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Living Life on Full Disability

When do time limits for filing for disability retirement begin to run? Can an employee obtain a disability retirement when he has not worked for the government for more than 20 years? A recent court decision addresses the timeliness and notification requirements of an unusual case.

Most federal employees work for 25, 30 or 40 years before retiring. Sometimes a full career can just slip by. Here is a case where it slipped by without the employee going back to work for the government for more than 20 years.

When President Reagan was still in his first term of office, William Johnston worked for the Corps of Engineers. He was injured on the job and awarded worker’s compensation for total disability.

Six years later, in 1989, the Army wrote to him and asked for medical documentation and inquired as to when he would be able to return to work. The letter he received at that time advised him that a decision will normally be made one year after an employee’s injury as to whether he will be able to return to work and that an employee can apply for disability retirement if a decision is made that is unfavorable to the employee. If the application for disability retirement is approved, Johnston was advised, he can choose the best benefit–either worker’s compensation or disability retirement.

According to Johnston, he never applied for disability retirement, never made any election between disability retirement and worker’s compensation but continued to receive disability benefits under the worker’s compensation program.

In 1991, Johnston’s employment was terminated. Johnston, however, says he was never told his employment was terminated and never knew about his options until April 2003.

In April 2003, OPM sent Johnston a letter stating that he was eligible to apply for deferred retirement annuity as he had reached age 62 (although he was 66 in 2003). In May 2003, he filed for disability retirement.

Johnston was told by OPM his application for disability retirement was not approved as he had missed the deadline for filing which, according to OPM, was one year from the date his employment was terminated in 1991.

At this point, Johnston apparently decided to take action and filed an appeal with the Merit Systems Protection Board. The MSPB upheld the OPM ruling that his application for disability retirement was untimely. He then went to the Federal Circuit Court of Appeals.

In court, he argued he should not be penalized for the agency’s failure to notify him of his appeal rights or the change in his employment status back in 1991.

The court was more sympathetic to Johnston than the MSPB. It concluded that OPM has the burden of proving it had sent notice of a filing deadline and that failure to prove this may excuse an employee’s failure to meet filing deadlines. So, concluded the court, "The agency cannot invoke a deadline that was passed before the notice was given."

OPM argued that the 1989 letter to Johnston met the statutory requirement of notification. The court quickly brushed aside that argument by observing that the 1989 letter did not conclude he could not return to work; did not notify him his employment was being terminated; and did not explain how to apply for disability retirement.

The decision does not mean that the long-ago federal employee gets to retire on a pension though. Instead, the court remanded the case back to the Merit Systems Protection Board for a determination on "whether or when" OPM sent Johnston the required notice. And, if OPM does not meet its burden of proof on this issue, the deadline for filing for disability retirement would begin from the April 2003 letter sent by OPM to Johnston.

William F. Johnston v. OPM, 04-3260, US Court of Appeals for the Federal Circuit (June 28, 2005)

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47