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.
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.
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.
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.
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.
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.
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.
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.
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.
Contact Us
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.
Representing Current and Federal Employees in OPM Disability Reconsideration Appeals for Over 25 Years
Our federal retirement lawyers represent current and former federal employees nationwide seeking reconsideration following a disability retirement denial by the Office of Personnel Management (OPM). We represent federal employees in their retirement matters before their federal agencies and OPM. It is common for many current and former federal employees seek our legal assistance when OPM has issued a denial in their disability retirement application. In such cases, the federal employee or retiree is provided with an opportunity to request reconsideration regarding OPM’s initial decision. Most disability retirement applicants do not realize that they may have a better chance of receiving disability retirement on reconsideration than in the initial application.
Understanding the OPM Reconsideration Process
Reconsideration is simply OPM’s method of reviewing its initial denial to ensure that the applicable laws, rules and regulations have been properly applied to a federal employee or retiree’s application for disability retirement. However, in order for OPM to begin its review, the federal employee or retiree must initiate a request for reconsideration. The OPM reconsideration process will then afford the federal employee or retiree an early opportunity to address any deficiencies and legal errors in OPM’s initial decision. It is often the case that OPM will spend more time and resources reviewing the reconsideration application than the initial retirement package.
Disability Retirement Application by Current or Former Federal Employee
For the OPM disability retirement process to start, the first step is to apply. A current federal employee or former federal employee (within a year of separation) may seek disability retirement from OPM. Once the application and supporting documentation is submitted to OPM, the decision process will begin.
Initial Denial from OPM
Before reconsideration can start, OPM must first deny the individual’s request for disability retirement. OPM’s denial is referred to as an initial decision. This usually comes in the form of a 5-8 page denial letter explaining why the disability retirement application was denied. Much of the initial decision will contain boilerplate language denying the request for disability retirement. There will, however, be a section dedicated to discussing the basis of the OPM denial. The letter will also discuss how their determinations are made, your rights for reconsideration and it will also include a CSA Number which you will have to reference should you decide to appeal. The initial decision will provide the various rights on reconsideration afforded federal employees and applicants.
Review OPM’s Basis of the Denial
As a general principle, it is important to carefully review the basis for the OPM denial prior to seeking reconsideration. The denial could be based on errors on the part of OPM or it might be based on the fact that the individual did not provide enough medical proof for disability retirement. It is fairly common for the basis of denial to be related to the clarity of the medical proof and medical statements provided to OPM. OPM has published guidance regarding some of the problems which occur in the processing of disability retirement applications regarding documentation.
Requesting Reconsideration from OPM
Generally, a federal employee has 30 days within which to request reconsideration from the date of an adverse OPM decision. The deadline is critical and does not involve significant work to initiate. The reconsideration request must be received within 30 days (not just placed in the mail). As a result, it is critical to ensure that the request to OPM is timely. Otherwise, the request for reconsideration can be denied by OPM as untimely. OPM’s Request for Reconsideration of Disability form is fairly straightforward and easy to complete. It is usually important to check the last box in which the federal employee requests an extra 30 days to provide additional information about an individual’s qualification for disability retirement. It is important to include the CSA number attached to the denial on the form. Once the OPM Request for Reconsideration form is received, assuming that the form is completed correctly, additional information will need to be gathered in support of overturning OPM’s initial decision within the 30-day window.
Filing the Additional Information Needed on Reconsideration
After the OPM disability retirement reconsideration process has begun, the next step will be to add additional documentation to prove that the OPM decision was incorrect. There is a right to request a copy of the claim file which will normally include the information that the individual submitted to OPM in making the first decision in the case. Requesting this information can be helpful to see whether or not OPM reviewed any other information in issuing the OPM denial. In other instances, the claim file is not as useful.
In seeking reconsideration, the more information provided to OPM, the better. Because you are seeking disability retirement, the additional documentation is likely to be medical. Some of the more common reconsideration responses include:
(1) Complete histories of the medical or disabling condition at issue;
(2) Findings from previous medical examinations;
(3) Other records of medical treatment; and
(4) Other evidence supporting the disability, such as personal statements and letters of support from family and friends.
Once received, the reconsideration file will be sent to a new OPM specialist on review who will review the new materials, along with the existing file, and issue a determination either approving the disability retirement application or issuing a new denial. Reconsideration specialists tend to give substantial weight to new medical documentation so this can often be a key part of the reconsideration process. We find that the reconsideration stage yields a more meaningful review of the disability retirement claims. We have also found that OPM reconsideration specialists are typically quicker in issuing a reconsideration decision than specialists during the initial application review.
Additional Appeals
If OPM denies reconsideration, other rights, such as pursuing the case before the Merit Systems Protection Board, are available. The reconsideration decision will typically provide full instructions on how to appeal the decision to the appropriate field office of the MSPB. Usually, an individual will have 30 days in which to file an MSPB appeal regarding their retirement denial with the MSPB. Again, timing is important and an individual can lose their rights if the appeal is not timely filed. Once submitted, an administrative judge will be assigned to oversee the hearing in the case. In an MSPB retirement appeal, having counsel is critical to potential success. An MSPB appeal is similar to the civil action process, with attorneys on both sides and a judge. The same procedures that apply in regular court apply in MSPB appeals. This link provides more information on MSPB retirement appeals.
Contact Us
When seeking reconsideration from OPM in a disability retirement application, it is important to obtain legal representation. 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.
