Reconsiderations and Other Medical Matters during Your USPS Disability Retirement Process

Postal employees who give their lives at the expense of their bodies, and who must file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management (with a waylay station via the H.R. Shared Service Office in Greensboro, North Carolina), may encounter a First Stage denial of the application, and wonder: Why? The job itself is so self-evidently strenuous; perhaps (the Craft Employee may query with a touch of sarcasm) the OPM “Administrative Specialist” would like to try and sort mail for a day, or walk the 9-plus mile daily route to deliver mail, or to twist, turn, drive and reach like a Rural Carrier must on a daily basis; all with a shoulder gone bad, a back which requires daily ingestion of pain killers, or working with wrist splints which fail to stabilize the necessity of restricting the dexterous use of ligaments bent in directions defying nature; but there, plain as the light of day, is a letter stating that the “medical evidence fails to show that your medical condition prevents you from performing efficient service” for the U.S. Postal Service, despite the fact that they sent you home with an admonition that there are no jobs available within the medical restrictions which your doctors have identified and imposed.

What? And so, in quick succession, the two primary questions of puzzlement, Why and What. For the Postal Worker who has done everything to extend the duration of one’s employment, imposing silence as replacement for pain until the severity of the radiating discomfort and tingling, numbness and limitation of flexion and movement, until the extent and severity could no longer be muffled, it is tantamount to an injustice plastered in disbelief.

The injured or ill Postal Worker must understand and accept the stark conceptual distinction: Pain is not the same in the human body as it is on paper. There is a vast difference, and a chasm of inseparable proportions, between the theoretical and the pragmatic. The history of one’s progressive deterioration can never be adequately conveyed or narratively delineated in an accurate, reflective manner; for, the timeline of debilitation, of the days, months and years, and sometimes decades, of slow and incremental destruction of the human body; or the subtleties of damage to the human psyche where Major Depression, Anxiety, and uncontrollable panic attacks, where once it began as a nagging feeling of tingling and sweat, but today into a paralyzing attack of chest constriction and inability to think, focus or remember; the medical condition that once was a pinprick in youth, has developed into a crisis of the body and mind, and the question when confronted in terms of filing for Federal OPM Disability Retirement benefits is, How does one persuasively convey one’s medical condition into being eligible for Federal Disability Retirement?

That is why, when a denial is issued from the U.S. Office of Personnel Management, puzzlement is quickly followed by a sense of panic. For, the person who has the epistemological privilege of experiencing the progressively deteriorating pain, or loss of mental acuity and cognitive dysfunctions, is not the same person who is represented in the paper presentation of a Postal Service Disability Retirement application submitted to the U.S. Office of Personnel Management. The chasm between the experiential “I” of the Postal Worker who began a career in good health, in full control of his or her physical and cognitive faculties, and over the years sensed the incremental deterioration and loss of both, as opposed to the skeletal identity of the person described in the applicant’s Statement of Disability as delineated on SF 3112A, is the difference between the depth of human complexity and the superficial attempt at capturing a lifetime of accomplishments and the negation of those achievements within the constrained space provided on a government form.

Then follows the ultimate act of futility: attempting to decipher the verbiage as to the reasons for the denial of one’s OPM Disability Retirement application. There are OPM Representatives who provide long and laboriously detailed expositions as to the application of the legal criteria in denying a Federal Disability Retirement application; and others who give short-shrift with de minimis attention. Somehow, the lengthier ones provide a semblance and appearance of conveying greater weight and gravity; the shorter ones leave one scratching one’s head in utter disbelief and puzzlement. In either case, the initial inclination and reaction is for the U.S. Postal Worker to immediately take notes, jot down a thousand rebutting comments and stream-of-consciousness thoughts (sort of like an initial draft of James Joyce’s Ulysses), and finally come to the devastating conclusion that all such attempts are tantamount to firing a shotgun at a flock of geese a hundred yards away: the pellets may rain upon them, but with ineffective power and sparse projection.

In the end, what one must realize when a Federal Disability Retirement application has been rejected by the U.S. Office of Personnel Management, whether one is under FERS, CSRS or CSRS Offset, is that the foundational presentation of persuasion failed in the essential elements of one’s case. The “Reconsideration” phase of a Federal Disability Retirement application is like the purgatory of a complex administrative process, the “Middle Earth” of a Tolkien fantasy. No longer in the land of initial persuasion and primary argumentation; but caught at the precipice of potentially being denied again, which would result in the necessity of filing an appeal to the U.S. Merit Systems Protection Board. One presumes that, when the initial application was filed, that you gave your “best shot” as far as medical documentation goes. What more is needed? What additional medical documentation would suffice to satisfy and effectively rebut the contesting and adversarial remarks of the OPM Denial Letter? When the body of the “discussion” section containing the underlying basis and reasoning for denying one’s USPS Disability Retirement claim consists in merely pointing out the medical evidence already submitted, then stating in bald conclusory form: “Your medical evidence fails to show that you are disabled such that you are eligible for Disability Retirement…” What is it that OPM is claiming? What further is it that they need?

Clarity of reasoning is difficult to arrive at. Templates rarely suffice to address the individual uniqueness of each Federal OPM Disability Retirement case, but templates of reasoning comprise the majority of what an OPM Denial Letter consists. It often reads like a “cut and paste” job from some other denial letter, and indeed, aside from some peripheral references to individuated medical conditions and identifying some doctors from the person’s file, that is precisely what constitutes an OPM Denial Letter.

But be not deceived, nor down in the dumps; it may be that the medical documentation was indeed sufficient; and instead of wasting one’s energy and time in attempting to decipher the content of an OPM Denial Letter, it is often useful to go back and reiterate the basics of a Federal Disability Retirement case. Three primary points, whether at the Initial Stage of an OPM Disability Retirement application, or at the Reconsideration Stage after an initial denial, must and should always be revisited: A. What are the medical conditions and the symptoms? B. How do the medical conditions prevent the Postal employee from performing one or more of the essential elements of one’s job? And C., Could such medical conditions be accommodated such that the Postal employee could continue to perform all of the essential elements of the job?

The beginning point is often the necessary endpoint. What an OPM Denial letter often does, however, is to obfuscate, confuse, and knock off of the proverbial tracks, the necessary proof needed to meet the preponderance of the evidence test. It may not be rocket science, but it is also not a simple matter to prove. Ultimately, to meet the standard of proof in winning a Federal Disability Retirement application from the U.S. Office of Personnel Management, whether at the Initial Stage of the process or just having received an initial Denial from OPM, going “back to the basics” is always the target to pursue, and that means making sure that one’s treating doctor is supportive of the Federal Disability Retirement. All else naturally flows and follows from there.

National Reassessment Program

       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

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

Postal Service’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If management deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire