What to Do if Your FERS Disability Retirement is Denied

Attorney Justin Schnitzer

Written by: Attorney Justin Schnitzer


Experts In This Article

No one’s health is perfect. Accidents, illness, and deteriorating conditions can change your ability to work. When this happens for federal employees, the Federal Employment Retirement System (FERS) can provide FERS Disability Retirement. This solution benefits federal employees when it is confirmed that they have lost the ability to complete the tasks of their role and reasonable accommodation is insufficient to overcome the limitations of the disability.

However, approval of FERS disability retirement is difficult to attain. Denial is the standard operating procedure, and the burden of proof lies on the employee to provide sufficient medical details, complete the complex preliminary requirements, and file the correct paperwork for approval.

If your FERS disability retirement is denied, however, you have options. One is to hire a skilled FERS disability lawyer as your partner and advocate to help you complete your appeal and fight for your rightful disability benefits.

How can a Federal Employment Lawyer Help Me Appeal My FERS Disability Retirement Denial?

Being denied your first application for FERS disability retirement can be disheartening, but you have the right to appeal. It is quite rare that federal employees see FERS disability retirement immediately approved after the initial application. This is because denial is the default process when more information is needed, when certain requirements are not fully met, or if there is an error in the paperwork. It may be discouraging, but a FERS disability retirement denial should not be seen as the end.

With the help of an experienced FERS disability retirement lawyer, you can navigate the maze of requirements needed to see your disability request approved more effectively. As soon as your initial application is denied, you can begin the appeal process, including hiring a lawyer to assist you in determining why your application was denied and how to overcome those hurdles.

Get in touch with an experienced federal employment disability lawyer by contacting The Law Office of Justin Schnitzer at (202) 964-4878 or contact us through our online form to get started on your FERS disability retirement appeal.

FERS Disability Retirement Denial is Only the Beginning

The most important thing to understand is that having your FERS disability retirement denied, even after painstakingly preparing your application and trying to meet all qualifying factors, is normal. It’s standard operating procedure.

When you submit an application, you will be assigned a Medical Specialist, who is not a doctor or medical professional, to review your case. They are in charge of denying or approving your application. If they want more information, whether it’s more test results or a clearer view of how your disability affects your work experience, they will issue a denial rather than asking for clarification or further evidence. That’s just how the system works.

This means that a denial is a suggestion to review your application and submit an appeal with a stronger case. 

What to do if you are denied FERS disability retirement?

If your FERS Disability Retirement is denied, you can request reconsideration from the Office of Personnel Management (OPM) within 30 days. If it gets denied again, you have the right to appeal to the Merit Systems Protection Board (MSPB) within 30 days of the reconsideration decision. It is advisable to consult with an attorney experienced in federal employee retirement to guide you through the process.

Determining Why Your Application Was Denied

The first step is to determine why your application was denied. This reason should be given, though it may not be clearly stated in the denial letter. This is the first thing your federal employment lawyer can do for you.

Likely, the denial is a request for more information in one category or another, and you will need to present your appeal with a stronger case and more complete documentation of your disability as a medical condition and how it has impacted your ability to work.

The issue might also be that you must prove that certain preliminary steps are complete.

Qualifications for FERS Disability Retirement

No matter what condition you may suffer from, there are a few important qualifications to receive FERS disability retirement approval. These qualifications apply to all medical conditions, including injuries and physical disabilities, and must be met for FERS disability retirement to be considered or approved.

The Condition Must Prevent Completion of Job Duties

First, the disability condition must prevent you from completing your job duties, even with reasonable accommodation. In this situation, your disability condition must be proven to drive you to distraction or reduce your capacity so that you cannot sufficiently perform your work duties. PTSD, post-traumatic stress disorder, for example, may make you sensitive to loud noises so you can no longer work in a semi-industrial environment. Or your anxiety may have increased to the point where you develop a speech impediment (stuttering) and cannot answer the phones, even while working at home.

The Condition Must Last More than a Year

You must also have an approved doctor’s diagnosis that your condition will last in its current state for longer than 12 months. Otherwise, an employee may be granted a leave of absence instead of FERS disability retirement to remedy the situation.

