By Kimberly H. Berry, Esq., www.retirementlaw.com
One of the more usual types of federal employee retirement matters that our firm handles involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees thinking about filing for disability retirement should consider the following issues as they debate whether or not to proceed with an application for disability retirement.
1. How Serious are the Federal Employee’s Medical Disabilities and are They Linked to Duties in Their Position Description?
When making a federal employee disability retirement decision OPM evaluates a federal employee’s continued ability to work with their medical condition in the context of the duties described in their position description. OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which a federal employee can carry out their job duties. Basically, the issue is whether or not the medical issue or disability prohibits a federal employee from performing their current duties. This is distinguished from being too disabled to work any position.
If the medical disability is not considered serious enough, or not fully supported by medical documentation and evidence, then OPM may deny the disability retirement application. However, there is a lot that a federal retirement attorney can do to increase the chances of submitting a successful application.
2. How Long is the Medical Disability Expected to Last?
The duration of a medical disability is very important when OPM makes a disability retirement decision. OPM generally requires that a medical disability be expected to last at least 1 year in duration. When considering whether to file for disability retirement, it is important for a federal employee to consider the expected length of the individual’s medical disability. Disabilities with shorter durations can be problematic for federal employees in the disability retirement process and could result in the denial of the application.
3. Does the Federal Employee’s Case Fall Under the Bruner Presumption?
It is quite often the case that a federal employee may be facing removal or potential removal related to their disability. If so, that can provide strong support for approval of a disability retirement application by OPM. This is often referred to as the Bruner presumption, after the case of Bruner v. OPM. Essentially, the Bruner case stands for the proposition that if a federal agency removes a federal employee for the medical inability to perform their duties than the Agency must disprove an employee’s entitlement.
4. Can the Federal Employee Survive on a Reduced Annuity?
If a federal employee is considering filing for OPM disability retirement, it is important to understand that this type of retirement can provide a federal employee with a lower monthly retirement annuity in comparison to full retirement at full years of service and age. Therefore, we recommend that a federal employee consults with a financial advisor about the impact of a potentially reduced annuity before filing for disability retirement. The very good news is that an individual approved for disability retirement can generally work again in the private sector (or for state or other local governments) (not in other federal employment positions) and supplement their income (usually up to 80% of their prior salary) without losing their disability retirement income.
5. Are There Reasonable Accommodations that can be Made to Allow the Federal Employee to Continue to Work?
Sometimes a federal agency will work with an employee to provide them with a reasonable accommodation (RA) (i.e., change in duties, assignments, hours, telework or other adjustments) that can make the employee’s current position and medical condition workable and thereby avoid the disability retirement process. This, however, has its limitations.
As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate your disabling medical condition in their present position. The federal agency must also certify that it has considered a federal employee “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.” Federal agencies typically do not have an issue with such certifications and generally assist federal employees who are seeking disciplinary retirement.
6. Does the Federal Employee have Medical Support for Disability Retirement?
For federal employees, proper medical documentation and evidence is the most important consideration when filing for disability retirement. We also find that physicians will usually help their patients in the disability retirement process. When OPM reviews disability retirement applications, they rely heavily on a federal employee’s medical evidence. As a result, physicians and their medical opinions are crucial in the disability retirement application process with OPM.
OPM will require physicians’ statements about a federal employee’s medical issues, and these physician statements can either make or break the potential success in the disability retirement application process. It is important for a physician to understand a federal employee’s position description and how their disabilities interfere with their duties. It is also not that uncommon for a federal employee to be told by their physician that they should consider disability retirement.
7. Does the Federal Employee Have Enough Time in Service to be Eligible for Disability Retirement?
Generally, most federal employees fall under FERS, which only requires 18 months of creditable federal service before one is eligible for disability retirement. For those in the CSRS system, then 5 years of federal service is required prior to eligibility. Most individuals fall under FERS and generally have the ability to file for OPM disability retirement.
8. Does the Federal Employee Have Time to File for Disability Retirement?
Federal employees must file for disability retirement within 1 year of separation from federal employment. This is critical. There are some very rare exceptions, but OPM must have a federal employee’s application in hand within that 1-year period or there is a substantial risk of denial on that basis alone.
If you are in need of assistance in the federal employee disability retirement process please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.