FERS & CSRS Disability Retirement: The Complexity of the Simple

Federal disability retirement law, the statutes and regulations which govern eligibility; the multiple case-law opinions from Administrative Judges and Federal Circuit Judges interpreting the governing statutes and regulations; the lawyers who argue different aspects and attempt to “fine-tune” existing law (including this lawyer) — the entirety results in “making complex” that which was essentially simple.

There is an old adage that the King who declared the first law of his Kingdom was really attempting to reduce the unemployment figures by creating the need for lawyers. Indeed, “the law” is often made more complex by lawyers. However, while the multiple issues governing Federal disability retirement law under FERS & CSRS may appear, at first glance, “simple”, it is such simplicity which engenders the complex, precisely because laws which reflect a simple conceptual paradigm require extensive interpretation in order to explain the simpleness of the simplicity. That is why law itself is complex. Don’t let the complex confluse you. As you prepare a disability retirement application, recognize that it is a complex process; at the same time, make sure to explain your medical condition and how it impacts your ability to perform the essential elements of your Federal or Postal position in an easy-going, simple and straightforward manner. Don’t make it complex; keep it simple; but recognize the complexities.

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

Federal and Postal Workers: Things You Shouldn’t Do When Filing For CSRS or FERS Disability Retirement

First, a quick clarification: I have had periodic calls concerning the time-frame in filing for disability retirement. The Statute of Limitations in filing for disability retirement is one year from the date you are separated from Federal Service — not from the date you were injured, or from the time you stopped working, etc. Next, many Federal and Postal Workers ask me to represent them in obtaining disability retirement at the Second Stage (OPM’s Reconsideration Stage), after having filed without representation. I have no problems with that — indeed, sometimes (though rarely), individuals have such a severe degree of medical disabilities that an attorney is not necessary. For the majority of Federal and Postal Workers, however, representation beginning at the initial stage of a disability retirement application is necessary. If, however, for financial or other reasons (including stubbornness), an individual insists upon filing for disability retirement without a qualified Attorney, the following are a few things which you should NOT do in preparing your application:

Do not become non-compliant in a treatment regimen, medication regimen, or any aspect of a reasonable medical regimen designed to treat the disease or injury. This is a sure way to have your disability retirement application denied. For, when an employee “is unable to render useful and efficient service because that employee fails or refuses to follow or accept normal treatment, it is wholly proper to say that the employee’s disability flows, not from the disease or injury itself (as the statute requires), but from the employee’s voluntary failure or refusal to take the available corrective or ameliorative action.” Baker v. Office of Personnel Management, 782 F.2d 993, 994 (Fed. Cir. 1986) (A word of caution: this does not mean that all surgeries must be consented to).

Do not ignore the basis of a Notice of Removal. I have previously discussed the importance of obtaining the Bruner Presumption, whenever possible, in a disability retirement case. Beyond getting the Bruner Presumption, however, is the fact that any implication of misconduct or willful failure on the part of the Federal or Postal Employee should always be appealed, if not to have it completely amended, then to at least have such a basis for removal expunged, and instead to allow for the employee to resign, thereby nullifying misconduct as a basis for separation. Never give the Office of Personnel Management an additional reason to deny your disability retirement application.

Do not have your treating doctors send in medical documentation directly to the Agency Personnel Office. Always take charge of your own disability retirement application. Have the doctors send the medical documentation to you, and personally review and inspect each page of your submission for accuracy, relevance, and applicability to your medical condition. Never blindly submit medical documentation to the Office of Personnel Management. Again, never give the Office of Personnel Management an additional reason to deny your disability retirement application. This advice, of course, goes “hand-in-hand” with my policy of never signing the SF 3112C (Physician’s Statement), which often releases all of the medical documentation directly to the Agency.

These are just three fundamental “Do Not” rules in preparing and filing for disability retirement. When a Federal or Postal Employee comes to me at the Reconsideration Stage for legal representation, I find that I must first correct several fundamental errors committed by the applicant. While I can almost always correct the mistakes already made, the damage can only be minimized, and never completely eradicated, because the error is already known to the Office of Personnel Management. Still, I am normally able to convince the Office of Personnel Management to approve the disability retirement application.

In the course of representing Federal and Postal Workers to obtain disability retirement benefits, I have always tried to emphasize the fact that, while it is each individual’s choice as to whether or not to hire an attorney, you should always proceed with the greatest tool available — knowledge. Disability Retirement is a benefit accorded to all Federal and Postal Employees under FERS and CSRS. However, as with all benefits, the right to it remains unclaimed unless one proves, by a preponderance of the evidence, that one is legally entitled to it. To prove your claim, you must go at it from a position of strength — and this requires knowledge. Like the Mother Rabbit who cautions her bunnies, do not allow lack of knowledge to be your stumbling block.

My name is Robert R. McGill. I am an attorney who specializes in disability retirement claims for Federal and Postal Employees. 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.