Postal Medical Retirement: Understanding the Basics of a FERS Disability Application

Success is often achieved as a result of multiple factors:  Opportunities presented, recognized and acted upon; knowledge enough to take advantage of; the ability to see what others have failed to appreciate; the effective utilization of knowledge.  Within the universe of knowledge, it is often stated that people who amass enormous wealth are not necessarily “smarter” than your average Joe (for whatever reason, “Joe” has been the commonplace proper name to designate Everyman; but for those who may be offended as to its gender non-neutrality, you may insert, “Josephine”, as well), but for whatever reason, can pinpoint commercial opportunities better than others.  In short, when knowledge is applied for specific means, those who are “successful” are able to extrapolate knowledge relevant to the issue at hand, and discard irrelevant and extraneous material efficiently.

Postal employee back pain

Federal Disability Retirement benefits, under FERS (Rhetorical question:  Are there any Federal or Postal employees under the old system — CSRS — anymore?) has a long history of MSPB decisions of precedence, as well as Federal Circuit Court of Appeals opinions, which have cumulatively modified, altered, clarified and strengthened the benefit for Federal and Postal employees.  Going through the compendium of complex case-law opinions, however, without first understanding the “basics” of its origination based upon statutory authority, can lead one astray by unduly focusing upon those “secondary” arsenal of legal weapons — like VA Disability Ratings; removal for one’s medical inability to perform the job, or even from “excessive absences” but still being able to argue for the Bruner Presumption; the impact of an SSDI approval; and other such corollary legal precedents which can be argued.  Thus, it is always important to begin with the “basics”, then to build one’s foundation on the originally-established  statutory authority.  And so, let us begin with that which is outlined in 5 C.F.R. (Code of Federal Regulations), part 844, where it states in relevant part:

Except as provided in paragraph (c) of this section, an individual must meet the following requirements in order to receive a disability annuity:

(1) The individual must have completed at least 18 months of civilian service that is creditable under FERS, as defined in § 842.304 of this chapter;

Thus, the minimum eligibility requirement mandates 18 months of civilian service.  Applicants should be advised, however, that the 18-month time of service — while meeting the minimum eligibility requirement — will not translate into a “full” disability retirement annuity.  This is because the calculations involved in determining the annuity amount will be based upon the “average of the highest 3-years (36 month)” of consecutive service, and therefore, the annuity will be determined by a divisor of 3, and not by 1.5.  This is important, because the 60% rate for the first year, followed by the 40% rate of annuity in the subsequent years until one reaches the age of 62 (at which point the annuity becomes recalculated based upon the total number of years of one’s service, including the time that one is on disability retirement), will be a lower amount from that of a person who has had at least 36 months of Federal Service.

The statute / regulation then goes on to state:

(2) The individual must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position;

Thus, there is a 4-part criteria, or “test”, in determining eligibility for Federal or Postal Disability Retirement, beyond merely acquiring 18 months of Federal Service.  The picture that needs to be painted for every individual contemplating filing a Federal Disability Retirement application, is this:  There is a wall.  That wall is entitled, “The U.S. Office of Personnel Management”.  On the left side of the wall are people who say things like, “It is difficult”; “I am struggling”; “I am having a difficult time doing my job”.  On the right side of the wall are people who simply say, “I cannot do my job.”  Most people are on the left side of the wall.  How do I, as a Postal Disability Attorney, help lift you from the left side of the wall over to the right side of the wall?  So, the question must be asked to the potential client:  Do you have any deficiencies in performance, conduct or attendance?  If you do not, then OPM will likely argue as follows:  “Your agency says that you are doing a great job.  So what’s the problem?”  If you cannot answer that question, then we will go to the “Fourth” criteria — that of “incompatibility”.  And that goes to the logical next question:  Do you have a doctor who will support your case?  If you do, then you will likely be able to be lifted up from the left side of the wall, to the right side of the wall.

Arthritis in the Postal Service

And the Statute goes on with:

(3) The disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed;

Note that the regulation does NOT state that the medical condition “must have” continued for at least one year, and yet, based upon phone calls and queries made to this author/attorney, there has been some fairly prevalent and persistent confusion about this requirement.  So, a note of clarity for those contemplating preparing an effective Federal/Postal Disability Retirement application:  It is merely an expectation that the medical condition will continue for at least 12 months from the date the application for Federal Disability Retirement is filed, and NOT that the medical condition must have already lasted for 12 months, which is the important point to take away from this.  How does one comply with, and establish facts such that OPM can acceptably ascertain compliance to this section?  Most doctors, after a period of treatment — or, in the case of an independent evaluation by a qualified medical specialist, upon a thorough review of the available treatment records — can provide a prognosis based upon the nature, extent, severity and chronicity of the medical condition, as to the length of expected time of continuing disability.

