I also have over twenty-five years experience representing Kentucky clients in other areas of law and they include, but aren't limited to:
- Family Law Matters
- Child Custody Issues
- Wills and Estates
- Personal Injury Claims
- Business Incorporation
What is Catch-62?
Certain civilian, federal government employees with prior military service may make a pre-retirement deposit to buy their post-1956 military service into their federal retirement annuity. Paying a percentage of military earnings to their employing agency before they retire earns them an increased annuity upon retirement.
If you qualify, but do not make such a deposit, OPM reduces your retirement annuity once eligible for Social Security at age 62.
Do I have a right to appeal?
Typically, the answer is yes. You can request OPM to reconsider a decision to reduce your annuity due to failure to make a prior deposit and if still denied, appeal your Catch-62 claim to the Merit Systems Protection Board (MSPB).
What is required to have a successful outcome with MSPB?
If your employing agency commits an "administrative error" and as a result you did not make the deposit, the MSPB will order the OPM to accept a late deposit and revise the reduced annuity to its proper amount.
What constitutes "administrative error"?
The Agency acted in a way that served to:
- Misrepresent the amount of the deposit
- Provide an inaccurate amount
- Confuse the employee as to the amount of the deposit
- Provide confusing information as the effect of any failure to make the deposit
For the most complete answer to the issue of what constitutes "administrative error", the Hendricks case is the most helpful. Hendricks v. OPM, MSPB Docket No. At-0831-07-0995-I-1 at 2008 MSPB 133 (June 20, 2008).
For example, in many instances, the questions these agencies must answer to comply with this decision are not always accomplished easily or they are given to incomplete answers. A prospective retiree must know their post 1956 earnings, plus interest. They also must realize, in dollar terms, the consequences if they do not opt into the program. Also, they must understand when and how to make a deposit. Many agencies arent informing employees that they can make an interest free payment in the first three years of their federal civil service, or that amounts can be automatically withheld from their paycheck.
For example, a CSRS employee deposits 7% of their post-1956 earnings, plus interest, and a FERS employee only 3% percent (plus interest). However, there is a specific manner in which to request this information and many agencies aren't proving helpful in this regard.
While providing incomplete answers may not rise to the standard of "error" in every instance, each situation needs to be looked at closely, given the lack of regard some agencies exercise in communicating to their employees.
How often does the retiree win a Catch 62 appeal at the MSPB?
Some informal polling indicates that at least one-third of cases appealed can be expected to prevail. Of course, anecdotal data doesn't shed light on the merits of your particular case, but it does provide some hope for those wondering if this is a pointless exercise. It is not. This appeals process if fair and it works out for many. Depending on the facts in your case, it is worth looking into.
Can I recover my attorney fees if I win my case?
Yes. If you prevail before the MSPB on your Catch-62 appeal, you are entitled to recover your attorney fees from OPM.
When should I contact an attorney?
If you believe an administrative error has occurred and you are not yet 62, contact our office. Also, preserve all evidence related to your claim, in the event your annuity is ultimately affected.
If you have received notice from OPM that it will reduce your annuity due to Catch-62 provisions, contact us to see if this might be a situation you can successfully contest and how best to proceed.
Henderson v. Shinseki - Veterans Disability Case
On December 6, 2010, the Supreme Court of the United States heard oral arguments in a Veterans Disability case, Henderson v. Shinseki.
Mr. Henderson filed a claim for benefits with a VA Regional Office (VARO), seeking in-home care for his disability. The VARO denied the claim. Henderson appealed to the Board of Veterans' Appeals (BVA) and then to the U.S. Court of Appeals for Veterans' Claims (CAVC). However, the CAVC denied the claim, because it was pursued fifteen (15) days after the 120-day deadline to file an appeal. The case has made its way to the U.S. Supreme Court.
