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

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.