In a previous post, we outlined “5 Steps to Prove Eligibility for FERS Disability Retirement.”
We outlined the 5 basic steps: Eligibility, Disability, Continuity, Reassignment, and Appeal.
This post will discuss Step 5: Appeal.
You’ve shown that you are eligible for disability retirement, your disease/injury is preventing you from providing useful and efficient service, and the Agency is unable to reassign or accommodate you. What next?
Contact your Agency Human Resources or Labor Relations specialist, or contact OPM to get the proper forms to file an application for disability retirement. As you prepare those forms, be sure to include substantial medical documentation that connects the essential functions of your job to your medical condition.
That substantial medical documentation should consist primarily of doctor’s statements, charts, lab results and any other medical evidence which supports your position. Your own statement of your physical, mental or emotional pain and the limitations you experience will be helpful to OPM (and later to the MSPB), but it should be only a small portion of what you submit to OPM.
Your Agency should be able to provide you assistance, including getting you the necessary forms and or statements and other proof needed to file your appeal. Be careful, though – if you are applying for disability retirement in settlement of some performance or conduct action (suspension, demotion or removal), the Agency is not always going to be acting in your best interests.
If you have included sufficient proof as discussed in Steps 1 through 4, then your application will hopefully be approved. If it is, you will be subject to periodic reviews and medical evaluations (until age 60) to determine whether the disease/injury continues to exists or whether you have been restored to your previous earning capacity.
If your application is denied, you should immediately request reconsideration of the denial of disability retirement from OPM.
This is a very important step – if the request for reconsideration is denied, a potential disability retirement appeal to the MSPB could be limited by what is or what is not in this request for reconsideration.
I recommend that you consult with an attorney experienced in such matters prior to submitting your request for reconsideration. Whatever you do, do not miss the deadline to request reconsideration. Send your request for reconsideration via Certified mail, return receipt requested.
If your request for reconsideration is denied, you should receive an opportunity to file a disability retirement appeal with the Merit Systems Protection Board (MSPB). The burden will be on you, in most cases, to persuade the MSPB Administrative Judge that you are entitled to disability retirement benefits. OPM will have to bring forward some evidence demonstrating its decision to deny disability retirement.
If not legally, then practically speaking, the burden is going to be on the employee to show their eligibility for disability retirement.
The MSPB is not bound by disability determinations made by the EEOC, OWCP or the Social Security Administration. These decisions may have some weight, but just because Social Security has found that you are disabled, or the EEOC has found that you are a disabled employee is no guarantee that the MSPB will make the same conclusion. This is because, as discussed earlier, there are several different legal definitions of disability, and no two are the same.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
The Law Office of Eric Pines represents Federal employees under FERS or CSRS in their applications for disability retirement to OPM. If an application for disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of disability retirement applications by OPM.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about disability retirement under FERS or CSRS, or OPM’s denial of your applications for disability retirement benefits under FERS or CSRS, contact an MSPB attorney at the Law Office of Eric Pines to schedule a telephone consultation.