Federal Employee Medical Retirement: The Imperfect Sequence of Filing

If the Statute of Limitations is quickly approaching for a Federal Disability Retirement application under FERS or CSRS, it is important to put aside the procrastination and delay (is that a self-contradiction — to “put aside” procrastination?) and just file the basic forms.  An imperfect filing of a Federal Disability Retirement application is better than no filing at all.  

As has been often stated and restated in previous blogs and articles, one cannot make a substantive argument for a Federal Disability Retirement case (let alone even a non-substantive argument) if one does not first meet the minimum criteria of eligibility by filing a Federal Disability Retirement application in a timely manner.  

The Office of Personnel Management will inform the Federal or Postal worker who files an imperfect Federal Disability Retirement application, of the “missing” items and forms which were not filed, and allow for thirty (30) days to correct the imperfect filing.  This is certainly preferable, however, to not filing at all, and missing the deadline and trying to argue with the Office of Personnel Management the reasons why you did not file on time (actually, there will be no “argument” per se — only silence and being ignored as irrelevant and non-existent).  

Thus, whatever the reasons might be — haven’t received all of the medical reports; the former agency has not returned the Supervisor’s Statement or SF 3112D; haven’t filed for SSDI yet and received a receipt; haven’t …   It doesn’t matter.  What matters is to file the three (3) basic forms on time (SF 3107 or 2801, Application for Immediate Retirement; Schedules A, B & C; and SF 3112A, Applicant’s Statement of Disability).  

Once filed, you have the basis to argue for an approval.  Without having filed, the void, vacuity and silent nothingness of nonexistence will overwhelm the ticking clock which reminds one that the tolling of the Statute of Limitations has come and passed.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement Benefits for Federal & Postal Employees: Which Medical Conditions to List

I am often asked that question — will all medical conditions be listed?  What happens if a medical condition is not listed, but later develops into something serious?  That is the essence of the problem of the unlisted medical condition, of course.  In a FERS or CSRS Federal Disability Retirement application, once the packet is submitted to the Office of Personnel Management and a CSA Number is assigned to it, you are precluded from amending the Applicant’s Statement of Disability by adding further medical conditions.

Thus, the problem in not listing a medical condition (or a symptom thereof) can have exponential significance.  In such a situation, one option would be to withdraw the Federal Disability Retirement application and resubmit it anew.

The loss of time involved, however, is one obstacle which often makes an applicant pause at such a drastic step.  Another problem — one which cannot be overcome — is if you have filed within the statutory timeframe, but the 1-year of separation occurs after you filed your application for Federal Disability Retirement under FERS or CSRS.  In that hypothetical, you are “locked in”, because you cannot withdraw your application.  To do so would leave you with no avenue to “refile”, because the 1-year statute has already passed and precludes you from filing again.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Reminder on the 1-Year Statute

Just a reminder, which is given because of continuing and repetitive questions about the 1-year statute of limitations.  Remember that those who wish to file for Federal or Postal Disability retirement benefits under FERS or CSRS must do so either (A) while a Federal or Postal employee (18 months minimum under FERS; 5 years minimum under CSRS), or (B) within 1 year of being separated from Federal Service.  By “separated” it means actually being terminated from the Federal Agency, whether by resignation or by Agency action.

The 1-year statute of limitations does not begin to toll except when you are separated from Federal Service.  Thus, being on LWOP does not begin to toll the statute; being injured or on OWCP does not begin to toll the statute.  By “toll the statute”, what is meant is that the right to file for OPM Disability Retirement benefits for FERS or CSRS employees does not begin to “count down” unless and until you are actually separated from Federal Service.  This is meant as a continuing clarification of the issue, written because of the questions which have been asked of me over the past month or so.

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

OPM Disability Retirement: Clarification of Issues for FERS & CSRS Employees

In moderating the Martindale-Hubbell Message Board for Federal Disability Retirement Issues, two areas of law need clarification for those out there contemplating filing for Federal Disability Retirement under FERS or CSRS: First, the issue of whether a potential applicant needs to wait to be separated from Federal Service in order to obtain the “Bruner Presumption“, before filing for disability retirement.

The short answer is an unequivocal, “No”. To wait for an agency hoping that they will separate you for your medical inability to perform your job, is like waiting for your rich uncle to die and leave you an inheritance: It may never happen, and even if it does, it may not be worth it. While the Bruner Presumption is a nice additional weapon to have in arguing for an approval, it is not a necessary element.

The most important element in an OPM disability retirement case is to have a supportive doctor. Application of the Bruner Presumption — a recognition by the Agency that they cannot accommodate you, and further, that you cannot perform your job as a result of your medical condition, while a weapon in arguing for an approval to OPM, is not necessary in most cases. The point is to make sure your supporting medical documentation is strong, thereby negating the need for the Bruner Presumption.