(4) Accommodation of the disabling medical condition in the position held must be unreasonable; and

Another way to put it is:  The Agency must not be able to reasonably accommodate the medical condition.  Further, a legally-viable accommodation in a Federal Disability Retirement case cannot be temporary or merely resulting from a Supervisor allowing for “light duty” by informally excluding some of the essential duties of a position.  While there is nothing wrong when an Agency/Supervisor allows for temporary light duty, such a change in status — whether formally or informally — does not preclude a Federal or Postal worker from proceeding with a Federal Disability Retirement filing.

(5) The individual must not have declined an offer of reassignment to a vacant position

Generally, an offer of a reassignment must be at the same pay or grade, and within a reasonable commuting area.  Keep in mind, however, that just because an offer for a reassignment is made, if the individual is unable to medically perform such an offered “other”  position, then a declination of such an offer will not necessarily preclude moving forward with a Federal Disability Retirement application. In the end, it is very rare that a Federal Agency (and certainly, for the Postal Service, the term “never” applies in almost every case) can find a suitable reassignment which undermines or precludes moving forward on a Federal Disability Retirement application under FERS.

(b) The employing agency must consider a disability applicant for reassignment to any vacant position. The agency must certify to the Office of Personnel Management (OPM) either that there is no vacant position or that, although it made no offer of reassignment, it considered the individual for a vacant position. If an agency offers a reassignment and the individual declines the offer, the individual may appeal the agency’s determination that the individual is not disabled for the position in question to the Merit Systems Protection Board under 5 U.S.C. 7701.

Again — this is a rare occurrence.  Rare, primarily because of practical reasons:  An individual who has a medical condition impacting upon one’s Federal or Postal position will likely not be able to work in another position at the same pay or grade, precisely because the medical condition itself will likely impact the reassignment job in a similar way.  If a debilitating back condition prevents the Federal employee from performing a cognitive-intensive, sedentary job, reassigning that person to another administrative position is not going to solve the problem.

The above-explication of the statutory “basics” undergirding the Federal Disability Retirement process is meant to provide a rough outline of the statutory basis for eligibility purposes.  As every case in a Federal Disability Retirement application is unique, the specific facts of each case must be evaluated, analyzed and assessed based upon those particular facts, and applied to the nuances inherent both in the statute and regulations, as well as the current case-laws which apply.  Thus, we start with the “basics”; go on to the more complex expansion of case-law precedents; then, after a thorough “vetting”, decide as to whether an individual case is “viable” enough to proceed with preparing, formulating and filing an effective Federal Disability Retirement application under FERS, with the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Attorney

 

Photo Credit: Arthritis image by PeachMoon from Pixabay

U.S. Postal Service injuries: The Durable Body

Have you ever seen those videos depicting mechanized arms repetitively opening and closing a car door in order to test the durability of an automobile’s structural soundness?  Robots and automation have replaced such testing scenarios; for, in the “old days”, you can imagine a “quality assurance specialist” opening and closing, opening and closing the door, the hood, the trunk, etc., to make sure that it doesn’t fall apart — and in the meantime, doing grave physical damage to the inspector’s own anatomy because of repetitive stress upon doing the same job over and over again.

Flat sorting machines at USPS distribution centersThe human body has often been marveled at.  If from a religious viewpoint, it is perfection created in the image of a perfect being.  If from an evolutionary standpoint, it is the result of a lengthy elimination of genetic mishaps through trial-and-error consummated by a process where the survival of the “fittest” wins out.  Yet, every functional anatomy — whether made of human flesh, of mechanical apparatus or a combination of both (what was once referred to as “bionic” limbs) — has its limitations, and whether the human body was meant to undergo repetitive usage necessitated by the requirements of employment is a question to be pondered.

U.S. Postal workers are exposed to a unique hazard — that of repetitive stress injuries.  Such injuries or medical conditions are caused by the human anatomy engaging in repeated movements and motions performed over and over again, whether for employment or in daily living activities.  The effects culminating from such activities are often identified as “repetitive stress injuries”, or sometimes as “cumulative trauma disorders”, “repetitive motion disorders” or “overuse syndromes”.  However one terms it, the resultant consequences encapsulate a wide range of medical conditions and physical injuries which impact muscles, ligaments, tendons, nerves, and the structural integrity of interconnective tissues which make the miracle of the human body work.

