By Kimberly H. Berry, www.retirementlaw.com
Disability retirement for federal employees is an important right. It is also important to ensure that a federal employee obtains legal advice from a lawyer with federal retirement law experience to provide an individual with the best chance for approval. It is important to note that disability retirement decisions are made not by the federal agency that the individual was employed by, but rather by the Office of Personnel Management (OPM).
Federal employees are generally covered by two different types of retirement plans, the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS). Both types of federal employees are eligible for disability retirement should the need arise. In the case of federal employees in CSRS, in order to be eligible they generally must have five (5) years of federal service. For the more numerous FERS employees, that requirement has been shortened to having 18 months of creditable service. While disability retirement before the OPM can require significant effort and may be a detailed and complex process in many cases, entitlement to these benefits is based on a disability which is suffered by a federal employee which prevents them from performing the duties of their individual position. This is different than being disabled from working any position. Furthermore, it is not required, for approval, that the disability be related to a workplace injury. As noted above, the approval process for OPM Disability Retirement distinguishes federal disability retirement from the on-duty requirements of injuries for purposes of federal workers compensation through the Department of Labor, Office of Workers' Compensation Programs (OWCP).
The most critical issue for approval for OPM disability retirement is the requirement that the application be filed no later than one (1) year from the date of a federal employee’s separation from employment, be it voluntary or involuntary. Federal employees often resign or are terminated from federal service, but still retain the right to file for disability retirement if done timely. This deadline cannot be overemphasized. We usually advise our clients to file for disability retirement early due to the strict filing deadlines. If an application is not timely received by OPM, then it is highly likely that OPM disability retirement will not be approved. Keep in mind that this is different than deadlines before other agencies, where the application could be postmarked by the due date. Under 5 U.S.C. § 8453, an application for disability retirement under FERS must be filed with an employee’s employing agency before the employee separates from service or with the former employing agency or OPM within 1 year after the employee’s separation. Bruce v. Office of Personnel Management, 119 M.S.P.R. 617, ¶ 7 (2013).
Disability Application Process
The OPM disability retirement application process can be started while a federal employee is still employed by a federal agency or after they have been separated (up to one year following separation). We also advise federal employees, in conjunction with their OPM disability retirement application, to apply for social security benefits as is required for processing. An approval from Social Security is not required for disability retirement approval, but proof of an application for such benefits is. When a federal or former federal employee decides to file for OPM disability retirement and the federal employee is still employed, the first step is to work through an attorney to confirm that the federal agency cannot accommodate the individual in another position. It is important to keep in mind that the burden of proving entitlement to OPM disability retirement rests with the federal employee unless they have been terminated for medical inability to perform.
Additionally, if still employed, the federal agency will have to indicate whether or not the federal employee can be accommodated. The federal employee will want to work this out, in advance, if possible. In most cases, accommodation is not available. As a result, it is usually important to confirm that the federal agency cannot accommodate the federal employee’s disability by placing them in another position. This issue generally has not been a significant problem in our experience. Additionally, there is a requirement that the disability involved must be expected to last for at least one (1) year in length.
Medical Professional Opinion
One of the critical components of the OPM disability retirement application process is to obtain the assistance of a medical professional who will provide the key documentation needed for the OPM approval process. OPM considers medical documentation supplied by either a licensed physician or other health care practitioner. 5 C.F.R. 339.104. This is typically completed by a physician or other health care specialist that has observed the federal employee’s serious medical condition and can provide their medical opinion on the issue.
It is very helpful to have counsel coordinate with one’s medical professionals because they are often confused by the application process and we can assist them. Our OPM disability retirement lawyers assist federal employees in the preparation of their OPM disability retirement applications. We work with the individual’s personal physicians, represent the individual before his or her federal agency and/or directly work with OPM in preparing the disability retirement application for submission. Usually, a current federal employee’s agency will process the disability retirement application through the agency. If a federal employee has been separated for more than 31 days, a former federal employee is usually required to submit his or her disability retirement application directly to OPM. In either case, it is important to work with the federal employee’s personal medical professionals to best facilitate the documentation needed for approval. It is important to supply as much medical documentation and other witness documentation in support of the disability as possible to support a claim that a federal employee is unable to continue in their present position.
