Tag Archives: distribution clerks with medical problems

OPM Disability Retirement: The Issues That Matter for the Postal Employee

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Are there unique aspects in a Federal Disability Retirement application, separate and distinct from non-Postal, Federal employees? Are there essential features, different approaches, and distinguishable paradigms to follow? Are the rules different, applied differently, approached separately, devised insufferably, when determined to involve Postal employees? Are there unique characteristics, either through the preparation delineated from the perspective of the Postal Federal Disability retirement applicant, or from the viewpoint of the U.S. Office of Personnel Management, which should be recognized before making that leap into the wide and deep chasm of submitting a Federal Disability Retirement application to OPM?

Certainly, many of the appellate decisions handed down by the U.S. Court of Appeals for the Federal Circuit, as well as by the U.S. Merit Systems Protection Board, involve U.S. Postal employees. But is the fact that a case involving a U.S. Postal employee enough to distinguish it from other Federal, non-Postal cases? Admittedly, decisions handed down by the Federal Courts or the MSPB do not openly acknowledge any conceptual distinction between Postal employees filing for Federal Disability Retirement benefits, from non-Postal, Federal employees in multiple other agencies; and all presume (correctly and accurately) that both Postal and non-Postal Federal employees fall into the same retirement systems (FERS, CSRS or CSRS-Offset), and as such, the identical legal criteria are applied, including:

  • Minimum of 18 months of Federal/Postal accrued service in order to file for Federal Disability Retirement (for CSRS, 5 years, which presumably already has been met)
  • Not separated for more than 1 year
  • Having a medical condition, such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s job
  • Both the Federal and Postal employee cannot be reassigned to a position at the same pay or grade, and further, cannot be accommodated such that the accommodation allows the Federal or Postal employee to perform all of the essential elements of the job.

Put more succinctly, while overt treatment of both Federal and Postal employees may appear identical, are there “issues” which differentiate between the two? Certainly, and again, accurately, the cases which impact Federal employees parallel Postal employees in their direct and residual effects, and vice versa. As all Federal employees and U.S. Postal employees fall under the same retirement systems, as well as concurrently identical disability retirement benefits, the question therefore must involve any indirect consequences for the U.S. Postal worker, as opposed to the overt residuals that portend both for Federal employees and U.S. Postal workers.

Internal mechanisms unique to the Postal employee can have an impact upon how the U.S. Office of Personnel Management views, analyzes and evaluates a Federal Disability Retirement application submitted by a U.S. Postal worker. Thus, for example, the National Reassessment Process (or as some designate the acronym as representing the term, “Program”) impacted all Postal employees throughout the nation, across all crafts, in reviewing all injured Postal employees serving in a limited duty capacity or other “temporary” light duty assignment, in an effort to ultimately “squeeze” the employee, shed the Postal organization of any and all Postal workers in less than “fully productive” capacity, and return them to the OWCP rolls. But temporary “light duty” assignments, or even “limited duty” assignments (whatever the conceptual differences are between the two), were deemed not to prevent a Federal or Postal employee from being eligible for Federal Disability Retirement benefits. The U.S. Office of Personnel Management fought hard against such a ruling, and indeed, in the beginning (at the MSPB level), prevailed in this viewpoint.

Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001), and further extended in Marino v. Office of Personnel Management, 243 F. 3d 1375 (Fed. Cir. 2001), is a landmark case in clarifying what constitutes an “accommodation” as opposed to a temporary measure of convenience – both for the Federal and Postal employee, as well as for the agency and the U.S. Postal Service. Until the nationwide interference by the NRP in “meddling” with a system that was working, the Postal Service was attempting to maintain the delicate balance between the Postal Service’s inherent need to remain productive and efficient on the one hand, and the rights of the Postal worker who had incurred a medical disability (the majority of which were OWCP-accepted, on-the-job injuries) but retained a desire to continue working. In recognizing the two sides of “needs” and “wants”, the Postal Service created temporary, limited and light-duty assignments. When the NRP began sending Postal workers home with summary dismissals accompanied by curt declarations somewhat in the manner of, “Based upon a review of your medical conditions and the availability of work in your craft, we have determined that the U.S. Postal Service is unable to find suitable work for you” – the remaining option for stranded Postal Workers was to file for Federal Disability Retirement.