U.S. Postal workers are particularly susceptible to such personal injuries, precisely because they must engage in such repetitive motions and movements in the daily course of their craft.  The result?  Various medical conditions arise, including (but certainly not exhaustively limited to):

Postal workers who suffer from such injuries are often faced with multiple challenges:  As injuries often mount once a single medical condition begins to develop (the known phenomena of, “When it rains, it pours”), and as age begins to play a factor in one’s career (can one make it to age 56 with 30 years of repetitive stress?), can it be proven that such injuries are occupationally-related?  And what about the phenomena of the “last straw that broke the camel’s back”?  You know — you work as a letter carrier for 25 years and have been feeling sore knees for quite some time, but on a bright and sunny day you decide to challenge your teenage son to a pick-up game on the basketball court and twist your knee.  Question:  Was it really that overenthusiastic jump shot that resulted in a jarring crunch to the knee, or the 25 years of walking 10 – 20 miles on concrete surfaces that ended with a bum knee?  Of course, the Emergency Room Report notes that the “individual comes in today with right knee pain; says he was playing basketball with his son when…”.

Was the human body meant for decades of repetitive activities or motions?  Certainly, there are mitigating ways of working that one should be aware of when first a person takes on a career which will require repetitive work.  But, then, when we were 20 or so, who ever thought that we were less than invincible, indestructible, and of an enduring quantity?  The Mail Processing Clerk, the Mail Handler, the Letter Carrier, the Flat Sorter (Automation), the Electronic Technician — in his or her early days, could do the job, come home and jog 5 miles for leisure and relaxation.  Then, into one’s 30s, perhaps the tinge of soreness and hint of fatigue forced you to cut back to less strenuous activities; and by 40 or so, watching a football game was preferable to actively playing the sport, with a compromise that “gardening” was just as healthy and walking to the grocery store was good exercise as well.  Days and weeks go by; and months turn into years.  Throughout, without being fully conscious of the consequences, you have been engaging in uninterrupted repetitions of movements and activities at work which involves extensive overexertion often at the expense of proper posture or adequate rest.  Singular or multiple symptoms begin to appear:  Pain; aching that will not go away; tenderness at various sites; stiffness that cannot be stretched-away; throbbing; tingling; persistent pain; numbness; loss of sleep because of the high distractibility of pain; fatigue that borders on profound fatigue.

You are suffering from Repetitive Stress Injury.

Whether the impact is upon your shoulder, neck, back, fingers, wrists elbows, ankles, feet or some other part of your anatomy, the miracle of the durable body has begun to reveal its structural vulnerabilities.  When that realization comes to light, the distance between what you have accomplished and the goal of retirement becomes a seemingly insurmountable gap.  Filing for Federal Disability Retirement under FERS may be the best option for the Postal worker who can no longer endure the repetition required of a craft employee — or even of Managers, Supervisors and Postmasters.  It is a benefit which must be fought for and proven — that you are no longer able to perform one or more of the essential elements of your positional requirements.  The human body was ultimately never intended for endless repetitive stress, and for the Postal worker who suffers an injury or medical condition resulting from a workplace injury — or even from an off-site injury from a pick-up basketball game ( remember that eligibility for disability retirement, unlike Worker’s Compensation, does not depend upon the medical condition being work-related), consider the benefit of filing for Federal Disability Retirement with the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

 

Federal Disability Retirement for the U.S. Postal Service: What it is and Why the Benefit is Necessary

     How well must a man know his neighbor before he sheds a tear?  Does a man possess humanity merely because he walks upright and speaks well?  What is the gauge, the calculus, the determining factor, as to whether human beings have advanced?  Is it the extent of mechanization, how fast we can travel, how beautiful our technology is designed?  If a man fails to shed a tear, is he more advanced because he possesses less of an ability to exhibit his emotions?  When does a man stop representing humanity?  Or, shall we alter the named designation, and perhaps reorder our self-conception of what it means for us to “be human”?

                                                            From, Questions to Ponder in Human Terms

Postal Workers hold a unique position in the workforce.  While the timeless image of the postman walking with a friendly smile may be a fading memory, replaced by community mailboxes situated at the end of the cul-de-sac, curbside mailboxes (and various other methods to distance any intrusion into the antiseptic lives of each neighborhood), the daily contact with the U.S. Postal Service still pervades.  Despite electronic methods of replacement, email, texting, tweeting, and multiple other means of communication, the letter which arrives is still sorted, processed, transported and delivered by people – those who work at the U.S. Postal Service.

The five minutes out of the week, month or year when the average person sees a Postal employee – perhaps the Window Clerk when tax time comes around; perhaps to send something overnight; or to renew a passport – whatever the reason, such limited contact fails to betray the extent and toll of how physical and stressful the U.S. Postal jobs are.  Considering the medical impact upon one’s neck, back, shoulders, knees, wrists, etc., it is important to recognize the type of positional duties that the Postal Clerk, Letter Carrier, Mail Handler, various Motor Vehicle Operators, Heavy Equipment Operators, Expediters, or Mail Processing Clerks, among many other craft employees, must engage in on a daily basis.  The wear and tear upon the physical body; the daily stresses and mental toll resulting from time pressures, shortage of workers, overtime requirements, difficult interpersonal engagement between Supervisors, Managers and Craft employees; customer services communications; and the daily pressures of rigorous work in a fast-paced, competitive environment.  Criticism abounds these days about the Neanderthal status of the U.S. Postal Service, and some of it may be justified.  Yet, whether justified or not, it has nothing to do with the type of physical, emotional and psychological impact that the daily positional duties have upon individual lives.

