MSPB

Federal disability retirement is a benefit accorded to all federal employees under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS).  Certain minimum requirement must be met in order for an federal employee to be eligible under CSRS or FERS.

• First, for CSRS employees, he or she must have a minimum of five years of service.  For FERS employees, he or she must have a minimum of 18 months of service.
• Second, the employee must have become disabled while employed in a position subject to the retirement system, such that the disability results in deficient performance, conduct, or attendance that is incompatible with the employee continuing to perform useful and efficient service in his or her job.
• Third, a physician must certify that the disability is expected to last a year or more.
• Fourth, the employee’s agency must be unable to accommodate the disability in the employee’s current job or in an existing vacant position at the same grade or pay and in the same commuting area.

To be eligible for disability retirement, an employee does not have to be disabled for any employment at all.  Rather, eligibility requires only that the employee is unable to perform the job to which he or she was assigned, or a job at the same pay in the same commuting area.

Once an employee has met these minimum requirements, an application for disability retirement should be filed (1) with the employing federal agency before separation or (2) with the Office of Personnel Management (“OPM”) within one year of the date of separation from employment.  Additionally, under FERS, an employee must simultaneously apply for social security disability benefits.  OPM will dismiss the FERS disability retirement application should the employee withdraw his or her application for social security disability benefits for any reason.

Should OPM approve the employees application for disability retirement, OPM may require the employee to undergo periodic medical evaluations, the cost of which are the employee’s responsibility, in order to continue receiving benefits.

If OPM denies the application at the initial stage, the employee may seek reconsideration of the initial decision.  If reconsideration does not lead to the application being approved, the employee may file an appeal with the Merit Systems Protection Board (MSPB), which will evaluate and decide the case de novo (without deference to OPM’s decision).

The attorneys of Kator, Parks & Weiser have assisted numerous federal employees with all aspects of the disability retirement process, from compiling the initial submission to MSPB appeals.  To learn more about whether disability retirement is right for you, contact Kator, Parks & Weiser today.

On February 10, 2012, Michael Kator argued before the Court of Appeals for the Federal Circuit in a case involving threats to due process protections for federal government employees.  In the case of Norris v. Securities and Exchange Commission, Mr. Kator asked the court to reverse a termination decision, and protect worker due process rights.  The agency’s decision to fire Mr. Norris was based in part on evidence not provided to him.  Also, an arbitrator reviewing the case had refused to consider evidence regarding changes in Mr. Norris’s medical condition, and how the improvement in his condition may have impacted his ability to perform his job.  Circuit Judge Timothy Dyk described the questions presented by the case as a “difficult area” of the law.  The court took the case under advisement.

To listen to a recording of the oral argument, please click here.