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

Postal and Federal Disability Retirement: Periodic Clarifications

Clarifications are needed to be periodically made, based upon questions which Federal and Postal employees continue to ask.  There is often a confusion concerning the “one year” issue — whether it concerns the Statute of Limitations in filing a Federal Disability Retirement application under FERS or CSRS, or the length of time a medical condition must last. 

A Federal or Postal employee must file a Federal Disability Retirement application under FERS or CSRS within one (1) year of being separated from one’s Agency.  The confusion often arises because a Federal or Postal employee is unsure of whether or not such separation from service has actually occurred.  Especially for Postal employees, where the U.S. Postal service will often continue to keep a Postal employee “on the rolls” despite having been on OWCP for many years, the confusion can be understandable.  However, one indicator is that if a Postal employee is continuing to receive zero-balance pay stubs, then in all likelihood that Postal employee has not yet been separated from service, and the 1-year tolling of the Statute of Limitations has not yet begun. 

Because obtaining an approval from the Office of Personnel Management on a Federal Disability Retirement application can take an extraordinary amount of time, however, it is wise to begin the process sooner, rather than later, whether one has been “officially separated” from service or not.  For Federal employees, an SF 50 (Personnel Action) form would systematically be issued showing that a Federal employee has been separated from Federal Service. 

As for the 1-year issue concerning the extent of a medical condition, we will address that issue at another time.

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 CSRS or FERS.  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 Disability Retirement case under FERS or CSRS.

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

Federal and Postal Service Disability Retirement: After Separation from Service

It should be well established for anyone who has looked into Federal Disability Retirement issues, that a person has one (1) year from the time of separation from Federal Service to file for Federal Disability retirement benefits.  Separation from Federal Service can take many different forms:  Resignation; separation for cause; administrative separation based upon one’s medical inability to perform one or more of the essential elements of one’s job; etc.  The latter of these delineated forms (separation for medical inability to perform) is obviously the most beneficial to one contemplating filing for Federal Disability Retirement (first and foremost because it allows for the Bruner Presumption to be applied). 

On the other hand, separation based upon a resignation is often neutral for issues concerning disability retirement (unless, of course, one has been foolish to put into his or her letter of resignation that the reason for the resignation is to go and become a professional poker player for the next year — but even then, if a medical condition existed prior to resignation, one might still be eligible for disability retirement benefits under FERS or CSRS); and, obviously, if the resignation was accompanied by a medical reason, and that particular medical reason was reflected in the SF 50, all the better.  Even separation for adverse actions — if there was a medical condition which existed prior to separation — can be explained away and fought for.  The point here is, regardless of the nature, reason and expressed rationale for separation from service, if a medical condition existed prior to separation from service, such that the medical condition prevented one from performing one or more of the essential elements of one’s job, there is a viable basis for filing for, and fighting for, Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Doctor's Opinion

As an attorney who represents Federal and Postal employees to “obtain” Federal Disability Retirement benefits, it is important to make distinctions within the process of securing the Federal benefit:  while it is important to solicit and secure the medical opinion of the treating doctor, the resistance from such doctors — if in fact there is any resistance at all — most often comes about because the doctor doesn’t understand the “process”. 

Doctors are medical providers.  They are in the practice of medicine because they believe in applying the science of medicine to help their patients get better.  Helping someone obtain Federal Disability Retirement benefits under FERS or CSRS is not part of “practicing medicine”.  Yet, in many ways, it is.  It is part of practicing medicine because, to allow the patient to continue to work in a job which he or she cannot perform, will only exacerbate and worsen the medical condition. 

Further, doctors never like to “disable” their patients.  To counter this medical opinion, it is important to clearly inform the doctor what the process of Federal disability retirement is and is not.  It is the job of the attorney hired to represent a Federal or Postal worker to obtain disability retirement benefits, to clearly and cogently explain the entire process to the treating doctor.  That is what I do, at the very start, in representing my clients.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Last Minute Filing

Too often, I receive calls from Federal and Postal employees (or rather, formerly thereof) who have waited until the very last conceivable moment to file for Federal Disability Retirement benefits under FERS & CSRS.  Yes, I realize that time erodes away slowly, almost imperceptibly, and all of a sudden it is an emergency.  Can a case be put together within a couple of weeks?  Yes.  Is it best to wait until the very last minute?  No.  Remember that all Federal and Postal employees only have up until one (1) year from being separated from Federal Service, to file for Federal Disability Retirement benefits.  But life happens; time slips away; what was once 6 months is now only 30 days, or perhaps 2 weeks. 

I may have told this story before, but here goes:  On the desk of a civil clerk in a local County Courthouse, is a sign which reads:  “The fact that you procrastinated does not make your filing my emergency”.  That is essentially true; however, whenever I get calls by panicked individuals who have failed to use the 1-year Statute of Limitations wisely, in most cases, I have been able to properly put the case together, and file it on an emergency basis.  In such circumstances, adaptation is the key:  some things need to be filed later, but the essential forms to meet the deadline must be immediately filed.  There are very few true emergencies in life, and most cases can meet the deadline — no matter how much the Federal or Postal Employee has procrastinated.  However, it is better not to wait until tomorrow, that which can be done today. 

Sincerely,

Robert R. McGill, Esquire