| In filing a claim for Federal Disability Retirement | | | | benefits. However, one can get around the |
| benefits under the Federal Employees Retirement | | | | defense of res judicata if you can show two |
| Systems (FERS) or Civil Service Retirement | | | | things: First, that the time period in question is |
| System (CSRS), there are certain | | | | different from the previous time-period, and |
| time-constraints: (1) You must file within one year | | | | second, that the medical condition worsened since |
| of being separated from Federal Service, and (2) | | | | the original time-period. This makes sense, if you |
| Your medical condition must last for a minimum of | | | | stop and think about it: For, if the principle of res |
| 12 months. This does not mean that you must | | | | judicata is meant to stop people from re-litigating |
| wait for twelve months after your medical | | | | the same issue over and over again, you must |
| condition arises and prevents you from | | | | show not only that the second application was for |
| performing one or more of the essential elements | | | | a different time-period, but further, that the |
| of one's job; rather, it merely means that the | | | | medical condition was somehow "different" |
| prognosis of your medical condition is such that it | | | | (worse) than what was shown during the first |
| is expected to last for at least 12 months. Thus, | | | | time around. |
| a person who is diagnosed with multi-level disc | | | | And, indeed, this is precisely what the Merit |
| degeneration, or suffers from plantar fasciitis, or | | | | Systems Protection Board decided in the case of |
| Chronic Pain syndrome, failed back syndrome, | | | | Luzi v. Office of Personnel Management, 106 |
| Chronic Fatigue Syndrome, Fibromyalgia, or | | | | M.S.P.R. 160 (2007), where the Merit Systems |
| psychiatric disabilities of Major Depression, | | | | Protection Board found that a disability retirement |
| Anxiety, panic attacks, etc., or a multitude of | | | | appeal following a denial of an appellant's second |
| other kinds of medical conditions not listed herein, | | | | application for disability retirement benefits was |
| need not wait for 12 or more months before filing | | | | not barred by res judicata arising from a prior |
| for Federal Disability Retirement benefits under | | | | Board decision, where the second application was |
| FERS or CSRS. Rather, the medical condition must | | | | based on a different time period than was |
| be expected to last for a minimum of twelve | | | | addressed in the original appeal and was based on |
| months. | | | | evidence that could not have been raised in the |
| Now, within those time constraints, the question is | | | | prior appeal. Thus, if you file a Federal Disability |
| often asked as to whether a Federal or Postal | | | | Retirement application, and take the case all the |
| worker can file for disability retirement benefits | | | | way through the MSPB Hearing Stage, you need |
| more than once. In other words, what if a Federal | | | | to be cautioned that your ability to file a |
| or Postal worker tries once - and gets a denial | | | | subsequent application may be restricted. |
| from the Office of Personnel Management. Can | | | | Now, while the case of Luzi allows for a "second |
| you try again? The answer is - as with most legal | | | | bite at the apple", it obviously imposes some |
| questions - both yes and no. | | | | onerous restrictions, and such restrictions further |
| Remember, first, that there are many stages to | | | | bring up other issues. For example: Might it not be |
| win a Federal Disability Retirement claim: you have | | | | a wise move to think about re-filing a new, |
| the First, or Initial Stage of the application; if it is | | | | second application after a denial at the |
| denied, you can Request for Reconsideration (the | | | | Reconsideration Stage but before an appeal to |
| "Second Stage"); if denied again, you can file an | | | | the MSPB? (Answer: In some cases, depending |
| appeal to the Merit Systems Protection Board (an | | | | upon the facts of the case, the answer is, "Yes"). |
| "MSPB Appeal"); if the Administrative Judge denies | | | | If you drop the first case at either the Initial |
| your claim at the MSPB, you can file a Petition for | | | | Application stage or the Reconsideration Stage, |
| Full Review to the Full Board of the MSPB; and if | | | | does the principle of res judicata still apply? |
| the Full Board denies your claim you can file a | | | | (Answer: No, but OPM will still have your file from |
| further appeal to the United States Court of | | | | the first case to refer back to, so it would be |
| Appeals for the Federal Circuit. Thus, there are | | | | wise to approach the second filing in a different |
| many "bites at the apple". | | | | manner). If you get denied at both the Initial |
| Secondly, however, within those many "bites at | | | | Stage and the Reconsideration Stage, but before |
| the apple", there are some restrictions. Take the | | | | filing an appeal to the Merit Systems Protection |
| following scenario: A Federal or Postal employee | | | | Board, you are removed from Federal Service |
| files a Disability Retirement Application in January, | | | | for your Medical Inability to perform your job - |
| 2008. It is denied in May, 2008. A Request for | | | | what should you do? Drop it and Refile? File the |
| Reconsideration is filed, and it is again denied in | | | | MSPB Appeal? (Answer: There are too many |
| August, 2008. He files an Appeal to the Merit | | | | variables to answer such a question here, and |
| Systems Protection Board, and the Administrative | | | | each individual case must be decided based upon |
| Judge denies his case in an opinion dated | | | | the unique set of circumstances) If you take a |
| December, 2008. The Applicant does not pursue | | | | case to the MSPB and get a denial from the |
| any further appeals, but lets the MSPB opinion on | | | | Administrative Judge, what will be needed to file a |
| the matter stand. Question: Can the same | | | | second time? (Any subsequent application will |
| individual file a new application with the Office of | | | | have to be for a different time-period than the |
| Personnel Management in January, 2009, assuming | | | | first application, and any medical evidence must |
| that he has not, in the meantime, been separated | | | | show that the medical condition worsened in the |
| from Federal Service for more than one year? | | | | subsequent time-period, in contrast to the first |
| The answer: One must be careful. In the arena of | | | | time-period - see Luzi, herein). |
| law, there is a legal principle known as res judicata | | | | Filing for Federal Disability Retirement under FERS |
| -- which, in fundamental terms, simply means that | | | | or CSRS is a complex process, and each stage of |
| an issue which has been previously decided by the | | | | the process needs to be carefully evaluated - not |
| court cannot be re-litigated. In the example given | | | | only for a given particular stage, but for setting |
| above, if an Applicant files a new claim for the | | | | up the next stage, and the next one after that. |
| same time-period of disability, then there is a | | | | To think that you will "win" at any given stage of |
| likelihood that the Office of Personnel | | | | the process without giving thought to a |
| Management will bring up the legal principle of res | | | | subsequent stage, is to ignore one's future, and |
| judicata, and attempt to prevent the applicant | | | | that is indeed a foolish way to proceed. |
| from being granted his disability retirement | | | | |