The general rule for filing a Federal Disability Retirement application under the Federal Employees Retirement System (FERS) or Civil Service Retirement System (CSRS), is that a Federal or Postal employee must file the disability retirement application within one (1) year of being “separated from Federal Service.” This is statutorily established in 5 U.S.C. 8337(b), where it specifically states that a claim may be received and reviewed by the Office of Personnel Management “only if the application is filed with the Office before the employee or Member is separated from the service or within 1 year thereafter,” and in 5 C.F.R. (“Code of Federal Regulations”) Section 844.201, “an application for disability retirement is timely only if it is filed with the employing agency before the employee or Member separates from service, or with the former employing agency or OPM within 1 year thereafter.” This is the “statutory rule” – as explicitly stated in “the law”.
As with all laws, however, there can be exceptions – not only as stated within the statute itself, but further, as modified by a Judge in a Federal Court. This latter “modification” and “interpretation” of a statute is important to know, precisely because such “organic interpretations” of the statute are just as much “law” as the statute itself. The statute itself allows for an exception to the “1-year rule” (that a Federal or Postal employee must file a Federal Disability Retirement application under FERS or CSRS while in the employment of the Federal Government, or within one (1) year of being separated from Federal Service) – that exception being, that the Office of Personnel Management may waive the 1-year statute of limitations “if the employee or Member is mentally incompetent on the date of separation or within 1 year thereafter, in which case the individual or his or her representative must file the application with the former employing agency or OPM within 1 year after the date the individual regains competency or a court appoints a fiduciary, whichever is earlier.” In simple and practical terms, this means that if a person, within the time needed to file for Federal Disability Retirement benefits, is committed to a psychiatric institution, then the 1-year rule does not start until the person regains his or her competency.
There is another exception to the 1-year rule, however, and it is this exception which is important to know. There are many times when a Federal or Postal employee is never informed of his or her separation from the Federal Government or the Postal Service. Such individuals often follow a similar pattern or paradigm: a Federal or Postal employee becomes injured or otherwise is medically unable to perform his or her job. He is found to be eligible for Federal Worker’s Compensation benefits (Department of Labor, OWCP benefits under FECA), and remains in the Federal Service while receiving OWCP benefits. A couple of years pass. Perhaps more than a couple of years pass. The Agency, realizing that the Federal or Postal employee will not be returning, “separates” the individual from the service of the Federal Government or the Postal Service.
The problem occurs, however – and this problem occurs way too often – when the Federal or Postal employee is never informed of the separation. Why does this occur? Mostly, because those on the OWCP rolls, after a time, get forgotten. Concurrently, because the Federal agency or the Postal Service needs to fill the “job slot” with a working individual, they simply initiate a Standard Form 50 and separate the individual from Federal Service.
Indeed, this is precisely what happened in the case of Johnston v. OPM, 413 F.3d 1339 (U.S. Court of Appeals for the Federal Circuit, 2005), in which the Court granted a further exception to the 1-year rule, declaring that the “one-year time period set in 5 U.S.C. Section 8337(b) arises with the agency’s notification to the employee that he has been terminated for medical reasons.” Furthermore, the Court in Johnston cited 5 C.F.R. Section 831.1205(b)(1), in which it states that when an agency “issues a decision to remove an employee…but the removal is based on reasons apparently caused by a medical condition, the agency must advise the employee in writing of his or her possible eligibility for disability retirement.” Emphasis is added to the word “apparently”, because a Federal Agency (and the Postal Service) will often fail to explicitly state that a person is being removed for a medical condition, even though all of the facts and circumstances surrounding a Federal or Postal employee’s removal clearly and irrefutably establish such a basis.
Where does all of this leave us? I receive numerous telephone calls by individuals who have been on the rolls of the Office of Worker’s Compensation, who never filed for Federal Disability Retirement benefits under FERS or CSRS. Further, they were never informed of being separated from Federal Service. Such former Federal or Postal employees begin to inquire about filing for Federal Disability Retirement benefits because he or she is getting indications that OWCP benefits will soon be terminated. Such imminent action upon OWCP benefits will often prompt the former Federal or Postal employee to make some inquiries – and such inquiries often result in the discovery that he or she was separated from Federal Service some years before.
Is it too late to file for Federal Disability Retirement benefits under FERS or CSRS? It all depends upon the particular and unique facts and circumstances of each case. Whether a viable argument can be made in any particular case that a waiver of the “1-year rule” should be allowed, depends upon such unique facts and circumstances. Of course, it is the better alternative to not have to make such an argument, and to instead timely file for Federal Disability Retirement benefits within 1 year of being separated from Federal Service, or while still with the agency. For all Federal and Postal employees, a cautious word to the wise: stay on top of your own case; make sure and meet the deadlines; file for your benefits under FERS & CSRS in a timely manner. If, however, you believe that you were never informed of being separated from Federal Service, but you are entitled to Federal Disability Retirement benefits, you should look into it. It may not be too late.
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