The Veteran argued that the doctrine of "equitable tolling" should apply. This allows the court to waive the statute of limitations in situations where the court determines that equity, or fairness, dictates. Most courts exercise these types of exceptions sparingly. However, the decision could have significant impact if Hendricks prevails. Veterans are often unable to assert claims for reasons beyond their control. (Ironically, in many instances, due to the very illnesses or injuries that are the basis for the claims themselves.) Often, the VA lulls veterans into inaction.
In any event, The Law Office of Michael Boylan is ready to represent US Veterans who have been denied benefits in their VA Disability claims for compensation due to injuries or diseases incurred during their military service.
Federal Disability Retirement FAQs
Should I keep working or apply for disability retirement?
This is a common question by postal workers and Federal employees contemplating FERS/CSRS federal disability retirement. Typically, this is an issue to be discussed with the doctors helping you manage your current condition. Make them aware of your position description and ask their thoughts.
If your doctor is advising you against working or considers your employment to be a questionable activity, then it is time to contact us. A lawyer experienced in these types of claims can discuss your options with regard to federal disability retirement, Social Security disability or workers compensation/wage loss compensation, if your injury took place at work). In most situations, it is possible to make estimates as to your future benefits.
What if the doctor informs me that I can work, but with some restrictions?
It would be a good idea to discuss your options with an attorney. We have listed below some of the various protections, rights and remedies afforded:
Family and Medical Leave Act - allows you to take up to 12 weeks of unpaid leave to treat a medical condition or recover from medical treatment.
Americans with Disabilities Act - note that this was recently amended with important changes as of January 1, 2009. The overall goal of this statute is to make the U.S. Government the "Model Employer" for employing disabled workers and to remove or limit the barriers disabled workers confront.
Leave Donation Programs/Leave Banks - signing up for these programs can help you get leave for emergency medical treatment.
Union contracts - might provide some additional benefits.
Our office or another qualified, federal disability retirement attorney can advise you as to how to best proceed.
Am I eligible for Disability Retirement?
You must meet the following conditions to be eligible for disability retirement:
- Completed at least 18 months of Federal civilian service which is creditable under the Federal Employees Retirement System (FERS).
- While employed in a position subject to the retirement system, you have become disabled and because of disease or injury, become unable to perfomr useful and efficient service in your current position. The disability must be expected to last at least one year.
- Your agency must certify that it is unable to accommodate your condition and vacant positions in the same agency have been considered.
- You must apply before your separation from service or within one year thereafter.
- You must apply for social security disability benefits.
Bottom line: You must be unable to perform the essential functions of your current government job due to a disease, condition or impairment that is expected to last at least one year.
Do I have to apply for Social Security Disability if I apply for Disability Retirement?
It is not required to be approved for Social Security Disability, but you do have to apply. If you receive Social Security Disability, your Disability Retirement benefits may be reduced by the amount you receive from Social Security.
When can I apply for benefits through OPM?
Up to one year after you have left Federal Civil Service, or otherwise whenever you are eligible.
OPM has denied my application - what next?
If OPM denies your application, they will send you a letter stating the reasons. It is important that you formally request reconsideration (by OPM) so that you do not lose your right to an appeal at some future date. When you file your MSPB appeal, if you do not have the denied reconsideration letter, this will greatly complicate matters and make your claim much more difficult to successfully pursue.
Why have I been approved for Social Security disability, but denied Disability retirement?
The standards for the claims are different, plus, the lack of sufficient medical evidence are the main reasons.
Social Security disability applicants need to prove they are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. A FERS disability retirement applicant needs to prove that he or she is unable, because of disease or injury, to render useful and efficient service in his current position and does not qualify for accommodation or reassignment.
So, the Social Security requirement is that you are unable to perform any gainful activity, and the FERS requirement is only that you are unable to perform useful and efficient service in just one position.
How do I remedy this problem?
With a FERS disability claim, make sure your doctor fully explains how the condition you have prevents you from performing your duties. Also, remember to supplement the record with a reasoned explanation from your doctor at the stage of any reconsideration.
