FERS & CSRS Disability Retirement for the U.S. Postal Service Employee – The Needed Proof

Postal employees often feel that they are second-class citizens – both in terms of their status and stature as a “Federal employee” who is under either the Federal Employees Retirement System (FERS) or (for those lucky ones who are quickly diminishing in numbers but who were able to enter the Federal workforce prior to the 1986 transition) under the Civil Service Retirement System (CSRS); and in terms of pay scales and discussions in Congress related to bloated budgets, inability to become profitable, etc.

For Postal employees who are considering filing for Federal Disability Retirement, either under FERS or CSRS, the question is often queried as to whether the U.S. Office of Personnel Management treats Postal employees differently than non-Postal, Federal employees.   Whether there is any empirical evidence of discriminatory intent on the part of OPM against Postal employees who file for Federal Disability Retirement benefits, is essentially a non-starter.  For, in the end, each case must be decided on the unique quality and extent of the medical documentation compiled.   Further, one cannot compare and contrast differentiated groups lumped by “Postal” as opposed to “non-Postal”, precisely because the uniqueness of each Federal Disability Retirement case is characterized by the medical condition itself; the type of job and positional duties undertaken by individual X who suffers from the medical condition; and the extent, severity and chronicity of the medical conditions in relation to the duties.

With literally hundreds of Federal agencies, and thousands and tens of thousands of differing types of jobs, one cannot aggregate a generic “Postal Worker” and compare it to a compounded composite of “other Federal workers”.  Thus, it is a wrong question to ask.  Instead, the proper question to ask would be:  Given a Postal Worker who is in craft-X, who suffers from medical condition-Y, is there a greater incidence of denials from the U.S. Office of Personnel Management of Postal Workers who file for Federal Disability Retirement benefits, and if there is a greater proportional aggregate of denials as compared to the total number of denials, is there a valid reason for such disproportionate treatment?

In other words, it would be – on its face – incomparably unfair to compare an IT Specialist with the Department of the Navy, who suffers from severe Major Depression and anxiety, to a City Letter Carrier who suffers from status-post cervical discectomy and fusion, precisely because of the type of medical condition involved, and the positional requirements of both.  Further, are there inherent factors within the U.S. Postal Service which can account for any disparate treatment (if we proceed on the assumption that there even exists such differentiation of reviewing and deciding Federal Disability Retirement applications filed by Postal Workers, as opposed to non-Postal, Federal employees)?   The answer is, Yes.

The Postal Service has for years been identified with the notoriety of refusing to accommodate their workers.  Whether in association with OWCP and the Department of Labor, where workers are sent to “second opinion” doctors and “referee” medical facilities in an effort to get people off of the rolls of OWCP and back to full duty; or in conjunction with the National Reassessment Program where an across-the-board infrastructural policy was implemented stating that no accommodations were available for those craft employees who could no longer perform all of the essential functions of one’s job, and that no medical restrictions or limitations would be henceforth honored – a maneuver meant to get rid of all Postal employees who were not fully functional in their jobs – the approach of the U.S. Postal Service in attempting to regain a competitive edge was to try and get rid of anyone and everyone who suffered from a medical condition such that the medical condition prevented the employee from performing all of the essential elements of one’s job.  One might think, upon first considering that approach, that such a maneuver by the U.S. Postal Service would increase the chances for getting a Federal Disability Retirement application approved – for, by conceding that the injured craft employee cannot perform any jobs at the U.S. Postal Service, the assumption would be that such a concession would be evidence for the U.S. Office of Personnel Management, as well as the Federal Disability Retirement applicant, that one is qualified because of the self-admission by the Postal Service, for Federal Disability Retirement benefits.

The problem is twofold:  First, the U.S. Office of Personnel Management is a separate agency from the U.S. Postal Service, and applies a legal criteria which gives scant attention to what the Postal Service thinks, does, or acts upon; and Second, evidence of what the U.S. Postal Service decides – while of somewhat dubious impact and persuasive authority – is ultimately not what makes a Federal Disability Retirement applicant eligible for Federal Disability Retirement benefits.

