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

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