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.
Continue reading "Federal Employee Disability Retirement Issues" »
By Kimberly H. Berry, Esq., www.berrylegal.com
Federal employees filing for disability retirement are covered by either the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS). One of the key components of a federal employee’s successful disability retirement application before OPM is the physician’s statement. This article discusses some helpful guidance when obtaining a physician's statement.
Physician’s Statements in OPM Disability Retirement Applications
When seeking disability retirement, a federal employee should present a well-written physician’s statement. When evaluating a federal employee’s disability retirement application, the Office of Personnel Management (OPM) primarily seeks medical evidence that supports the federal employee’s information provided in his or her application. In order for OPM to support a federal employee’s claim that he or she is disabled and unable to provide useful and efficient service in his or her current position, the federal employee should provide a well-written and detailed physician’s statement when submitting the application. In many cases, OPM may deny a disability retirement application without supporting medical documentation. Of all of the items in a federal employee’s disability retirement submission to OPM, the physician’s statement is arguably the most important element of the federal employee’s disability retirement application.
Important Information to Include in Physician’s Statements
Physician statements should include important information about a federal employee’s disability. Unfortunately, OPM’s form SF-3112C and instructions do not actually provide much detail as to what specifically should be included in the physician’s statement. As a result, many physicians are often confused as to what type of information should be included in the SF-3112C. However, based on our experience, we find that it is critical that the physician provide a great deal of detailed medical documentation in the SF-3112(C). The most helpful type of physician’s statement further addresses the federal employee’s specific medical conditions and symptoms, and how they prevent the federal employee from performing his or her job duties as described in the federal employee’s position description.
In preparation for asking a physician to complete the federal employee’s SF-3112(C), the federal employee should provide the physician with a copy or summary of his or her official and actual job duties. For instance, the federal employee should provide a copy of his or her position description to the physician. When preparing physician’s statements, it is important to keep in mind that OPM is not necessarily focused on whether the federal employee is fully disabled from completing a particular type of work. OPM is typically more interested in detailed medical evidence establishing how the federal employee is disabled in such a way that prevents the employee from performing his or her current job duties.
Approaching a Physician for a Statement
When a federal employee retains our firm to assist in his or her disability retirement application, we typically coordinate with the employee’s physician regarding the content needed in the SF-3112(C). We may also help to answer the physician’s questions about the disability retirement process. Many physicians are unfamiliar with the OPM disability retirement process, so we find that it can help to have legal counsel explain the process to them.
Additionally, we often assist the physician by providing him or her guidance as to the type of medical evidence that OPM is seeking when they review the SF-3122(C). Also, because health insurance generally does not compensate a physician for the completion of such paperwork, it is important to offer to pay for the physician’s time in preparing the statement, if appropriate. Typically, most physicians like to help their patients in the disability retirement application process and are usually the first to recommend disability retirement to the federal employee when appropriate and warranted.
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When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. Our firm represents federal employees in the disability retirement process before various federal agencies and OPM. Please contact us at www.berrylegal.com or by telephone at (703) 668-0070, for a consultation to discuss your individual disability retirement matter.
By Kimberly H. Berry, Esq., www.berrylegal.com
In the course of their federal agency career, federal employees may develop serious medical conditions 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).
Background for OPM Disability Retirement Applications
Federal government employees in the FERS and CSRS retirement systems are generally eligible for disability retirement depending on their time in service with an individual agency. Federal employees in the FERS system typically must have 18 months of service and federal employees in CSRS must have approximately 5 years of service.
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.
Federal employees can face a host 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.
Two Important Considerations in the OPM Disability Retirement Process
Two of the more common questions that come up with respect to disability retirement follow (although many different types of issues can arise and should be reviewed on a case-by-case basis by an attorney):
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 individual 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).
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 physicians to thoroughly articulate the individual’s medical conditions and the reasons why these constitute a covered disability.
First 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.
This, 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. 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.
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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.
By Kimberly H. Berry, Esq., www.berrylegal.com
Our law firm handles many different types of federal retirement issues in our representation of federal employees. One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees filing for disability retirement are typically either covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).
The following questions identify a few of the initial considerations that you should examine when determining whether or not to pursue OPM disability retirement. If you are seriously considering filing for disability retirement, there are many considerations (certainly more then just five) to discuss with an attorney knowledgeable in this area of law.
The following five tips are only meant to get you thinking through some of the issues and concerns as you to consider or begin filing for OPM disability retirement:
1. How serious are the federal employee’s medical issues and are they linked to the federal employee’s position description duties?
When making a disability retirement decision, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which you are able to carry out your job duties. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.
