Legal Insider: OPM disability retirement for federal employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry, Esq.

We represent federal employees in OPM disability retirement matters. Disability retirement for federal employees is one of the most common forms of retirement cases that we handle before federal agencies, the Merit Systems Protection Board (MSPB) and the Office of Personnel Management (OPM).

Federal employees filing for OPM disability retirement are covered by either the Federal Employees Retirement System or the Civil Service Retirement System. When considering OPM disability retirement there are a number of questions that a federal employee should consider as they contemplate whether to file for federal disability retirement. These considerations can include the following:

1. How serious are the federal employee’s medical issues (and are they linked to the federal employee’s position description duties)?

When making a disability retirement decision, a federal employee should keep in mind that OPM evaluates an individual’s continued ability to work with their medical condition in the context of the duties described in their position description (PD). If the medical disability is not deemed serious enough, or not fully supported by medical documentation or other evidence, and is not sufficiently linked to their inability to “usefully and efficiently” carry out their PD duties, then OPM may deny the disability retirement application.

2. How long is the medical disability realistically expected to last?

OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for OPM disability retirement, it is important for a federal employee to evaluate the expected duration of their medical disability. Disabilities with known shorter duration could be problematic in the application process.

3. 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 usually provides an individual with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that federal employees obtain a benefits estimate from their human resources representative and consult with a financial advisor about the impact of a potentially reduced annuity prior to filing for disability retirement. It is important to evaluate one’s ability to support themselves on a reduced annuity before filing for OPM disability retirement.

4. Can changes to a federal employee’s position be made to allow the employee to continue to work?

It can be the case that a federal agency will work with a federal employee to provide them with a reasonable accommodation (i.e. change in hours, duties, telework or other possible accommodations) which can make a federal employee’s current position and medical condition workable. This may alleviate the need to file for OPM disability retirement. As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate a federal employee’s disabling medical condition in their present position. The federal agency must also certify that it has considered them “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.” Usually, this does not present a major hurdle to obtaining OPM disability retirement.

5. Does the federal employee’s medical professionals support the disability retirement application?

Medical support can be an important factor when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position. Typically, most physicians are supportive of such applications.

There are at least two good reasons for a federal employee to discuss their possible filing for OPM disability retirement with their treating medical providers in advance. First, a federal employee’s health should be of primary importance and consideration when determining whether continuing in a particular position hinders or impedes their medical recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the OPM disability retirement application process.

OPM will require a physician’s statement about a federal employee’s medical condition, and the physician’s statement can often make or break the outcome of an OPM disability retirement application. Sometimes, a federal employee can seek an outside medical expert opinion to support their application for disability retirement, but it is very important to also include a longtime treating physician or other medical professional where possible.

When considering whether or not to file for OPM disability retirement, it is important to obtain the advice and representation of legal counsel. The OPM link for disability retirement is located here. 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 disability retirement matter.