The legal definition of an accommodation, for purposes of Federal Disability Retirement, is anything that an agency can do for the Federal or Postal employee which enables “him to perform the critical or essential duties of his official position.” (See, e.g., Selby v. OPM, 2006 MSPB 161, decided June 9, 2006). Thus, placing a Federal employee in a temporary position, or a “light duty” job, does not constitute an accommodation under the law, precisely because such an action on the part of the Agency is to merely sidestep or otherwise avoid the primary concern: such a Federal or Postal employee is still unable to perform all of the essential elements of the official position. For a long time, the issue of whether or not “light duty” constituted an accommodation was essentially an irrelevant one. Prior to the NRP, the Postal Service “accommodated” (using the term very loosely) its injured workers, by allowing for limited or light duty. With the advent of the NRP, the game-changing nature of their meddling became clear: Rid and shed, and let OPM determine whether or not the two-edged sword was sharp on both sides: the Postal Service has no work, anymore, but the Postal worker has been working for many years after incurring a medical condition. Would such a Postal worker still qualify for Federal Disability Retirement benefits?

Vestiges of outmoded thought processes still retain their residual effects well beyond the life-cycle of viability. It is said that hair follicles and toenails continue to grow beyond the certainty of death; perhaps it is merely a myth, or a misperception as dehydration occurs and retraction of surrounding skin leaves the impression of growth and extension. OPM has fought their fight, and lost. Postal workers are still being sent home with summary dismissals based upon “unavailability of work,” and left to fend for themselves while receiving zero-balance paystubs for years, sometimes decades. At some point, the Postal Worker realizes that OWCP is not a retirement system, and being sent to a “second-opinion” evaluation may mean the end of temporary-total Worker’s comp payments. Then what? Filing for Federal Disability Retirement is the option to pursue, but perhaps it has been years since a treating doctor has certified that a medical condition even exists. As there is a wide chasm between perception and reality, so we return to the original question: Are there overt “issues” which differentiate between treatment of Federal employees as opposed to Postal workers? It may well be that the issues remain fairly identical, but the circumstances which create the difficulties make for a distinguishing difference.

But then, that has always been the case with Postal employees – that “quasi-Federal worker” who works for the only Constitutionally-recognized agency, but somehow is relegated as the second-class citizen in the complex universe of Federal systems, and left to consider the administrative procedures governing Federal Disability Retirement benefits for both Postal and Federal non-Postal employees. In the end, it is the very uniqueness of how the non-Postal Federal sector views the Postal worker, which mandates a cautious approach to be taken when the Postal employee considers preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire
Postal Employee Medical Retirement Lawyer

 

National Reassessment Program

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       Postal Workers call me daily inquiring about the viability of filing for Federal Disability Retirement benefits under FERS or CSRS. Often, it is in response to the U.S. Postal Service’s initiation of actions resulting from the NRP. The “National Reassessment Program” (which is neither a “program” designed with any rational basis, nor a “reassessment” of anything but an attempt to shed all workers from the rolls of the U.S. Postal Service who are not fully productive and capable; but, alas, at least the term “National” does seem true) is designed to, in a heartlessly methodical manner, do the following:

A. Inform the targeted Postal Worker of the unavailability of work.

B. Force the Postal Worker to begin receiving benefits from FECA (OWCP) .

C. Begin a process of “vocational rehabilitation” – a euphemism for trying to locate a private sector job – any job – that you might qualify for.

D. Get you off of OWCP rolls once you are determined to be “suited” to the private sector job.

      The above applies on the assumption that you have a FECA (OWCP) accepted claim. If you do not have an OWCP-accepted claim, then only “A” above applies to you, and you will essentially be sent home without the “benefit” of “B – D”.

       All sectors – Federal and State Government, and private sector jobs – “downsize” during economically challenging times. In this economy, where job growth is stagnant and budgets are being squeezed more and more each fiscal year, the U.S. Postal Service is attempting to shed its payrolls of all workers who are not “fully productive”. With the latest numbers showing that the first quarter of 2010 left the U.S. Postal Service with a revenue decline of 3.9% resulting in a net loss of $297 million, the onerous steps as envisioned under the National Reassessment Program will only accelerate.

      The NRP is a “controlling” mechanism. The methodology of the program is to make the Postal Worker financially dependent upon OWCP payments and once dependent, to dictate the terms of the “vocational rehabilitation” such that you have no choice in the matter. In comparison to Federal Disability Retirement benefits, it certainly pays more (with a dependent, 75% tax free; without a dependent, 66 2/3% tax free, as opposed to Federal Disability Retirement benefits which pays 60% of the average of one’s highest three consecutive years the first year, then 40% every year thereafter under FERS, all of which is taxable). But the freedom which one gives up by submitting to the NRP Program is precisely what is intolerable.

