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

Postal and Federal Disability Retirement: Agency Removal & Resignation

Whether an Agency is willing to wait while a Federal or Postal employee files for Federal Disability Retirement benefits under FERS or CSRS, or if removal becomes the preferred action, is always a concern to the Federal or Postal employee.

Often, no matter what medical documentation is submitted as documentary proof of one’s inability to come to work, an Agency will insist that a Federal employee is “AWOL” because of some minutiae or technicality in the paperwork provided.  Regardless (no, I will not use the grammatically incorrect non-word, “irregardless”, which is a combined double-negative of the suffix and prefix, leaving the root word “regarding” intact, thereby making irrelevant the necessity of both the prefix and the suffix) of the Agency’s actions, it is important for the Federal or Postal employee to proceed with his or her Federal Disability Retirement application.

Attempting to predict how the agency will act or react; waiting upon an Agency’s response — ultimately, one must proceed affirmatively and not be concerned with what the Agency will or will not do.  Concurrently, however, the Federal or Postal employee should respond to an Agency’s removal actions.

Sometimes, if in fact the Agency is able to produce sufficient “evidence” to justify an adverse removal action (lack of sufficient notice; lack of medical justification submitted in a timely manner; violation of PIP provisions; violation of previously-imposed leave restrictions, etc.), an offer of resignation in order to maintain the official personnel file “clean” of any such adverse actions, is a reasonable course to take, both for the Agency as well as for the Federal or Postal employee.

More often than not, the Agency will be responsive to opening a discussion for a mutually beneficial removal based upon one’s medical inability to perform the essential elements of one’s job.  Since the same medical documentation to prove one’s medical disability retirement application should be sufficient to justify such a removal, the timing of such a removal could not be better.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agency Interaction

Federal Agencies often act like little fiefdoms.  This is not necessarily a negative thing; each agency is an independent entity, and each has a province of responsibilities which it must carry out and execute according to the statutory mandate provided by Congress.  As independent entities, each agency acts without coordination or regard to other agencies. 

Thus, while approval for disability benefits from the Social Security Administration will mean an offset of monetary payments under FERS, such interaction between the two agencies simply goes to the financial payments — not to the substantive issues of approval or disapproval of a disability retirement claim.  Similarly, while receipt of temporary total disability payments from the Office of Worker’s Compensation Programs means that you cannot concurrently receive payments under CSRS or FERS disability retirement (unless you are receiving a scheduled award from OWCP/DOL), the substantive basis of approval or denial of a claim rarely overlaps.  This is because each agency has its own independent criteria for eligibility — meaning that, for Social Security, the “disability” has a higher standard of “total disability”, whereas under FERS & CSRS, it is a lower standard of “inability to perform one or more of the essential elements of one’s job”.  Similarly, with OWCP/DOL, the issue of “causality” and whether it is “work-related” is often the important component of consideration. 

All of this is not to say, however, that an approval of a disability benefit from one agency,or a report from a doctor considered for one benefit, should not be used by the applicant for submission to another agency.  Indeed, this should be done — but carefully, and with thoughtfulness. 

Sincerely,

Robert R. McGill, Esquire