By Kimberly H. Berry, Esq., www.berrylegal.com
Unfortunately, many federal employees develop serious medical conditions during their career that make them unable to perform the duties of their position and make it important for them to consider filing for disability retirement through the Office of Personnel Management (OPM). This article discusses these issues.
OPM Disability Retirement Applications
Federal government employees in the FERS and CSRS retirement systems through OPM are generally eligible for disability retirement, depending on their time in service, with an individual federal agency. Federal employees in the FERS system typically must have 18 months of creditable service and federal employees in CSRS must have approximately 5 years of creditable service in order to maintain eligibility.
It is important that OPM disability retirement applications should be reviewed by an experienced lawyer before the process begins. Often times there are crucial differences between voluntarily filing for disability retirement while still employed by a federal agency and being removed from federal service for the inability to perform the duties of one’s position. It is important to understand that while many federal agency human resources employees at federal agencies may appear to be helpful, federal employees should not rely on their assistance because they may not provide the most accurate or helpful advice. Their client is the federal agency for which they work, not the federal employees that work for the federal agency in question. Often times a federal agency, for its own reasons, would prefer to see an employee resign or apply for early disability retirement, which can hurt an individual's chances for a successful application.
It is not uncommon for federal employees to face a number of legal issues when going through the disability retirement process. Obtaining legal advice at the beginning of the process, prior to submitting any documentation or filing an application, can give federal employees the best chance of success at obtaining disability retirement from the OPM. It is crucial that federal employees, when considering whether or not to apply for OPM disability retirement, obtain legal advice on many important issues.
Important Factors in the OPM Disability Retirement Process
Two of the more common questions that come up with respect to prospective disability retirement by federal employees follow (although many different types of issues can arise and should be reviewed on a case-by-case basis by an attorney) are the following:
1. Should a federal employee apply for disability retirement early or wait for their federal employer to take action in removing them from employment based on their inability to perform their duties? Depending upon a federal employee's circumstances, it may often times be advantageous for a federal employee to be removed from employment for inability to perform his or her normal duties rather than to voluntarily apply for disability retirement while employed in order to give the employee the best opportunity for his or her application to be accepted by OPM. This issue is often referred to as the Bruner Presumption based on the case of Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993). This should not be attempted without legal advice and representation.
2. Is a federal employee's "disability" well defined in the United States Code and other applicable regulations? If a federal employee’s medical condition does not qualify him or her as "disabled," an application for disability retirement can often be denied. An individual can usually ensure the best opportunity for a successful disability retirement application by utilizing the services of an attorney to work with his or her medical professionals to thoroughly articulate the individual’s medical conditions and the reasons why these constitute a covered disability. It is important to gather support for disability retirement applications, in advance.
Initial Steps in the OPM Disability Retirement Process
Typically, the first step in the OPM disability retirement process is an employee’s realization and/or acknowledgement that he or she cannot continue to perform the duties required of his or her current position. The federal employee seeks medical attention and is then informed that he or she has medical limitations. These medical conditions can be physical or mental, and can be very serious. A federal agency, when faced with these issues from an employee, sometimes can be compassionate and cooperative in enabling a federal employee’s continued employment, and it may even accommodate a federal employee’s physical or mental conditions to allow him or her to stay employed with the agency. Each agency varies in this regard.
Compassion from the federal agency, however, is not always the case. Many federal agencies will attempt to place the employee on administrative leave, sick leave, leave without pay, or in other unfavorable circumstances to encourage him or her to resign from their federal employment. If that does not work, and the federal agency really wants the employee to leave, then it may attempt to remove the federal employee on the basis of his or her disability or for non-disability related reasons. One of the major issues can be where a federal agency attempts to remove someone on the basis of issues that are disability-based, but they do so in a punitive manner. For instance, instead of removing a federal employee for medical reasons, they attempt to do so on the basis of AWOL (Absence Without Leave). Removal, solely on the basis of disability, can be a positive development in certain cases, as the law often presumes (i.e the Bruner Presumption) that if the federal employee is disabled then he or she should be entitled to disability retirement. This sometimes will make it easier to prevail in the federal employee’s application with OPM.
A number of other legal and other issues may arise in the processing of OPM disability retirement applications, such as when to file the application, the deadlines for filing such an application, how to obtain helpful medical statements and other issues; therefore, it is very important for an individual considering this process to obtain legal advice early in the process. This article is only intended for general information. Disability retirement issues are extremely individual in nature and vary in each case. Federal employees therefore need to consult with an attorney for specific legal advice prior to initiating the OPM disability retirement process.
Berry & Berry, PLLC represents and advises federal employees with respect to their OPM disability retirement applications and provides legal advice involving the application process. Please contact our law firm at (703) 668-0070 or www.berrylegal.com to schedule an initial consultation with an attorney to discuss your disability retirement issue.