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:
- FERS & CSRS Federal Disability Retirement: The Agency & the Individual. Lawyers.com (September 24, 2009).
- Recurring Issues of FERS & CSRS Disability Accommodation and Light Duty Questions. The WordPress.com (April 11, 2008).
- Accommodation Under FERS & CSRS Disability Retirement. WordPress.com (March 20, 2008).
- Additional Guidance on Disability Retirement/Supervisor’s Statement. Lawyers.com (March 15, 2008).
c) Some articles that also mention Bracey v. Office of Personnel Management:
- FERS & CSRS Disability Retirement: Striking the Right Balance. MyFederalRetirement.com (May 5, 2010).
- The Difference between ‘Accommodation’ Used in a General Sense, And in a Legal Sense. FederalDisabilityLawyer.com (March 23, 2010).
- Federal Disability Retirement under FERS and CSRS: Revisiting “Accommodation”. FedSmith.com (March 12, 2010).
- OPM’s Medical Questionnaire And The Issue Of Accommodations. FederalDisabilityLawyer.com (September 10, 2007).
- Federal Disability Retirement And The Agency Cover Of “Accommodation”. FederalDisabilityLawyer.com (October 26, 2006).
- Federal Disability Retirement And The Law Today. LetterCarrierNetwork.Info and also in the PostalMag.com website (July, 2004).
- OPM Disability Retirement And Accommodation. FederalDisabilityLawyer.com and the PostalReporter.com (Originally posted somewhere else on February 7, 2003).
- Federal Disability Retirement. FederalDisabilityLawyer.com (Originally posted somewhere else on June 2, 2002)
d) Miscellaneous posts:
- A question about FERS vs CSRS and the Bracey decision. Lawyers.com (September 1, 2009).
- Another question about Federal Disability Retirement. Lawyers.com (February 22, 2008).
I have been given a jo offer of 45 MINUTES A WEEk. Of course it is at the outer part of the 50 mile limit. A little late, but I am applying for Disability Retirement. Do you know of any others like this? They appear to be giving me 45 minutes to avoid the OWCP retraining and placement. The injury I have will make it difficult to place me. I do have an LWEC for 20 hrs per week (4hrs per day). Rediculous but SNAFU.
I have an approved OWCP claim, I have had back surgery. I have been advised that there is not suitable work for my restrictions. My doctor says that my restrictions are permanent. I have been off work for almost a year now. I got a letter saying that my medical benefits were being changed, unless I had changes in my restrictiond that would be re-evaluated to see if work was available. My question is, do I qualilify for medical disability at this point? I have gotten a letter stating that I am now being considered for Phase 2 of the NRP. Do I have to wait to see what work they can rehabilitate me for? What are the steps to applying for disability, and what are the pay differences? My docotr does not say that I cannot work. Only very limitedly and with several breaks to keep my pain managable, I would have to wear a back brace daily. I am aware that I am yet another possible number to be taken off the payroll. I really just need to know what I need to do next. Thank you
My doctor has stated and is writing my medical disability papers as we speak. However, I am required to attend a Vocational Reassement class 3/31/11 receiving a letter that states I am to treat this day as a regular work day. Does this have a significan meaning in regards to receiving continued owcp compensation?
Have been in the NRP program for quite a while. Have not filed for compensation from the Dept. of Labor as I should have for no good reasons. Now because of things getting tighter will file to be compensated for the 2.5 hrs that I don’t work per day . At this point it might make sense for me to consider disability retirement. I need to get some good concrete advise on what to do. Would appreciate any help you can provide. PS Have almost 35 yrs service.
Can you please call me or email me I would like to discuss some concerns regarding eligibility and consideration for government employment transfer. Thanks Sheri
I filed an appeal with the MSPB had a conference call with the judge and the attorney for the Postal Service alone with my rep. The conference called was held in May 2011. The Judge gave us 30 days to reach a decision by June. I’m still waiting on a decision from the MSPB Judge. Do you know how long can a decision take? The Judge claimed that my argument made some valid points. I asked that I be given a total disability retirement paying the same amount that I’m receiving from OWCP which is 75% of my pay. Today, I received a letter from OWCP telling me that they are reducing my pay in half base on the Vocational counselor job finding that goes totally against my medical restriction. Now, I’m given 30 days to submit an argument to OWCP concern the reduction in pay. You stated that now is the time to file for disability retirement. I’m still here waiting on the MSPB and the Union and as of this day I haven’t heard from neither. I was told by a friend that they drop the NRP because it was unconstitutional. Do you know anything about it?
I was forced to retire in June of 2009, I had no intentions on retiring, I want to know were are you with the law suit and am I still considered in that law suit.
In response to Florenda’s comment, when you file for disablilty retirement, you are given the “CHOICE” to remain on OWCP or to take your retirement from FERS or CSRS. They CANNOT drop your pay according to the rehab counselor recommendations!!!! I have been on Disability Retirement for a year now,and I am still receiving my 75% from OWCP!!! Call and ask the Human Resource Dept for an estimate of your retirement and a packet for disability retirement. Also have ALL of your doctors information and paperwork supporting your disability.