The OPM Standard of Proof
OPM generally approves applications for OPM disability retirement where the federal employee or the former federal employee can show that, based on the evidence submitted, whether or not the employees' medical impairment precludes him or her from rendering useful and efficient in his or her position. 5 U.S.C. § 8337 provides this standard:
(a) An employee who completes 5 years of civilian service and has become disabled shall be retired on the employee's own application or on application by the employee's agency. Any employee shall be considered to be disabled only if the employee is found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee's position and is not qualified for reassignment, under procedures prescribed by the Office, to a vacant position which is in the agency at the same grade or level and in which the employee would be able to render useful and efficient service. . . .
Id. (emphasis added).
The Bruner Presumption
It is important to also consider the effect that a removal from the federal service, based on medical inability, has on filing for disability retirement. If a federal employee is removed for medical inability to perform, the Merit Systems Protection Board (MSPB) consider this to be primary evidence of eligibility for disability retirement. In other words, it makes qualifying for OPM disability retirement much easier for the federal employee. This is known as the Bruner presumption, which was taken from the case of Bruner v. OPM, 996 F.2d (Fed. Cir. 1993). In cases where OPM contests qualification for disability retirement, the Bruner presumption shifts the burden of proof to OPM to prove why the individual should not be entitled to retirement, instead of the other way around.
Issues Following Retirement Approval from OPM
If OPM ultimately approves a federal employee’s disability retirement application, an individual is still generally permitted to maintain other, non-federal employment, subject to an 80% earnings limitation which is helpful to many annuitants. This can be a significant benefit. Following approval, OPM disability retirement can be terminated by OPM only under certain conditions which rarely occur. These can include the following conditions:
(1) the individual has medically recovered from their disability condition;
(2) the individual exceeds the 80% earnings limitation in their new employment; or
(3) the individual is reemployed in the federal service in an equivalent position held prior to retirement.
Conversion to Regular Retirement for FERS Annuitants
If none of these issues present themselves, the individual will continue in disability retirement status until age 62. As OPM provides, for FERS annuitants, in their brochure:
"Your annuity will be recomputed using an amount that essentially represents the annuity you would have received if you had continued working until the day before your sixty-second birthday and then retired under FERS non-disability provisions. The total service used in the computation will be increased by the amount of time you have received a disability annuity. The average salary will be increased by all FERS cost-of-living increases which occurred during the time you received a disability annuity (even if the adjustment did not affect your annuity). The FERS basic annuity formula (1% of your “high-3” average salary multiplied by your total years and months of service) is then applied, using the adjusted time base and average salary. If your actual service plus the credit for time as a disability retiree equals 20 or more years, the formula would be 1.1% of your “high-3” average salary multiplied by the total of your years and months of service, using the adjusted time base and average salary."
In other words, there is a significant benefit to being able to convert a disability retirement to a regular annuity when the time comes.
Filing for OPM Reconsideration and/or an MSPB Appeal
Following submission of the disability retirement package to OPM, our law firm also represents federal employees in reconsideration requests before OPM where initial applications for disability retirement have been denied. In such situations, it is important to act quickly and with as much additional documentation in support of the disability retirement application as possible. Typically, there is a 30-day window in which to submit additional documentation or evidence to OPM when requesting reconsideration of OPM’s initial decision. In cases where OPM has denied a disability retirement application following reconsideration, we further represent federal employees in appeals of final adverse OPM decisions with respect to disability retirement before the MSPB. In cases where the MSPB does not reverse OPM’s adverse decision, we also represent federal employees before the U.S. Court of Appeals for the Federal Circuit on disability retirement matters.
It is very important for federal employees considering disability retirement to obtain legal advice and counsel to discuss their retirement issues prior to filing an application for disability retirement. Berry & Berry, PLLC represents and advises federal employees nationwide and abroad before their individual federal agencies, OPM and the Merit Systems Protection Board (MSPB) in regard to their federal disability retirement applications and requests for reconsideration. In addition, we also advise federal employees, in advance, as to their potential eligibility for federal disability retirement benefits. Please contact us through our webpage or telephone us at (703) 668-0070 to schedule a consultation with one of our disability retirement attorneys to discuss your individual disability retirement issue.