For instance, an application of a federal law enforcement officer with a continuing serious heart condition would likely be given serious consideration if her medical reports and letters adequately document her inability to usefully and efficiently carry out her position description duties. In contrast, a federal employee with a back injury and whose position involves mostly administrative duties, who does not have appropriate medical evidence to show the continuing seriousness of his illness and inability to perform his job duties, could potentially have difficulty succeeding in the disability retirement application process.
2. How long is the medical disability realistically expected to last?
The duration of a serious medical disability is very important as well. OPM generally requires that a medical disability be expected to last at least one year in duration. When considering whether to file for disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.
3. Can a federal employee survive on a reduced annuity?
If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.
4. Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?
Often times a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition compatible or workable. This can often be the best solution. As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.”
5. Do your medical professionals believe that you should not continue in your current position?
This is an important consideration when filing for disability retirement. We find that physicians will usually be open with their patients about whether or not it is a good idea to keep working in their current federal employment position. We have identified at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical providers. First and foremost, your health should be of primary importance and continuing in a job that hinders or impedes your recovery is not good for you. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM. OPM will require physicians’ statements about your medical issues, and these physician statements can either make or break your potential outcome in the disability retirement application process.
Contact Us
When considering OPM disability retirement, it is important for you to obtain the advice and representation of legal counsel. You can contact our law firm through www.berrylegal.com, or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter.
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).
Eligibility
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).
Application Deadline
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.
Conclusion
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.
By Kimberly H. Berry, Esq., www.berrylegal.com
Our law firm handles many different types of federal retirement issues in our representation of federal employees. One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).
Federal employees should consider the following questions before they pursue OPM disability retirement:
How serious are the federal employee’s medical issues and are they linked to the federal employee’s position description duties?
When making a disability retirement decision, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.
How long is the medical disability realistically expected to last?
OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.
Can a federal employee survive on a reduced annuity?
If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you obtain benefit estimates from your human resources representative and consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.
Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?
Oftentimes a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition workable. This can often be the best solution, even if it is only a short-term solution. As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.”
Do your medical professionals believe that you should not continue in your current position?
This is an important consideration when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position. There are at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical provider(s). First, your health should be of primary importance and a consideration when determining whether continuing in a job hinders or impedes your recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM. OPM will require a physician’s statement about your medical issues, and the physician’s statement can either make or break the outcome of your disability retirement application.
Contact Us
When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. You can contact our law firm through www.berrylegal.com or by telephone at 703-668-0070, to schedule a consultation to discuss your individual federal employment retirement matter.
By Kimberly H. Berry, www.berrylegal.com
There are a number of circumstances that may cause the U.S. Office of Personnel Management (OPM) to end a federal employee’s disability retirement annuity. It is important, as a disability annuitant to be aware of them.
Most Common Reasons for OPM to Terminate Disability Retirement Annuity
The 3 most common reasons why OPM would rescind federal disability retirement benefits include:
1. Restoration to Earning Capacity: Until a federal disability retiree reaches the age of 60, he or she will typically be given a survey by OPM about the disability retiree’s annual income in the previous year. OPM may consider a disability retiree restored to earning capacity if the individual’s earnings from wages and/or self-employment in any calendar year while a disability annuitant reaches or exceeds 80 percent of the current rate of basic pay of the position the individual occupied immediately prior to retirement. If the disability retiree’s income reached the 80 percent earnings limit in any such calendar year, OPM will usually write (although sometimes belatedly) and inform the disability retiree that his or her disability annuity will terminate.
2. OPM Deems an Individual Recovered: OPM may contact a disability retiree and ask the retiree to provide a current medical report from a physician regarding the status of the medical condition that was the basis for disability retirement. A disability retiree can also be asked by OPM about his or her current employment status and other relevant activities. If this information shows a recovery, then the disability retirement annuity may cease. If a disability retiree does not respond to the request by OPM, his or her disability annuity payments may also be suspended.
3. Re-employment in the Federal Government: If a disability retirement annuitant is re-employed in the federal sector, his or her disability retirement annuity amount may change or terminate.
What Happens if OPM Suspends of Terminates Disability Retirement for an Annuitant?
If OPM suspends or terminates an individual’s disability retirement annuity, the disability retiree can contest OPM’s determination and/or move to have his or her disability annuity restored depending on the situation. For example, if a disability retiree is restored to his or her earning capacity but then later drops below the 80% threshold, the disability retirement annuity can be restored. Other examples include situations involving medically recovered individuals who experience later recurrences of the disability. Each individual situation is different, so it is important to consult with an attorney on individual cases.
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We represent former and current federal employee in retirement matters. If you need assistance with a federal retirement, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.