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

Federal Employee Medical Retirement: NRP, the Flight Surgeon and others

What do the National Reassessment Process for the U.S. Postal Service, the Flight Surgeon for the Department of Transportation, Federal Aviation Administration, and other entities/personnel from other agencies have in common?  

With respect to Federal Disability Retirement applications under FERS or CSRS, the commonality which weaves throughout all is the ability to declare an effective end to a Federal or Postal employee’s career, by asserting that the Federal or Postal employee can no longer perform one or more of the essential elements of his or her job, and because the agency is unable to accommodate the Federal or Postal employee, the resulting option left is to file for Federal Disability Retirement benefits with the Office of Personnel Management.

Logically, one would assume that such an agency action would result in essentially an automatic approval of a Federal Disability Retirement application.  Such an assumption would be erroneous, and to proceed to prepare, formulate and file a Federal Disability Retirement application based upon the erroneous assumption could result in delay, detriment, and ultimate denial by the Office of Personnel Management.  

One must always remember that, separate and apart from what the Federal Agency or the U.S. Postal Service does, the Federal or Postal employee must always be the one to affirmatively prove one’s case, by gathering and presenting the proper medical documentation, and formulating the nexus between the medical condition suffered and the essential elements of one’s job.  

Whether the Flight Surgeon at the FAA medically disqualifies you; whether the National Reassessment Process makes a declarative statement that no jobs are available to a particular Postal Worker; or whether the Federal Agency states that they are separating you because of your medical inability to perform your job — while the commonality between them exists, it does not extend to the Office of Personnel Management.

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

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

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

Disability Retirement for Federal Government Employees: The Repetitive Reminder

Remember that a FERS & CSRS Disability Retirement application must be filed within one (1) year of being separated from Federal Service.  For some odd reason, there is still some prevailing misconception that the 1-year Statute of Limitations begins from either (a) the date of the onset of an injury, (b) from the date one goes out on LWOP, Sick Leave, or some other administrative leave, or (c) from the date that one is no longer able to perform the essential elements of one’s job — or (d) some combination of the three previous dates.

Whether from confusion, misinformation from the Agency, misinterpretation of what information is “out there” or some combination of all three, the Statute of Limitations in filing a Federal Disability Retirement application under FERS or CSRS is one (1) year from the date that a Federal or Postal employee is separated from his or her agency, or from the Postal Service.  Inasmuch as a Federal Disability Retirement application under FERS or CSRs will often taken 6 – 8 months (minimum) to get a decision from the First Stage of the process, it is a good idea to get started earlier, rather than later.

Sincerely,

Robert R. McGill, Esquire