§ 8337. Disability retirement

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(a)An employee who completes 5 years of civilian service and has become disabled shall be retired on the employee’s own application or on application by the employee’s agency. Any employee shall be considered to be disabled only if the employee is found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee’s position and is not qualified for reassignment, under procedures prescribed by the Office, to a vacant position which is in the agency at the same grade or level and in which the employee would be able to render useful and efficient service. For the purpose of the preceding sentence, an employee of the United States Postal Service shall be considered not qualified for a reassignment described in that sentence if the reassignment is to a position in a different craft or is inconsistent with the terms of a collective bargaining agreement covering the employee. A judge of the United States Court of Appeals for the Armed Forces who completes 5 years of civilian service and who is found by the Office to be disabled for useful and efficient service as a judge of such court or who is removed for mental or physical disability under section 942(c) of title 10 shall be retired on the judge’s own application or upon such removal. A Member who completes 5 years of Member service and is found by the Office to be disabled for useful and efficient service as a Member because of disease or injury shall be retired on the Member’s own application. An annuity authorized by this section is computed under section 8339(g) of this title, unless the employee or Member is eligible for a higher annuity computed under section 8339(a) through (e), (n), (q), (r), or (s).

(b)A claim may be allowed under this section only if the application is filed with the Office before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by the Office for an employee or Member who at the date of separation from service or within 1 year thereafter is mentally incompetent, if the application is filed with the Office within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.

(c)An annuitant receiving disability retirement annuity from the Fund shall be examined under the direction of the Office—

(1)at the end of 1 year from the date of the disability retirement; and

(2)annually thereafter until he becomes 60 years of age;

unless his disability is permanent in character. If the annuitant fails to submit to examination as required by this section, payment of the annuity shall be suspended until continuance of the disability is satisfactorily established.

(d)If an annuitant receiving disability retirement annuity from the Fund, before becoming 60 years of age, recovers from his disability, payment of the annuity terminates on reemployment by the Government or 1 year after the date of the medical examination showing the recovery, whichever is earlier. If an annuitant receiving disability retirement annuity from the Fund, before becoming 60 years of age, is restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement, payment of the annuity terminates on reemployment by the Government or 180 days after the end of the calendar year in which earning capacity is so restored, whichever is earlier. Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.

(e)If an annuitant whose annuity is terminated under subsection

(d)of this section is not reemployed in a position in which he is subject to this subchapter, he is deemed, except for service credit, to have been involuntarily separated from the service for the purpose of this subchapter as of the date of termination of the disability annuity, and after that termination is entitled to annuity under the applicable provisions of this subchapter. If an annuitant whose annuity is heretofore or hereafter terminated because of an earning capacity provision of this subchapter or an earlier statute—

(1)is not reemployed in a position in which he is subject to this subchapter; and

(2)has not recovered from the disability for which he was retired;

his annuity shall be restored at the same rate effective the first of the year following any calendar year in which his income from wages or self-employment or both is less than 80 percent of the current rate of pay of the position occupied immediately before retirement. If an annuitant whose annuity is heretofore or hereafter terminated because of a medical finding that he has recovered from disability is not reemployed in a position in which he is subject to this subchapter, his annuity shall be restored at the same rate effective from the date of medical examination showing a recurrence of the disability.

The second and third sentences of this subsection do not apply to an individual who has become 62 years of age and is receiving or is eligible to receive annuity under the first sentence of this subsection.

(1)An individual is not entitled to receive—

(A)an annuity under this subchapter, and

(B)compensation for injury to, or disability of, such individual under subchapter I of chapter 81, other than compensation payable under section 8107,

covering the same period of time.

(2)An individual is not entitled to receive an annuity under this subchapter and a concurrent benefit under subchapter I of chapter 81 on account of the death of the same person.

(3)Paragraphs

(1)and

(2)do not bar the right of a claimant to the greater benefit conferred by either this subchapter or subchapter I of chapter 81.

(g)If an individual is entitled to an annuity under this subchapter, and the individual receives a lump-sum payment for compensation under section 8135 based on the disability or death of the same person, so much of the compensation as has been paid for a period extended beyond the date payment of the annuity commences, as determined by the Department of Labor, shall be refunded to that Department for credit to the Employees’ Compensation Fund. Before the individual may receive the annuity, the individual shall—

(1)refund to the Department of Labor the amount representing the commuted compensation payments for the extended period; or

(2)authorize the deduction of the amount from the annuity.