Indeed, look, for example, beginning with some older precedential cases such as Wilkey-Marzin v. OPM, 82 M.S.P.R. 200 (1999) – where  the Merit Systems Protection Board found that in order to determine a disability retirement in favor of an appellant,  there must be a showing beyond uncorroborated subjective evidence, and provide a “reasoned explanation” of the origins of the disabilities, and how it is disabling with respect to one’s specific duties.  In providing some guiding principles, the Board noted that the Judge should consider the following evidence: (1) objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; (4) evidence relating to the effect of the applicant’s condition on his ability to perform in the grade or class of position last occupied (see also Dunn v. Office of Personnel Management, 60 M.S.P.R. 426, 432 (1994) ).  Note that nowhere in the four (4) guiding principles is there an indication that what the agency does or doesn’t do, should be of primary consideration.  This is not to say that the issue of accommodations will not be relevant; and, certainly, one can argue that an NRP-based decision of refusing any work, or the dreaded “DRAC” (the so-called District Reasonable Accommodation Committee) determination of “no work available”, cannot be effectively used; but the primary focus in a Federal Disability Retirement case, from the viewpoint of the U.S. Postal Worker, should be to prove one’s case based upon the medical documentation, and not rely upon anything which the Postal Services does or doesn’t do.

In the end, if there has been an increase in the number of disability retirement applications, in proportional numbers as compared between “Postal Workers” and any other single Federal Agency of the U.S. Government, it may be because of such unreasonable and uncompromising positions taken under the NRP, the DRAC decisions or in conjunction with OWCP claims.  For, when a determination is made that an agency (in this case, the U.S. Postal Service) will refuse to in good faith attempt to accommodate injured employees, such an intransigent policy will quite obviously increase the numbers of applications to obtain Federal Disability Retirement benefits.  But reliance upon what the agency does, without solid medical evidence to prove, by a preponderance of the evidence, that the Postal Worker is eligible and entitled to Federal Disability Retirement benefits, is to run a fool’s errand.  Postal Workers have had to face multiple obstacles over the years, both in economic downsizing and frozen pay structures; and the decision to shed its workers from within because of medical conditions is merely an indication of the heart and soul of the Postal Service – not necessarily any evidence which would qualify the Postal Worker for Federal Disability Retirement benefits.  For that, one must affirmatively go out and compile one’s case, and use such evidence of the NRP as merely a secondary, peripheral

Why Is the Postal Worker Being Removed From Service?

While a compromise position on certain issues in the U.S. Postal Service Disability Retirement for FERS & CSRS may be the best that one may hope for, obviously, clarity over question is the better course to have.  Thus, for instance, in a removal action, where a Postal employee is being removed for his or her “excessive absences,” it is best to have the proposed removal and the decision of removal to reference one or more medical conditions, or at least some acknowledgment by the Postal Service, that would explicate — implicitly or otherwise — that the underlying basis for the “excessive absences” were as a result of the medical condition.  There are cases which clearly state that where excessive absences are referenced by medical conditions, the Bruner Presumption would apply in a Federal Disability Retirement case.

Now, in those cases where the removal action merely removes a Postal employee for “excessive absences”, there are other methods which may win over an Administrative Judge to apply the Bruner Presumption.  Such “other methods” may include emails or correspondence, at or near the time of the removal action, which appears to put the Agency on notice about specific medical conditions, including attachments of doctor’s reports, medical notations, etc.  Such concurrent documentation can convince an Administrative Judge that, indeed, the question as to whether the “excessive absences” were as a result of a medical condition, and whether management was aware of such an underlying basis, is clarified by documents which provide a proper context within the reasonable time-frame of the issuance of the proposal to remove and the decision to remove.  It is always better, of course, to have clarity over a question, but sometimes the question can be clarified with additional and concurrent documentation.

Sincerely,

Robert R. McGill, Esquire

Postal Supervisors

The U.S. Postal Service can act as a little fiefdom, with minimal oversight in the use of power.  There is no school which teaches the proper use of power; power is something which is too often misused, misapplied, and abused.  And, those who possess power, often exponentially apply it when the focus of such power has become vulnerable.

Postal workers who suffer from a medical condition, who are in the vulnerable position of necessarily filing for disability retirement benefits under FERS & CSRS because of the imposition of an unwanted medical condition which impacts and impedes his or her ability to perform one or more of the essential elements of one’s job, are especially in a sensitive position, precisely because they are at the complete mercy of the Supervisor.

Supervisors need to understand and appreciate the great power which he or she possesses. The powerful need not misuse such power in order to show how powerful he or she is; indeed, it is in the very act of kindness, empathy, and the ability to show sensitivity and “human-ness” which is the true showing of the powerful.

Supervisors should “bend over backwards” to show what it means to truly be a Supervisor — one who recognizes and appreciates the long years of loyal service the disabled employee has shown; empathy for the vulnerable situation the Postal employee now finds him/herself in; kindness in the treatment of the employee.

Such kind treatment will go a long way towards encouraging a sense of community and family within an agency, and will foster the other employees in the department, office, and greater agency to work that much harder, knowing that it is not “just a job” — but a career worthy of greater devotion.

Sincerely,

Robert R. McGill, Esquire