Get employee rights in writing

A recent case involving the denial of disability benefits underscores the importance of receiving written instructions when it comes to your rights as a government employee.

The case involved Charles F. Johnson, who was removed from his position as an accounting technician at the Agriculture Department on May 29, 1995. More than a year later, Johnson filed an application for disability retirement. The law states that a disability retirement application can only be granted if the application is filed before the employee is separated from service or within one year thereafter. This time requirement can only be waived by the Office of Personnel Management if the employee is mentally incompetent at the time of separation from federal service or within one year thereafter. If these conditions are met, the application must be filed within one year from the date when the employee is restored to mental competency or when a fiduciary for the still-incompetent employee is appointed.

Johnson admitted that his application was not filed on time. He did not assert that the time limitation should be waived because of mental incompetence. Instead, Johnson said that at the time of his removal, he had been advised by someone in his agency that he need not apply for a disability retirement so long as he was receiving workers' compensation. Although that piece of advice sounded plausible, it was incorrect. Because of the misinformation Johnson received, he delayed filing his disability retirement application.

OPM denied Johnson's application, stating that the only grounds for waiver of the statutory time limit for filing is mental incompetence. In other words, "We would like to help you, but the law won't allow us." Johnson then appealed that decision to the Merit Systems Protection Board. Because Johnson did not argue that he qualified for a waiver on the grounds of mental incompetence, the MSPB had no choice but to affirm OPM's decision.

This is one of those rare cases where I am compelled to side with the MSPB. Johnson never had a chance. Being misinformed has never been an acceptable defense in cases of this sort, no matter what the circumstances are.

Johnson then asked the U.S. Court of Appeals for the Federal Circuit to review his case. Johnson again argued that his untimely filing at OPM was caused by misinformation that he received from his employing agency at the time of his removal. The bottom line: The court denied Johnson's appeal even though he was the victim of incorrect information received from a government employee.

When the law is clear on when exceptions to the law can be granted— and it certainly is in this case— the Supreme Court has held that other exceptions cannot be read into the statute, even to promote equity. That may seem unfair: Many of us have received incorrect information from our agencies, and it seems plausible that if Johnson were receiving workers' compensation, he shouldn't have had to file for disability benefits until his workers' compensation benefits were exhausted. The Supreme Court has also ruled that the government cannot be prevented from denying benefits on the ground that the failure to receive the benefits resulted from misinformation given to the person seeking the benefits.

The moral of the story: Do not believe anything you are told unless it is put in writing and signed by a responsible official. Where your rights are concerned, get them in writing!

(Citation: U.S. Court of Appeals for the Federal Circuit, 98-3110. Charles F. Johnson v. Office of Personnel Management. Decided June 5, 1998.)

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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