By Kimberly H. Berry, www.berrylegal.com
We represent federal employees in Office of Personnel Management (OPM) disability retirement filings and appeals. Federal employees, in both the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) are eligible for disability retirement should the need arise. In order to be eligible for this type of retirement, CSRS employees generally must have completed five (5) years of federal service and FERS employees must have completed 18 months of creditable service.
Basis of Disability Retirement for Federal Employees
Disability retirement before the Office of Personnel Management (OPM) can be a detailed process and one which must be handled carefully. Entitlement to disability retirement benefits is based on a disability that is suffered by the federal employee which prevents them from performing the duties of their particular position in the federal government. It is not necessary that the disability be related to an on-the-job injury. It is also not necessary that the federal employee by disabled from all types of work. In fact, it is common that a federal employee can retirement through OPM disability retirement and also take a different (non-federal employee) position.
The OPM system distinguishes federal disability retirement programs from the on-duty requirements of injuries for purposes of federal workers compensation through the Department of Labor, Office of Workers’ Compensation Programs (OWCP). It is important to have an OPM disability retirement attorney advise and assist federal employees in the applications and/or appeals process before OPM.
One-Year Filing Requirement
An important component of 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. We advise our clients to file for disability early due to the very strict filing deadlines. If disability retirement is ultimately approved, an individual is still generally permitted to maintain other, non-federal employment, subject to an 80% earnings limitation which is helpful to many annuitants.
The OPM Disability Retirement Procedure
When the decision to file for OPM disability retirement is made by the federal employee and they are still employed, the first step is to work with an attorney to confirm that the federal agency cannot accommodate the individual in another position. A key component of the disability retirement application process is to obtain the assistance of the physician(s) and other medical professionals who will be providing the key documentation needed for the OPM approval process. This is usually not a major issue. It is usually the case that for individuals with disabilities that their physician may have already recommended they leave their position on disability.
Through the process, it is 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 issue in our experience. Furthermore, there is a requirement that the disability involved must be expected to last for at least one (1) year. The disability retirement process can be initiated while a federal employee is still employed by the federal government or after they have been separated (up to one year following separation). We also advise the federal employee, in conjunction with his or her OPM disability retirement application, to apply for social security benefits as is required for processing. We also assist federal employees in completing necessary documentation in connection with the application, such as the SF-3112A, Applicant’s Statement of Disability, Standard Form 3112C, Physician’s Statement and Standard Form 3112D, Agency Certification of Reassignment and Accommodation Efforts.
We have attached a sample Sample OPM Disability Retirement approval letter.
Working with the Federal Agency to Support OPM Disability Retirement
Often it may be possible to work with the federal agency that an individual is employed by in the disability process. When that option is available, we often work with Agency HR and/or their legal representatives on behalf of a federal employee to take the most appropriate steps to obtain support for a federal employee’s disability retirement. There is the possibility that federal agencies can take actions which actually help support an OPM disability retirement application.
A federal agency may also attempt to remove a federal employee on the basis of his or her disability. Removal, solely on the basis of disability, can be a positive development in certain cases, as the law often presumes (called the Bruner Presumption) that if a federal employee is disabled and removed for that disability that he or she should be entitled to disability retirement. This sometimes will make it easier to prevail in the federal employee’s disability retirement application with OPM.
Working with Federal Employee Physicians
Our OPM disability retirement lawyers assist federal employees in the preparation of their OPM disability retirement applications. We work with the federal employee’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. Typically, 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, the individual 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 physician(s) 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. The more information provided by the federal employee, the better the chances of approval.
OPM Reconsideration Process / MSPB Appeals
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 very quickly and with as much additional documentation in support of the disability retirement application as possible. Typically, there is only 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 represent federal employees in appeals of final adverse OPM decisions with respect to disability retirement before the Merit Systems Protection Board (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.
OPM Termination of Disability Retirement
While somewhat rare, OPM can terminate disability retirement under specific certain conditions which rarely occur. The reasons for termination for disability retirement include the following: (1) the individual has medically recovered from their disability; (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.
It is very important for federal employees considering disability retirement to obtain legal advice and representation early in the process and prior to filing an application for disability retirement. We represent and advise federal employees nationwide and abroad before their individual federal agencies, OPM and the MSPB in regard to their OPM 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. If you need assistance with a federal retirement or employment issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like/follow us on Facebook and Twitter.