The Condition Must Manifest or Worsen During Federal Employment

You will also need some degree of proof that your condition either began or got worse during your tenure as a federal employee. Conditions that develop during federal employment will be strengthened if there is a clear reason, such as a traumatizing event or an incredibly heavy workload. Conditions that get worse must first prove that the employee was initially able to perform their work duties but that their condition has since made it impossible.

It is unnecessary that your federal work causes the condition or that the cause stems from your workplace. Unlike worker’s compensation in the private sector, FERS disability retirement will accommodate all disabilities developed during federal employment, regardless of origin. For example, if you were in a car accident outside of work, both physical and mental damage from that experience may qualify you for FERS Disability Retirement.

The Condition Cannot be Accommodated.

Lastly, your employer must exhaust every attempt to provide reasonable accommodation. This means that light work, working from home, a transfer to a new position, or an alternate assignment must be proven not to provide the level or type of accommodation you need. Placement in a quiet office, purchase of equipment or software, or remote work must have all been tried and/or proposed and/or deemed insufficient.

Only then will FERS disability retirement be on the table for approval.

It is important to note that it is OK to try and then reject some accommodations, while attempting others may alter or even revoke your eligibility for FDR for a period of time. Alternate assignment, for example, is to be avoided.

How Much Can You Receive From FERS Disability Retirement?

If your FERS disability retirement is approved, your benefit will be based on your ‘High 3’ average. The High 3 is the three consecutive years your salary is the highest, averaged together. You will receive 60% of your High 3 in the first year of retirement. You will receive up to 40% of your ‘High 3’ years afterward until age 62. At this age, the FERS disability retirement benefit will transform into a normal retirement benefit, as if you had continued working as a federal employee for that time.

However, if you also receive Social Security Disability payments, 100% of your Social Security will be deducted from your FERS retirement benefit in the first year. In the following years, 60% of what you are paid from social security will be deducted from your payments.

If you receive OPM for lost wages, you cannot receive them at the same time as FERS disability retirement, but you can put your lost wages benefit on hold until FDR is complete.

You can also continue seeking work in the private sector while receiving FERS disability retirement, as long as your income is no more than 80% of your original salary in your federal employee role.

Preparing Your FERS Disability Retirement Appeal

Once you know why your initial FERS disability retirement denial was issued and clearly understand the requirements, you and your federal employment attorney can build a stronger case to submit with your appeal.

Gathering Further Evidence

Start by gathering more extensive evidence of your disability. Ask your doctor which tests they can run so you can attach the results to prove the medical fact of your disability. Visit specialists and get their reports on how your disability affects your life.

You can also collect statements from your employer or coworkers, including personal testaments that you experience pain, brain fog, or mobility limitations (whatever is true to your condition) during the workday, which impacts your ability to work.

Creating a complete, well-organized, and thoroughly documented report of your disability should leave little room for the request for further information in your appeal.

Completing and Documenting Preliminary Steps

Next, make sure you have completed and fully documented all preliminary steps. For FERS disability retirement to be approved, it must be proven that you and your employer have fully explored accommodation options and that these will not work for you. You must also avoid accepting a reduced position, as this can impact the value of your disability retirement benefits when approved.

Be sure to create a documented trail regarding the discussions, attempts to accommodate, and why no solution was found.

Appealing Your FERS Disability Retirement Denial with Legal Representation

The final step is to submit your appeal with the help of your FERS disability attorney. Your lawyer will not only help you build a strong appeal case, but they will also advocate for you and push to have your case properly reviewed and approved.

You can contact a skilled federal employment lawyer with experience in FERS disability retirement denial cases through The Law Office of Justin Schnitzer. Our firm is dedicated to providing personalized, high-quality legal representation to federal employees nationwide. Contact us today or call (202) 964-4878 to schedule your consultation and learn more about how we can help you achieve your legal goals.

Attorney Justin Schnitzer

Meet the Author:
Attorney Justin Schnitzer

Justin Schnitzer is the managing partner of The Law Office of Justin Schnitzer, and represents individual federal employees and unions in various aspects of federal employment law. His practice is primarily dedicated to federal EEOC and MSPB matters, responses to proposed disciplinary actions and investigations into potential misconduct.