Further, another common confusion which people have is what it means to be “separated from service”. The Statute of Limitations in Federal Disability Retirement cases is 1 year from the date a Federal Employee is separated from Federal Service. The 1-year does NOT begin when a person is on LWOP, or when a person is on FMLA, or any other reason. The 1-year begins when a person is officially terminated, separated, or taken off of the rolls of Federal Service, or when a person resigns from the Federal Service. It is 1 year from that date that a person must file for Federal disability retirement benefits, or you lose your right forever to do so.

Second, and finally (at least for this particular Blog piece), with respect to the 80% rule — where a person can earn income up to 80% of what one’s former Federal job currently pays: this is in addition to the disability retirement annity that a person receives.

Think about it, and it is logical: disability annuity is not “earned income”; the 80% rule applies only to “earned income”. Thus, for example, a person who was making $60,000 at a Federal job, who goes out on disability retirement, would get $36,000 the first year under FERS (60%), and $24,000 per year every year thereafter (40%). At the same time, that person can go out and make up to $48,000 per year (80% of $60,000), with that amount going up slightly each year (assuming that the payscale in the Federal system goes up each year for that same pay and grade). I hope this clarifies some of the issues that may have given rise to some confusion.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Don’t Rely Upon the Waiver Statute to Be Able To File

If an individual fails to file for Federal disability retirement within one (1) year of being separated from Federal Service, he/she loses the right to file forever, unless the individual is able to show mental incompetency – and that is indeed a very high standard to meet. The relevant statutory provision is found at 5 U.S.C. Section 8453; to wit:

A claim may be allowed under this subchapter only if application is filed with [OPM] before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by [OPM] for an employee or Member who, at the time of separation from service or within 1 year thereafter, is mentally incompetent if the application is filed with [OPM] within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.

Note the heavy burden of relying upon this statute if you failed to file for disability retirement within the 1-year statutory timeframe: First, note the discretionary nature of the statute – that even if incompetency is found, the time limit “may be” waived – not a certainty, but discretionary (now, it is true that as the Board in Barton v. OPM, DC-844E-03-0366-I-1, 2004 decision, stated, the Board will review a decision by OPM “to see if OPM abused its discretion or if its decision was wholly unwarranted” – but again, no one should want to rely upon such a review to be able to file for disability retirement).

Second, you would need to have strong medical evidence that you were “mentally incompetent” within the 1-year timeframe after separation from Federal Service. Third, even if you were found to be mentally incompetent, the 1-year statutory timeframe to file begins to run either when a fiduciary is appointed, or when the person is found to be competent, whichever comes first.

Don’t rely upon the waiver provision. Once a FERS or CSRS member finds that he/she cannot perform one or more of the essential elements of the job, it is time to file.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Remember the Basics

Time goes by too quickly; Christmas, New Years, winter — and now the dawn of Spring approaches; and the timeline of 12 months from the time one is separated from Federal Service can suddenly come and go; prospectively, 12 months can seem like a sufficient amount of time; retrospectively, when 10 months passes by and suddenly there are only a couple of months left to file; where has the time gone? Do not wait until the last moment; all arguments about one’s medical inability to perform the essential elements of one’s job become irrelevant if you miss the statutory deadline. To be eligible for Federal Disability retirement, you must file within one (1) year of being separated from Federal Service. All of your medical records and reports will be worth merely the paper they are written on if you fail to file within that 1-year deadline. The statutory clock begins to toll once you have been separated from Federal Service. Always keep the basics in the forefront of your mind; otherwise, if the basics are not attended to, everything else becomes a moot point.

Sincerely,

Robert R. McGill, Esquire

Reminder: Statue of Limitations on Filing for FERS & CSRS Federal Disability Retirement

At various times, in various forums, I have noted some confusion on the issue of when an individual can/must file for disability retirement, so I want to clarify some of the issues.

Confusion #1: Do you have to wait 1 year in order to file for Federal dislability retirement? The answer is “No” — the “1-year requirement” is merely that your medical condition is expected to last for at least a year. Thus, if you have a medical condition that impacts your ability to perform the essential elements of your job, your doctor will certainly be able to tell you whether he/she thinks it will last for at least a year. Thus, don’t make the mistake of thinking that you actually have to wait for a year with your medical condition before you can file for federal disability retirement; it merely means that your condition is expected to last at least 1 year, and doctors can normally provide a prognosis of the expected amount of time.

