Chances.Of Getting.A Job In.Puerto Rico.After.Working In.The Us Federal Disability Retirement Under FERS & CSRS – A Second (And Sometimes Third) Bite at the Apple

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Federal Disability Retirement Under FERS & CSRS – A Second (And Sometimes Third) Bite at the Apple

In filing a claim for Federal Disability Retirement benefits under the Federal Employees Retirement Systems (FERS) or Civil Service Retirement System (CSRS), there are certain time-constraints: (1) You must file within one year of being separated from Federal Service, and (2) Your medical condition must last for a minimum of 12 months. This does not mean that you must wait for twelve months after your medical condition arises and prevents you from performing one or more of the essential elements of one’s job; rather, it merely means that the prognosis of your medical condition is such that it is expected to last for at least 12 months. Thus, a person who is diagnosed with multi-level disc degeneration, or suffers from plantar fasciitis, or Chronic Pain syndrome, failed back syndrome, Chronic Fatigue Syndrome, Fibromyalgia, or psychiatric disabilities of Major Depression, Anxiety, panic attacks, etc., or a multitude of other kinds of medical conditions not listed herein, need not wait for 12 or more months before filing for Federal Disability Retirement benefits under FERS or CSRS. Rather, the medical condition must be expected to last for a minimum of twelve months.

Now, within those time constraints, the question is often asked as to whether a Federal or Postal worker can file for disability retirement benefits more than once. In other words, what if a Federal or Postal worker tries once – and gets a denial from the Office of Personnel Management. Can you try again? The answer is – as with most legal questions – both yes and no.

Remember, first, that there are many stages to win a Federal Disability Retirement claim: you have the First, or Initial Stage of the application; if it is denied, you can Request for Reconsideration (the “Second Stage”); if denied again, you can file an appeal to the Merit Systems Protection Board (an “MSPB Appeal”); if the Administrative Judge denies your claim at the MSPB, you can file a Petition for Full Review to the Full Board of the MSPB; and if the Full Board denies your claim you can file a further appeal to the United States Court of Appeals for the Federal Circuit. Thus, there are many “bites at the apple”.

Secondly, however, within those many “bites at the apple”, there are some restrictions. Take the following scenario: A Federal or Postal employee files a Disability Retirement Application in January, 2008. It is denied in May, 2008. A Request for Reconsideration is filed, and it is again denied in August, 2008. He files an Appeal to the Merit Systems Protection Board, and the Administrative Judge denies his case in an opinion dated December, 2008. The Applicant does not pursue any further appeals, but lets the MSPB opinion on the matter stand. Question: Can the same individual file a new application with the Office of Personnel Management in January, 2009, assuming that he has not, in the meantime, been separated from Federal Service for more than one year?

The answer: One must be careful. In the arena of law, there is a legal principle known as res judicata — which, in fundamental terms, simply means that an issue which has been previously decided by the court cannot be re-litigated. In the example given above, if an Applicant files a new claim for the same time-period of disability, then there is a likelihood that the Office of Personnel Management will bring up the legal principle of res judicata, and attempt to prevent the applicant from being granted his disability retirement benefits. However, one can get around the defense of res judicata if you can show two things: First, that the time period in question is different from the previous time-period, and second, that the medical condition worsened since the original time-period. This makes sense, if you stop and think about it: For, if the principle of res judicata is meant to stop people from re-litigating the same issue over and over again, you must show not only that the second application was for a different time-period, but further, that the medical condition was somehow “different” (worse) than what was shown during the first time around.

And, indeed, this is precisely what the Merit Systems Protection Board decided in the case of Luzi v. Office of Personnel Management, 106 M.S.P.R. 160 (2007), where the Merit Systems Protection Board found that a disability retirement appeal following a denial of an appellant’s second application for disability retirement benefits was not barred by res judicata arising from a prior Board decision, where the second application was based on a different time period than was addressed in the original appeal and was based on evidence that could not have been raised in the prior appeal. Thus, if you file a Federal Disability Retirement application, and take the case all the way through the MSPB Hearing Stage, you need to be cautioned that your ability to file a subsequent application may be restricted.

Now, while the case of Luzi allows for a “second bite at the apple”, it obviously imposes some onerous restrictions, and such restrictions further bring up other issues. For example: Might it not be a wise move to think about re-filing a new, second application after a denial at the Reconsideration Stage but before an appeal to the MSPB? (Answer: In some cases, depending upon the facts of the case, the answer is, “Yes”). If you drop the first case at either the Initial Application stage or the Reconsideration Stage, does the principle of res judicata still apply? (Answer: No, but OPM will still have your file from the first case to refer back to, so it would be wise to approach the second filing in a different manner). If you get denied at both the Initial Stage and the Reconsideration Stage, but before filing an appeal to the Merit Systems Protection Board, you are removed from Federal Service for your Medical Inability to perform your job – what should you do? Drop it and Refile? File the MSPB Appeal? (Answer: There are too many variables to answer such a question here, and each individual case must be decided based upon the unique set of circumstances) If you take a case to the MSPB and get a denial from the Administrative Judge, what will be needed to file a second time? (Any subsequent application will have to be for a different time-period than the first application, and any medical evidence must show that the medical condition worsened in the subsequent time-period, in contrast to the first time-period – see Luzi, herein).

Filing for Federal Disability Retirement under FERS or CSRS is a complex process, and each stage of the process needs to be carefully evaluated – not only for a given particular stage, but for setting up the next stage, and the next one after that. To think that you will “win” at any given stage of the process without giving thought to a subsequent stage, is to ignore one’s future, and that is indeed a foolish way to proceed.

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