CSRS & FERS Disability: Perennial Issues

Like perennial plants, some issues continue to repeatedly crop up; once planted, they keep showing up in various question-forms.  The one which needs to be addressed, again, is the “1-year” issue:  there are actually two (2) questions which keep resurrecting themselves: A.  Filing a disability retirement application within 1 year of separation from service, and B. A medical condition which must last for a minimum of one year. 

As to the former:  The statute of limitations begins to toll when a person has been officially separated from Federal Service.  This means that the Agency must take you off of the Federal rolls.  If you continue to receive a paycheck, you are likely not separated (unless, of course, it is some form of a severance paycheck); if you receive a paycheck with “0-balances”, you are still not likely separated. If you are injured and you haven’t worked for a year, but you have not received notification that you have been separated from Federal Service, the 1-year mark has likely not begun.  On the other hand, if your SF-50 or PS Form 50 states that you are separated, then you are separated.  At that point, you have one (1) year to file your Federal Disability Retirement application. 

As to the latter (Issue “B” herein):  In most cases, it is a prospective issue.  It doesn’t mean that you must “have been” medically unable to work for a year; it doesn’t mean that you have to wait around for a year, out of work and penniless, for a year; it doesn’t mean that you must be on OWCP or on LWOP or on sick leave for a year — instead, it means that your medical condition must last for at least a year.  In other words, as is the case with most medical conditions, after a couple of months, your doctor should have an opinion — a “prognosis” — of how long your medical condition which impacts your ability to perform the essential elements of your job, will likely last, within reasonable medical certainty.  Indeed, since the Federal Disability Retirement process often takes from 8 – 10 months (from start to finish) to obtain an approval, by the end of the process, the full year will likely have occurred anyway.  In other words, you don’t need to wait around for a year to show that you can’t perform the essential elements of your job; indeed, that would be foolish. 

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM’s Generic Denial

Often, cases are mishandled not because of the “present” mistake, but because the case was never prepared for the “long-term” event.  Let me elaborate and explain. Obviously, an applicant for disability retirement benefits under FERS & CSRS wants to win the case at the earliest stage of the process.  The attorney who is handling any such disability retirement case, similarly, would like to “win” the case at the earliest stage possible.  However, sometimes that is simply not going to be the case. 

In an initial denial, it is often important to not only address the case for the Reconsideration Stage, but also to prepare the case for the next stage — the Merit Systems Protection Board (and, similarly, in preparing an application for Disability Retirement, it is important to prepare such an application not only for the initial review at OPM, but also for the Reconsideration Stage).  By this, I mean that, because there is at least a “possibility” that the disability retirement application will be denied again at the Reconsideration Stage, it is important to point out the deficiencies, the lack of clarity, the inadequate reasoning, the outright lies and mis-statements which the Office of Personnel Management may have engaged in as part of the “Discussion” Section of the denial letter.  Often, while OPM may give some “lip-service” to make it appear as if your case was thoroughly reviewed, a closer reading (on second thought, it need not even be a closer reading) clearly shows that OPM did a shabby job in denying a case.  It is what I ascribe as OPM’s “generic denial” — a denial so devoid of any particularity or care as to reveal a complete lack of proper administrative review of the case.  Such lack of proper administrative review is what needs to be shown; it needs to be shown because, if OPM denies the case again, then it is advantageous to the applicant to have the Administrative Law Judge at the Merit Systems Protection Board see that he will be hearing a case which may not have been necessary — but for the lack of diligence on the part of OPM.

Sincerely,

Robert R. McGill, Esquire