Confusion #2: You have 1 year from the time of your injury to file for disability retirement. The answer: “No” — you have 1 year from the date you are separated from Federal Service to file for disability retirement. If you do not file prior to the expiration of that 1 year statute of limitations, you lose your right forever. Some confuse the 1-year requirement with thinking that it is within 1 year of being on Leave Without Pay, or 1 year from being away from the job, etc. The 1-year requirement is 1 year from the day you have been separated from Federal Service.

Finally, remember that disability retirement can take anywhere from 6 months to a year to obtain, because of the bureaucratic maze which one must go through in the process of filing; thus, it is often a good idea to file sooner, rather than later. Once you realize that you are no longer able to perform one or more of the essential elements of your Federal job, and once you have the support of your doctor, it is time to file.

Hope this clears up any confusions

Sincerely,

Robert R. McGill, Attorney

In Filing for Disability Retirement, Remember the Basics

In the opening sentence of Davis v. the Office of Personnel Management, PH-844E-06-0242-I-1, the Merit Systems Protection Board reminds us all that the “burden of proving entitlement to a retirement benefit is on the applicant…” In past federal disability articles, I have discussed a variety of issues, from important legal principles based upon Bruner v. OPM, to showing how to build the “proper bridge” in preparing a disability retirement application. In preparing a disability retirement application, however, remember to always satisfy the “basics”, because if you fail at the basic level, you will never get to the “substantive” level to argue your case. Davis is a case about a disability retirement applicant whose application was denied at the first Stage (the “initial application stage”) because she “did not present any medical evidence to support her claim.” Strike One — how can you file a medical disability retirement application without any medical evidence?

Next, Ms. Davis failed to file her “Request for Reconsideration” within the 30-day period. She filed it 5 days late. Strike Two — you won’t even be able to argue the substance of your disability retirement case if you don’t take care of the “basics” — like filing your Request for Reconsideration in a timely manner. In OPM’s denial letter, it clearly stated: “Your Request for Reconsideration must be received by OPM within 30 calendar days from the date of your initial denial letter.” Ms. Davis had no excuse.

Now, every now and then — but very, very rarely — an exception will come along. Such was the case in Goodman v. Office of Personnel Management, 100 M.S.P.R. 43 (2005), which was cited as a distinguishing case by the Board. In Goodman, multiple factors allowed the appellant to be excused for her tardiness — including, being misled by OPM verbally over the telephone; receiving the denial letter some three weeks after being postmarked (thereby leaving her with only a week to respond); and being a quadriplegic who had to rely upon others to assist her in responding. Be aware: only under the most exceptional of circumstances will being late in responding be excused. You must take care of the basics, before going on to the substance of a case.

Ms. Davis filed an appeal to the Full Board. Her appeal was, as you might guess, denied. The Board stated that in cases such as this, where Ms. Davis “fails to show that she was not notified of the deadline and was not otherwise aware of it, or that she was prevented by circumstances beyond her control from making the request within the time limit, we will not reach the issue of whether OPM was unreasonable or abused its discretion in denying her untimely request for reconsideration.” (italics added).

Strike three. Ms. Davis is out. As I have reiterated throughout this article, unless you take care of the basics, you cannot even get to the substance of your disability retirement claim. Like the parable of the mighty army which could defeat its enemy, that army could not survive to fight the battle unless it took care of a basic need — water for its troops to cross the scorching desert to meet its enemy. It failed to take care of the basics.

In life, we are all busy doing multiple things, and when a Federal or Postal Employee comes to a point in his or her life where filing for disability retirement becomes a necessity, it is often a good idea to hire an attorney — not only to ensure that the “basics” are taken care of, bur further, to make sure that you get the opportunity to argue the substance of your particular case. My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at federal.lawyer@yahoo.com, or visit my website at www.FederalDisabilityLawyer.com.

As an aside, let me point out some other “basics”:

1. Remember that you have one (1) year from the date you are separated from service to file for disability retirement. The one (1) year date does not begin when you stop working; it doesn’t begin when you get placed on LWOP; it doesn’t begin from the time you get disabled. It begins from the date you are separated from Federal Service.

2. For my clients (and those who are not my clients) whom I got disability retirement for — remember that you are allowed to get another job and make up to 80% of what your position currently pays, in addition to the disability annuity you are receiving. It is earned income that counts — not rental income, not investment income, and certainly not your disability income.

3. A teaser — I will probably address this issue in my next article — the Office of Personnel Management seems to, more recently, be scrutinizing those who are already receiving medical disability retirement benefits. For those of my clients (and those who are not my clients) who receive disability retirement, remember to take OPM’s Medical Questionnaire seriously. I have had more cases than usual where disability annuitants have had their disability income discontinued. More on this later….

 

Robert R. McGill, Esquire