       Many Postal Workers turn to Federal Disability Retirement benefits in lieu of FECA – or, at the very least, file for and obtain an approval for Federal Disability Retirement benefits as a “back-up” system to FECA. In comparison to the “benefits” under FECA (OWCP), Federal Disability Retirement benefits under FERS (and, similarly, under CSRS, although the percentage of benefits under CSRS remains static) provides the following:

A. It is a retirement system – so that one is actually separated from Federal Service, and further, except for the potential of a Medical Questionnaire every two years (if you are randomly selected), the disability annuitant is not under constant scrutiny

B. An individual Federal Disability Retirement annuitant is allowed to become employed in the private sector and make up to 80% of what one’s former Federal or Postal position currently pays, in addition to the disability annuity

C. An individual under Federal Disability Retirement is not dependent upon the often arbitrary and capricious decision-making process of OWCP. It allows one to decide and determine the future course of one’s life.

       Ultimately, the National Reassessment Program will impact you, the injured Postal Worker, whether today, next week, or a year from now. If self-determination is an important element of your life, then it is wise to take steps today, and to affirmatively make choices soon, before you attempt to go to work one day and are sent home with a letter stating, “There is no work available for you”. Or, you may not even receive the courtesy of a letter.

       The Postal Worker is probably unaware of one additional fact: all these years while the Postal Worker has been in a “Modified” light-duty position, while the U.S. Postal Service “accommodated” the worker by allowing for temporary positions at less than full duty requirements – all these years, that Postal Worker was eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS. You may simply have not known this, but being allowed to work in a “light duty” status, or in a “Modified Position”, was never a legally-sufficient accommodation under the law. (See Bracey v. Office of Personnel Management, 236 F.3d 1356 , Fed. Cir. 2001, as well as my related articles on the subject¹). During these years, the system worked in a crippled way — injured workers were allowed to continue to work, and the economy allowed the U.S. Postal Service to trudge along – albeit at a yearly loss.

       Today, however, choices must be made. The National Reassessment Program is here in your neighborhood, and it is no longer allowing for the old system to continue unabated. If you are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS, now is the right time. To wait is to delay the inevitable; to ignore the inevitable is to allow the circumstances to dictate your future.

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¹ The Bracey Decision and other resources published by attorney Robert R. McGill:

a) Brief legal analysis of non-statutory laws: The Bracey Decision.

b) Blogs that mention Bracey v. Office of Personnel Management:

c) Some articles that also mention Bracey v. Office of Personnel Management:

d) Miscellaneous posts:


The U.S. Postal Service and Federal Disability Retirement: The National Reassessment Program, the Agency and the Worker

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The U.S. Postal Service has, for many years, been a “good employer” for thousands of hard-working Postal employees.  By ascribing the term “good”, of course, one enters into the dangerous territory of different experiences in a wide-range of sectors across the United States, for just as there are “good” and “bad” people, there are good and bad Post Offices, Postmasters, Supervisors, Rural and City Carriers, Maintenance and Electronic Technicians, Clerks, Distribution Clerks, Mail Handlers, etc.  Individuals determine the moral and ethical designation of “good” or “bad”; individuals collectively make up an organization, which is reflective of the type, character and tenor of the individuals within that organization.

Thus, by the conceptual term “good employer”, is merely meant that it has allowed for thousands of hard-working, productive Postal employees to earn a decent wage. “Goodness” of an agency comes about because of good people, and if goodness is in any way determined or defined by the hard work of the majority of the people of any organization, then it is indisputable that the Postal Service, all things considered, is indeed a good agency.

Changes have been in the works.  And they continue to alter the landscape of the U.S. Postal Service.

For many years, when an on-the-job injury occurred, and an OWCP claim was filed, despite the onerous provisions of the Federal Employees Compensation Act (FECA), it allowed for temporary compensation benefits, including wage-loss benefits for total or partial disability, monetary benefits for permanent loss of use of a schedule member, medical benefits, as well as vocational rehabilitation. Yes, FECA is a hassle.  Remember, however, that FECA was never created as a “Retirement System” – but rather, as a means to temporarily compensate the injured worker while attempting to provide for rehabilitation resulting in an eventual return to work.   To that end, even when the injured employee never fully recovered, the Postal Service, in cooperation with OWCP, would attempt to offer various “light duty” or “modified duty” assignments, so that the Postal employee could be retained in a productive capacity.

