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

Federal Disability Retirement: Using an Agency’s Action

Agencies will often act in predictable fashion; they act based upon prior actions engaged in; they act as an organic constituent of procedures and policies previously followed (often blindly and without thought) in the past; they act in self-interest, and often with a very narrow, myopic path and goal.  

If an agency ignores the medical conditions and the documentation submitted showing the medical conditions of a Federal or Postal employee, and removes an individual from his or her Federal position based upon reasons other than one’s medical inability to perform one’s job (whether intentionally or because no one bothered to look at the medical documentation), then the resulting action can obviously impact a Federal Disability Retirement application under FERS or CSRS.  Often, the Agency’s general counsel will be the first person to finally listen to reason, and by then an appeal has been filed with the Merit Systems Protection Board, for the sole and narrow purpose — not of overturning the termination or getting one’s job back, but — of rescinding the adverse decision of removal and reissuing a removal based upon one’s medical inability to perform one’s job.  

This course of action, however, is not always necessary.  Often, the adverse action, the delineation of poor performance, etc., can be directly tied to one’s progressively deteriorating medical condition, and the Agency’s own actions can be used to one’s advantage in proving a Federal Disability Retirement case.  Each case is different, and discretion in fighting for that which is helpful, and recognizing that what may “appear” to be adverse, is actually to one’s benefit, is the key to winning a Federal Disability Retirement case under FERS or CSRS.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: RIF

If a person is separated from Federal Service pursuant to a Reduction-in-Force, can he file an application for Federal Disability Retirement benefits under FERS or CSRS?  As with all such questions, “It Depends”.  If a person has a medical disability prior to the separation from service, and the doctor will state that prior to the separation, the Federal or Postal employee could no longer perform one or more of the essential elements of the job, then the answer is that he has a Federal Disability Retirement case.  Whether from a RIF or for some other reasons is ultimately irrelevant; the point is that one must ultimately show that prior to separation from Federal Service — any type of separation — the connection between the medical condition and the type of job one has, must be made.  Remember, further, that during the time of Federal Employment, if a person was receiving OWCP partial disability payments for an hour, two hours, three hours, per week or per day, that is further evidence that the Federal or Postal employee was unable to perform all of the essential elements of one’s job.  For, as with any full-time Federal sector job, being able to work 8 hours per day, 5 days per week, is part of the essential element of such a job.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Service Disability Retirement: Termination

Termination by a Federal Agency or the Postal Service can be a trying time, even if it has been a long time in expectancy.  The key is to try and begin negotiating with the agency even before the Notice of proposed termination is issued.  During that period when you know that the Agency is considering filing a Notice of Proposed Termination, is precisely the window of opportunity to try and convince & persuade the agency that the underlying basis of any proposed termination is and should be based upon your medical inability to perform one or more of the essential elements of your job.  This would be done through various means:  submission of medical documentation to your supervisor, agency & Human Resources personnel; addressing key points concerning conduct or performance with medical evidence showing a direct and causal correlation between such conduct or performance with the medical evidence, etc.  If, on the other hand, a Notice of Proposed Termination is issued but one which is not based upon one’s medical condition, that does not mean that the window of opportunity has been lost — it just may mean that the strategy and tactic to try and persuade the Agency to amend the proposed termination may have to be adapted.  The key to all of this is to make sure and aggressively attack, rebut, and answer, at all stages of any proposed termination, in order to gain an advantage for one’s medical disability retirement.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Again — Reminder as to the Statute of Limitations

I have many, many people who are on all sides of the spectrum concerning the time-line of filing for Federal Disability Retirement benefits under FERS & CSRS — people who call me 2, 3, 5, sometimes 10 years after being separated from service, saying they were never informed about the benefit of Federal Disability Retirement benefits.  Obviously, such former Federal employees cannot now (except in extremely peculiar and rare circumstances) file for Federal Disability Retirement benefits, under either FERS or CSRS. 

Then, there are those who are still “on the rolls” — those who have never been separated (normally because of the negligence or neglect of the Agency) from Federal Service, who call to ask whether they can file for Federal Disability Retirement now.  The answer is most often, Yes, and furthermore, once the disability retirement is approved, the annuitant can receive back-pay all the way back to the last date of pay.  Then, there are those who call me in a state of panic, saying that it has been almost a year after the injury; is it too late to file?  No, it is not too late, so long as it has not been over one year from the time of separation from service.  Thus, here is a reminder (again):  A Federal or Postal employee has up until one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS, from the time of being separated from Federal Service — meaning, when you have been terminated from being a Federal or Postal employee, and are off of the “rolls” of the agency.  I don’t know how to make this any clearer.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Service Disability Retirement: After a Resignation

Anyone and everyone who has followed my blogs or my more lengthy articles knows that an individual has up to one (1) year to file for Federal Disability Retirement benefits under FERS or CSRS, after being separated from Federal service.  The clock begins to run upon a resignation by a Federal employee.  The actual date of separation should be ascertained on the “Form 50” or “PS Form 50”, as a personnel action.  There are many reasons why an individual resigns.  Perhaps it is because of an impending adverse action; a threatened adverse action; a fear of a future adverse action; or because a Federal or Postal employee can no longer perform one or more of the essential elements of one’s job. 

Whatever the reason, if an individual has a medical condition such that he or she could no longer perform one or more of the essential elements of one’s job, prior to the date of the resignation, then there is a good chance that the (now former) Federal or Postal employee may be eligible for disability retirement benefits.  Indeed, my view as an attorney who exclusively represents Federal and Postal employees to obtain Federal Disability Retirement benefits, is that if you have invested a considerable number of years of your life in Federal Service, then you should seriously consider whether your medical condition was a primary, or even a contributing, factor in your resignation decision.  Don’t let the clock run for too long; it may pass quietly, to a time when it is too late.

Sincerely,

Robert R. McGill, Esquire