Or, take the Postmaster of a small postal facility – the one who must fill in for the craft employees, work the customer service window, and perform the daily administrative duties in repetitive, unrelenting fashion on a daily basis, with reduction and attrition of the workforce, without replacement workers to fill in for absences, sick leave, annual leave, etc.  Or the Rural Carrier who must twist and turn one’s upper body, grasping, turning and reaching to place bundles of mail into mail boxes, mile after endless mile.  It is, indeed, a miracle that the human body can withstand such repetitive wearing upon muscular tissue, bone structure, nerve endings, layers of cartilage, etc., and year after year, be able to allow the individual to perform the progressively deteriorating repetitive functions which are required by the Postal Service.  We haven’t even mentioned the constant walking, mile upon mile, of the letter carrier; the walking up and down stairs, steps; of entering and exiting a motor vehicle repeatedly throughout the day.

Federal Disability Retirement benefits are a needed benefit for all Postal employees, precisely because of the unique type of physical, emotional and psychological requirements of the craft, supervisor and managerial positions at the U.S. Postal Service.   The human toll is something which the public, casual, limited and fleeting in its contact with the Postal employee, is unaware of, and unable to comprehend in its magnification of repetitive tasks throughout the course of processing, distributing and delivering of that piece of mail which arrives at the doorstep.

One might pose the query as to why the Federal Employees’ Compensation Act, administered by the Office of Worker’s Compensation Program (OWCP) under the aegis of the Department of Labor, is not sufficient to adequately compensate Postal employees when they are injured on the job.  It may well be.  But the problem is that not every medical condition can be causally proven to be related directly to the human toll resulting from the daily, repetitive, pounding deterioration by the type of Postal work and duties required.  Consider the following hypothetical:  A Mail Handler who is 48 years old and who has been working at his job for 25 years is moving a piece of furniture at the direction of his spouse.  In the course of lifting, he feels a sudden “pull” in his back, and is forced to sit down.  The piece of furniture remains in the middle of the room somewhat askew, evident that a job has been left incomplete.  The MRI reveals a disc protrusion at L5-S1, with multi-level disc degeneration, chronic pain, and radiating pain and numbness extending to his extremities.  The emergency room notes reflect the history of the medical occurrence:  “…while moving heavy furniture…”  But is that truly the causal connection?  Did the 25 years of constant bending, lifting, reaching, pulling, pushing, grasping, etc., have no medical significance, no cumulative effect?  The doctor could not relate the multi-level disc degeneration and chronic pain to his work.  OWCP, in any event, would deny such a claim outright, asserting unequivocally:  “No causal connection could be found between your medical condition and the nature, origin and type of medical injury from which you suffer.”

In real life, the Postal Worker who suffers from the hypothetical as described above, would have no viable alternative means to securing a livelihood.  The U.S. Postal Service, under the present National Reassessment Program, would refuse to accommodate such a Postal Worker, and would send him/her home, stating that, “After a full review, it has been determined by the District Reasonable Accommodation Committee that no suitable work can be found within the limitations imposed by your medical condition, and therefore the U.S. Postal Service is unable to accommodate you.”

Such hypotheticals are not mere imaginary flights of fancy; they in fact occur, and all too frequently.  That is why Federal Disability Retirement is a needed benefit for the U.S. Postal Worker.  Federal Disability Retirement is a benefit, however, which must be proven by a preponderance of the evidence to the U.S. Office of Personnel Management, that the medical condition suffered by the Postal Worker, whether under FERS or CSRS (A) prevents him or her from performing one or more of the essential elements of the job, (B) that the medical condition is expected to last for a minimum of 12 months or more, and (C) that, whether suffered on or off the job, related to the job or not, the Postal Worker has a minimum of 18 months of Federal Service under FERS, and a minimum of 5 years of Federal Service under CSRS.

Federal Disability Retirement benefits pays a Postal Worker 60% of the average of his or her highest-3 consecutive years for the first year of annuity, then 40% every year thereafter, until age 62, at which point the annuity it recalculated based upon the total number of years of service (including the years one is receiving Federal Disability Retirement benefits).  It is, however, a benefit which must be proven, and as such, is not an “entitlement”, but a benefit which must be secured by sufficient medical evidence, adequate knowledge of the governing laws, and a clear nexus between one’s medical condition and the essential elements of one’s job.