By Peter Casciano, Esq.
(301) 244-4523
pcasciano@a-f.net
Potential clients sometimes call with questions about whether FERS disability retirement applications can be filed for an employee who is deceased.
The Federal Circuit has squarely declined to require OPM to process a disability retirement application filed by the administratrix of a deceased federal employee’s estate. The court has found that the right to file an application for retirement benefits is personal to the employee alone and that the employee’s death ends the possible filing period. See Oshiver v. OPM, 896 F.2d 540 (Fed.Cir.1990).
Davis v. Office of Personnel Management, 938 F.2d 1283 (Fed. Cir. 1991) is an instructive and important case because the facts reveal that the widow of the deceased federal employee filed two claims after he passed away. First, Ms. Davis filed an application for disability retirement as the administratrix of Mr. Davis’ estate. Second, Ms. Davis filed a claim for a survivor annuity as the surviving spouse of a federal employee.
Unfortunately for Ms. Davis, she lost on both claims that she filed. Regarding Ms. Davis’ claim for a survivor annuity, she was unable to prevail because Mr. Davis had already been separated from federal service; therefore, she could not receive a survivor annuity as the spouse of an employee because Mr. Davis was no longer an employee. Separately, one may be entitled to survivor benefits if their deceased spouse had already been approved for federal disability retirement. The facts did not favor the claimant here because Mr. Davis passed after he was separated but before he even filed for disability retirement.
Specifically, regarding Ms. Davis’ claim for disability benefits as administratrix of the estate, the court followed Oshiver, and found specifically that the statute requires the claim to be filed prior to the death of the claimant. Interestingly, the language of the Davis case appears to hold open the possibility of successful claim where the claim was filed prior to death, but approved after the claimant passes away. In summary, the Davis court found that a federal employee’s right to file a disability claim is “personal” and is extinguished upon death.
Not covered in the Davis or Oshiver cases are the potential thorny issues that arise when claimants pass away at other, different stages of the federal disability retirement process. It is important to point out that disability retirement applications can take roughly eight months before a decision is issued by OPM. Also, even once a claim is approved, cases are typically in the interim pay status phase for about six months before moving into final pay status. This lengthy timeline is critical because the employee benefits one had as an employee (health, life, dental, long term care, etc.) are typically only reinstated upon entry into final pay status.
Please contact our Maryland law firm if you face unfortunate circumstances similar to those described here. When your loved one passed will determine what benefits may be available. Possible benefits to consider, depending on the facts of your case, are: survivor benefits for employees, survivor benefits for retired annuitants, life insurance benefits, or retroactive disability benefits for the deceased person’s estate.
If you have questions, please contact me for a free disability benefits consultation in Maryland.
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