Deductions from the annuity may be made from accrued or accruing payments. The amounts deducted and withheld from the annuity shall be transmitted to the Department of Labor for reimbursement to the Employees’ Compensation Fund. When the Department of Labor finds that the financial circumstances of an individual entitled to an annuity under this subchapter warrant deferred refunding, deductions from the annuity may be prorated against and paid from accruing payments in such manner as the Department determines appropriate.

(1)As used in this subsection, the term “technician” means an individual employed under section 709(a) of title 32 or section 10216 of title 10 who, as a condition of the employment, is required under section 709(b) of title 32 or section 10216 of title 10, respectively, to be a member of the Selected Reserve.

(A)Except as provided in subparagraph

(B)of this paragraph, an individual shall be retired under this section if the individual—

(i)is separated from employment as a technician under section 709(e)(1) of title 32 or section 10216 of title 10 by reason of a disability that disqualifies the individual from membership in the Selected Reserve;

(ii)is not considered to be disabled under the second sentence of subsection

(a)of this section;

(iii)is not appointed to a position in the Government (whether under paragraph

(3)of this subsection or otherwise); and

(iv)has not declined an offer of an appointment to a position in the Government under paragraph

(3)of this subsection.

(B)Payment of any annuity for an individual pursuant to this subsection terminates—

(i)on the date the individual is appointed to a position in the Government (whether pursuant to paragraph

(3)of this subsection or otherwise);

(ii)on the date the individual declines an offer of appointment to a position in the Government under paragraph (3); or

(iii)as provided under subsection (d).

(3)Any individual applying for or receiving any annuity pursuant to this subsection shall, in accordance with regulations prescribed by the Office, be considered by any agency of the Government before any vacant position in the agency is filled if—

(A)the position is located within the commuting area of the individual’s former position;

(B)the individual is qualified to serve in such position, as determined by the head of the agency; and

(C)the position is at the same grade or equivalent level as the position from which the individual was separated under section 709(e)(1) of title 32 or section 10216 of title 10.

(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 572; Pub. L. 90–83, § 1(76), Sept. 11, 1967, 81 Stat. 214; Pub. L. 95–454, title IX, § 906(a)(2), (3), Oct. 13, 1978, 92 Stat. 1224; Pub. L. 96–499, title IV, § 403(a), Dec. 5, 1980, 94 Stat. 2605; Pub. L. 97–253, title III, § 302(a), Sept. 8, 1982, 96 Stat. 792; Pub. L. 98–94, title XII, § 1256(c), Sept. 24, 1983, 97 Stat. 701; Pub. L. 100–238, title I, § 124(a)(1)(A), Jan. 8, 1988, 101 Stat. 1755; Pub. L. 101–189, div. A, title XIII, § 1304(b)(2), Nov. 29, 1989, 103 Stat. 1577;

Pub. L. 101–428, § 2(d)(1), Oct. 15, 1990, 104 Stat. 929; Pub. L. 102–378, § 2(61), Oct. 2, 1992, 106 Stat. 1354; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832; Pub. L. 105–61, title V, § 516(a)(2), Oct. 10, 1997, 111 Stat. 1306; Pub. L. 106–65, div. A, title V, § 522(d), Oct. 5, 1999, 113 Stat. 597; Pub. L. 106–553, § 1(a)(2) [title III, § 308(h)(1)], Dec. 21, 2000, 114 Stat. 2762, 2762A–88.)

In subsection (c), the words “receiving disability retirement annuity from the Fund” are coextensive with and substituted for “retired under this section or under section 6 of the Act of May 29, 1930, as amended”.

In subsection (g), the words “Notwithstanding any provision of law to the contrary” are omitted as unnecessary. The words “Employees’ Compensation Fund” are substituted for “Federal Employees’ Compensation Fund” to conform to the title of that Fund as set forth in section 8147.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report.

1967 Act

This section amends 5 U.S.C. 8337(e) for consistency within the subchapter and to reflect that it is the individual, rather than the position, that is subject to the subchapter.

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