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

OPM Disability Retirement: Separation from Federal Service

In preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management under either FERS or CSRS, the “clock” begins to run on the ability to even file, once a Federal or Postal employee has been officially separated from Federal Service.  

By “officially separated”, does NOT mean the following:  Being on LWOP does not begin to toll the statute of limitations; the date of injury does not begin the “1-year timeline”; being away from the job does not start the clock.  What counts as the beginning of the 1-year statute of limitations is the effective date of being separated from Federal Service.  

Such separation is normally accomplished by the Federal Agency and the Postal Service by (a) resignation or (b) an initiation of a proposed removal, then a decision on the proposed removal.  In either event, the result of the action by either the Federal or Postal employee or the Agency, is the issuance of an SF 50, which reflects the personnel action performed by the Agency, effectively and officially separating the Federal or Postal employee from Federal Service.  

Recognizing and knowing the date of separation from Federal Service is important in filing for Federal Disability Retirement benefits under FERS or CSRS, precisely because you only have one (1) year from the date of separation to file for such benefits.  If you file after the date, unless you fall into a very specific and limited category of individuals, you will have forever lost your right to file for OPM Disability Retirement benefits under FERS or CSRS.  You will likely have a “deferred retirement”, but your ability to file will have been lost forever.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Burning Bridges and Walking Away

When a Federal or Postal worker suffers from a medical condition — often, silently, and without complaint — and such medical condition(s) impacts one’s ability to perform the essential elements of one’s job, there is often a tendency to engage in desperate acts, such as resigning, walking away from the job, etc.

After so much time has vested, and has been invested, by the Federal or Postal employee in the pursuit of a Federal or Postal career; and after so much stress, anxiety, sometimes intolerable working conditions are endured; or, having expended so much loyalty and exerted so much effort in doing an excellent job for one’s agency, it is a self-contradiction to simply walk away from the Agency without filing for Federal Disability Retirement benefits, especially when such laws governing Federal Disability Retirement were set up precisely for the type of Federal or Postal worker who has performed well, but has come to a point in his or her career where a medical condition has impacted one’s ability to perform all of the essential elements of one’s job.

Perspectives are often “out of balance” when one suffers from a medical condition.  Before taking steps of “burning bridges” and resigning, it is best to consult an attorney and see what the possibilities are for preparing, formulating, and successfully filing a Federal Disability Retirement application under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire
Postal & Federal Disability Lawyer

 

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: Years Later, Still On the Rolls of the Agency

The Postal Service is especially guilty of this, but many other Federal (non-Postal) agencies are also “negligent” on the issue of keeping an injured worker on the rolls for years on end.

Often, such “non-existent” Federal and Postal workers receive OWCP payments, or simply go on with their lives while unofficially still a Federal or Postal employee.  Never having been separated from Federal or Postal service, such individuals are still eligible for filing OPM Disability Retirement benefits under FERS or CSRS because the 1-year statute of limitations has not been violated.

So long as a Federal or Postal employee files for Federal Disability Retirement benefits under CSRS or FERS within one year of being separated from service, you have met the statute of limitations.  If you were never officially separated from service, then your 1-year deadline never began.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: It Is a Medical Issue

If a Federal or Postal Employee is still on the rolls of the Agency, or if you have not been separated from service for more than 31 days, then the disability retirement application must be routed through your agency before being forwarded to the Office of Personnel Management for processing and review.  If you have been separated from Federal Service — meaning, you have actually been taken off of the rolls of your agency (this does include being on sick leave, or on annual leave, or on leave without pay) — for 31 days or more (but not for more than 1 year, in which case you have lost your right and ability to file for Federal Disability Retirement benefits, because you have allowed the 1-year statute of limitations to pass by), then you must file your case directly with the Office of Personnel Management in Boyers, PA.  Whether routed through your agency or directly to the Office of Personnel Management, remember that a Federal Disability Retirement application is ultimately a medical issue — not a supervisor’s issue, not an agency issue; it is not determined by your agency; your eligibility is not determined by your supervisor.  It is, essentially, and at its very core, an issue between you, your doctor, and your inability to perform the essential elements of your Federal or Postal job.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Back-Pay

Remember to not spite yourself, especially when it comes to financial considerations. If your medical disability is forcing you to take excessive LWOP, it might be better to go “cold turkey” and stay completely out on LWOP while you file for disability retirement benefits. This is because, once you get your disability retirement application approved, you will be paid “back pay” in a lump-sum form, back to the last day of your pay, at the 60% rate from your last day of pay forward for the first 12 months.

Thus, if you work only 2 days out of the week, and you take LWOP for the other 3 days, you are losing 20% of pay, because were you to go out on LWOP, instead of being paid 40% of your salary (2 out of the 5 days), you would be getting back-pay for essentially 3 out of the 5 days (60%). On the other hand, don’t go out on LWOP, then after 4 or 5 months, go back to work for a week — because in that instance, you will never recover the 4 or 5 months of LWOP, because the “last day of pay” will have been paid to you when you went back to work. While all of this may be a bit confusing, it is essential to your financial health and consideration when entering the complex process of Federal Disability Retirement under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire