When filing a claim for federal disability retirement benefits under the Federal Employee Retirement Systems (FERS) or the Civil Service Retirement System (CSRS), there are certain time limitations: (1) you must file within one year of have been separated from federal service, and (2) your medical condition must last a minimum of 12 months. This does not mean that you must wait twelve months after your medical condition arises and prevents you from performing one or more of the essential elements of your job; rather, it simply means that the prognosis of your medical condition is such that it is expected to last at least 12 months. Thus, a person who is diagnosed with multilevel 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 types of medical conditions not listed in this document, you do not need to wait 12 months or more before applying for federal disability retirement benefits under FERS or CSRS. Rather, the medical condition should be expected to last for a minimum of twelve months.

Now, within those time constraints, the question is often asked whether a federal or postal worker can apply 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 winning a Federal Disability Retirement claim: you have the First Stage or Initial Stage of the application; if denied, you may Request Reconsideration (the “Second Stage”); if denied again, you may file an appeal with the Merit Systems Protection Board (an “MSPB Appeal”); If the ALJ denies your claim with the MSPB, you may file a Petition for Full Review with the full MSPB Board; and if the full Board rejects your claim, you may file a new appeal with the United States Court of Appeals for the Federal Circuit. Therefore, there are many “bites in the apple”.

Second, however, within those many “bites in the apple,” there are some restrictions. Consider the following scenario: A federal or postal employee files a Request for Disability Retirement in January 2008. It is denied in May 2008. A Request for Reconsideration is filed and denied again in August 2008. Files an Appeal to the Merit Systems Protection Board, and the Administrative Judge denies his case in a December 2008 ruling. The Applicant files no further appeals, but upholds the MSPB’s ruling on the matter. Question: Can the same person file a new application with the Office of Personnel Management in January 2009, assuming that he has not been separated from the Federal Service for more than a year in the meantime?

The answer: you have to be careful. In the field of law, there is a legal principle known as res judicata, which, in fundamental terms, simply means that an issue that has already been decided by the court cannot be relitigated. In the example given above, if a Claimant files a new claim for the same period of disability, there is a possibility that the Office of Personnel Management will raise the legal principle of res judicata and try to prevent the claimant from being awarded their disability benefits. disability retirement. However, one can get around the res judicata defense if they 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 to think about it: because, if the principle of res judicata is meant to prevent people from re-litigating the same issue over and over again, you need to show not only that the second request was for one case different time period, but also, that the medical condition was somehow “different” (worse) from what was shown during the first time.

And indeed, this is precisely what the Merit Systems Protection Board decided in the case of Luzi v. Office of Personnel Management, 106 MSPR 160 (2007), where the Merit Systems Protection Board determined that a disability retirement appeal following a denial of an appellant’s second application for disability retirement benefits was not barred by res judicata stemming from an earlier Board decision, where the second request was based on a different time period than that addressed in the original appeal and was based on evidence that could not have been raised in the earlier appeal. Therefore, if you apply for federal disability retirement and take your case to the MSPB hearing stage, you should be aware that your ability to apply later may be restricted.

Now, while Luzi’s case allows for a “second bite of the apple,” it obviously imposes some onerous restrictions, and those restrictions raise other problems. For example: Wouldn’t it be wise to consider refiling a second new application after a reconsideration denial but before an appeal to the MSPB? (Answer: In some cases, depending on the facts of the case, the answer is “Yes.”) If you drop the first case at the initial application stage or at the reconsideration stage, does the res judicata principle still apply? (Answer: No, but OPM will still have your file from the first case to refer to, so it would be prudent to approach the second filing in a different way.) If you are denied at both the initial stage and the reconsideration stage, but before you file an appeal with the Merit Systems Protection Board, you are removed from the Federal Service due to your medical inability to perform your job, what should you do? do? Drop it and re-archive? File MSPB Appeal? (Answer: there are too many variables to answer that question here, and each individual case must be decided based on the unique set of circumstances) If you bring a case to the MSPB and get a denial from the ALJ, what will it take to file a second time? ? (Any subsequent requests will have to be for a different time period than the first request, and any medical evidence must show that the medical condition worsened in the subsequent time period, as opposed to the first time period – see Luzi, here ).

Applying for federal disability retirement under FERS or CSRS is a complex process, and each stage of the process must be carefully evaluated, not just for a particular stage, but to establish the next stage and the next. To think that you will “win” at any given stage of the process without thinking about a later stage, is to ignore your own future, and that is indeed a foolish way to proceed.