Finally, if appealing to the MSPB, call on your doctor to testify, Insufficient medical evidence is one of the main reasons we run into problems here.
What will be the status of my health care benefits?
Here is a list of insurance benefits available to Federal retirees:
Health Benefits: The Federal Employees Health Benefits (FEHB) Program covers over 9 million Federal employees, retirees, former employees, family members, and former spouses. For more information about FEHB, please visit the Insurance Programs homepage.
Life Insurance is available through the Federal Employees' Group Life Insurance (FEGLI) Program. For more information about the FEGLI program visit the Insurance Programs homepage.
Dental and Vision Insurance: The Federal Employees Dental and Vision Insurance Program (FEDVIP) is available to eligible Federal and Postal employees, retirees, and their eligible family members on an enrollee-pay-all basis. This Program allows dental and vision insurance to be purchased on a group basis which means competitive premiums and no pre-existing condition limitations. Premiums for enrolled Federal and Postal employees are withheld from salary on a pre-tax basis.
Long Term Care Insurance: The Federal Long Term Care Insurance Program provides an important benefit that can help pay long term care expenses you may incur in the future. Federal and Postal employees and annuitants, active and retired members of the uniformed services, and qualified relatives can apply for this insurance. Certain medical conditions, or combinations of conditions, will prevent some people from being approved for coverage. For more information about the FLTCIP, please visit the Program homepage.
Flexible Spending Accounts: Flexible Spending Accounts enable eligible employees to pay for certain medical and dependent care expenses with pre-tax dollars. Retirees are not eligible for flexible spending accounts. For more information about the Federal Fexible Spending Account Program (FSAFEDS) for employees, please visit the Program homepage.
What steps are required to prove eligibility?
To be eligible for a disability retirement annuity under FERS or CSRS you must be able to demonstrate:
- Eligibility - You completed at least 18 months of creditable service in a position subject to FERS, or five years under the CSRS
- Disability - Because of a medical condition, resulting in a service deficiency in performance, conduct, or attendance or future useful and efficient service.
- Continuity - The disabling medical condition is expected to continue for at least 1 year from the date the disability retirement application is filed and accommodating the condition is unreasonable.
- Reassignment - You must not have declined a reasonable offer of reassignment.
- Appeal - If your initial request and request for reconsideration were timely, and were denied by OPM, you may have an appeal right to the Merit Systems Protection Board.
The second criteria is the most difficult to prove. If OPM denies your application and your request for reconsideration, the MSPB can consider the following in making the determination required by the second criteria:
- Objective - Clinical findings, diagnoses and medical opinions,
- Subjective - Evidence of pain and disability, and
- Other evidence - The applicant's overall condition and what influence it has on their ability to perform the duties assigned.
Failure to submit this medical evidence may not account for the sole reason the MSPB to uphold OPM's denial, but it will be an important factor. Note that subjective evidence of disability or pain must be accompanied by competent medical evidence. For that reason, I recommend a well-prepared medical analysis of your condition and its effect on your ability to perform the job duties of your position.
Disability Retirement Claims
The disability retirement system has been developed to provide a benefit for those serving the federal government. You have every right to carefully review and defend a negative decision made regarding your application.
I represent federal employees intending to file for disability retirement, or wishing to appeal a decision by OPM denying your claim.
Eligibility for Disability Retirement
- A disability or disease which is expected to last at least one year and prevents you from performing useful or efficient service in your current position
- Completion of 5 years federal civilian service (under CSRS) or 18 months under FERS
- The agency must certify that it has considered you for other positions for which you are qualified for reassignment
Note that the Office of Personnel Management must receive your application within one year of your date of separation.
Duration and Computation of Disability Annuities
Length of service, age and salary at the time of disability are all factors that help compute disability compensation. Payments are calculated to begin at the time your annuity has been approved by the OPM. Although you may work another job, there are some restrictions and your retirement can be revoked if you are deemed recovered.
Contact me if you need assistance or have questions with any aspect of your disability retirement claim.