There is actually nothing wrong with the U.S. Postal Service offering ‘light duty’ or ‘modified assignments’ over the years.  Now, however, with the onerous sweep of the National Reassessment Program (NRP) which is effectively telling all Postal Workers who are not “fully productive” that there are no more “light duty” assignments remaining; no longer can you remain in a “modified duty” position.  You are sent home with a terse explanation that there is no work for you, and you may file for OWCP benefits.  However, only a fool would believe that OWCP benefits will last forever.

What is the choice?  What alternatives are left?  Because Federal Disability Retirement benefits will often take 6 – 8 months to apply for and get approved, it is a good idea to start the process as early as possible.  You may stay on OWCP for as long as you can, or for the length of time FECA allows you to receive such benefits, but there will be a day, sooner than later, when such benefits will be cut off – either through

“vocational rehabilitation” (Translation:  find you a job, any job, that pays at or near what your Postal job paid, and be able to argue that you are no longer entitled to OWCP benefits), referral to an “Independent Second Opinion Doctor” who may look at you (or perhaps not even look at you) and spend five minutes before declaring that you have no residual symptoms and you should be able to return to full duty (Translation:  no more OWCP benefits, but we all know you can’t go back to carrying mail or performing the heavy lifting, bending, pushing, reaching grasping, etc.).

Would you qualify for Federal Disability Retirement benefits under FERS or CSRS?  Assume the following hypothetical:  X suffers from bilateral carpal tunnel syndrome, or perhaps from chronic back pain, failed back syndrome, or chronic pain throughout one’s musculature; it originated from an OTJ injury, accepted by OWCP, and for a decade X worked in a modified light duty job.  The job is no longer in existence (by the way, the fact that such a job is now “no longer in existence” is precisely what attorneys who specialize in Federal Disability Retirement benefits have been arguing for years – that a ’modified light duty’ does NOT constitute an accommodation under the law, precisely because it was merely a temporary position with an ad hoc set of duties, and nothing more).  Can you qualify for Federal Disability Retirement benefits?

Hint:  Note what the Administrative Judges at the U.S. Merit Systems Protection Board stated in the case of Selby v. OPM, Docket #SF-844E-05-0118-I-1, decided June 9, 2006:  “The fact that he was receiving two hours of workers compensation a day also buttresses his claim that his injuries prevented him from performing many of the critical elements of his position.”  In other words, any granting of receipt of OWCP benefits (in this particular case, it was compensation for 2 hours per day, but the argument can be extended to include any amount of compensation) only reinforces and supports (“buttresses”) the argument by a Postal Worker that he or she could not perform the full panoply of the essential elements of one’s job.  Being able to work the full 8 hours in the full description of one’s craft job, is what is required.  Otherwise, it is likely that you qualify for Federal Disability Retirement benefits under FERS or CSRS.

The National Reassessment Program is merely reflective of a wider economic trend; technological changes have altered the landscape of labor-intensive jobs; automation is the focal emphasis in every agency and department; budgetary considerations result in the “bottom-line” approach to personnel decisions.  Where does it all lead to, and what does it all mean for the Postal Worker?  If you believe that, after 20 years of faithful service, after having shown that you are a “good” employee, that such faithful loyalty will be returned “in kind”, while your naiveté may be commendable, your may be sorely disappointed in the manner in which the Agency will treat you.  If the NRP impacts you, you need to make some pragmatic decisions, and one of them may well be to file for Federal Disability Retirement benefits under FERS or CSRS.

Do you have a medical condition or disability which would qualify?  Often, the question is asked whether or not Psychiatric conditions are more difficult to qualify under the criteria of Federal Disability Retirement.  The spectrum of psychiatric conditions, from Major Depression, Anxiety, panic attacks, Asperger’s Syndrome, Bipolar Disorder, ADHD, Obsessive-Compulsive Disorder, etc., are all medical conditions which, if they prevent you from performing one or more of the essential elements of your job, would qualify you for a Federal Disability Retirement annuity.  Psychiatric cases are no more difficult these days than “physical” disabilities.

In this day and age, it is unfortunate but true, that there has arisen a contentious relationship – between “the Agency” and “the Postal Worker”.  Both are supposed to constitute a single organic entity, unified in purpose; but where the Agency has initiated a deliberate program to “weed out” those Postal Workers – regardless of the years of faithful service – who, because of an ongoing medical condition, are considered to be less than “fully productive”, then it is time for the Postal Worker, whether the Clerk, the Postmaster, the EAS Supervisor, the Maintenance Technician, the Electronic Technician, the Rural Letter Carrier, the City Letter Carrier, or the multitude of countless other important jobs performed at the U.S. Postal Service – time to tap into a benefit which has always been there, but has often been unused, underused or ignored:  Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire