year. 

As to the former:  The statute of limitations begins to toll when a person has been officially separated from Federal Service.  This means that the Agency must take you off of the Federal rolls.  If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun.  On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated.  At that point, you have one (1) year to file your Federal Disability Retirement application. 

As to the latter (Issue “B” herein):  In most cases, it is a prospective issue.  It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year.  In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty.  Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway.  In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish. 

Sincerely,

Robert R. McGill, Esquire