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Postal Medical Retirement: Understanding the Basics of a FERS Disability Application

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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

U.S. Postal Service injuries: The Durable Body

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Have you ever seen those videos depicting mechanized arms repetitively opening and closing a car door in order to test the durability of an automobile’s structural soundness?  Robots and automation have replaced such testing scenarios; for, in the “old days”, you can imagine a “quality assurance specialist” opening and closing, opening and closing the door, the hood, the trunk, etc., to make sure that it doesn’t fall apart — and in the meantime, doing grave physical damage to the inspector’s own anatomy because of repetitive stress upon doing the same job over and over again.

Flat sorting machines at USPS distribution centersThe human body has often been marveled at.  If from a religious viewpoint, it is perfection created in the image of a perfect being.  If from an evolutionary standpoint, it is the result of a lengthy elimination of genetic mishaps through trial-and-error consummated by a process where the survival of the “fittest” wins out.  Yet, every functional anatomy — whether made of human flesh, of mechanical apparatus or a combination of both (what was once referred to as “bionic” limbs) — has its limitations, and whether the human body was meant to undergo repetitive usage necessitated by the requirements of employment is a question to be pondered.

U.S. Postal workers are exposed to a unique hazard — that of repetitive stress injuries.  Such injuries or medical conditions are caused by the human anatomy engaging in repeated movements and motions performed over and over again, whether for employment or in daily living activities.  The effects culminating from such activities are often identified as “repetitive stress injuries”, or sometimes as “cumulative trauma disorders”, “repetitive motion disorders” or “overuse syndromes”.  However one terms it, the resultant consequences encapsulate a wide range of medical conditions and physical injuries which impact muscles, ligaments, tendons, nerves, and the structural integrity of interconnective tissues which make the miracle of the human body work.

U.S. Postal workers are particularly susceptible to such personal injuries, precisely because they must engage in such repetitive motions and movements in the daily course of their craft.  The result?  Various medical conditions arise, including (but certainly not exhaustively limited to):

Postal workers who suffer from such injuries are often faced with multiple challenges:  As injuries often mount once a single medical condition begins to develop (the known phenomena of, “When it rains, it pours”), and as age begins to play a factor in one’s career (can one make it to age 56 with 30 years of repetitive stress?), can it be proven that such injuries are occupationally-related?  And what about the phenomena of the “last straw that broke the camel’s back”?  You know — you work as a letter carrier for 25 years and have been feeling sore knees for quite some time, but on a bright and sunny day you decide to challenge your teenage son to a pick-up game on the basketball court and twist your knee.  Question:  Was it really that overenthusiastic jump shot that resulted in a jarring crunch to the knee, or the 25 years of walking 10 – 20 miles on concrete surfaces that ended with a bum knee?  Of course, the Emergency Room Report notes that the “individual comes in today with right knee pain; says he was playing basketball with his son when…”.

Was the human body meant for decades of repetitive activities or motions?  Certainly, there are mitigating ways of working that one should be aware of when first a person takes on a career which will require repetitive work.  But, then, when we were 20 or so, who ever thought that we were less than invincible, indestructible, and of an enduring quantity?  The Mail Processing Clerk, the Mail Handler, the Letter Carrier, the Flat Sorter (Automation), the Electronic Technician — in his or her early days, could do the job, come home and jog 5 miles for leisure and relaxation.  Then, into one’s 30s, perhaps the tinge of soreness and hint of fatigue forced you to cut back to less strenuous activities; and by 40 or so, watching a football game was preferable to actively playing the sport, with a compromise that “gardening” was just as healthy and walking to the grocery store was good exercise as well.  Days and weeks go by; and months turn into years.  Throughout, without being fully conscious of the consequences, you have been engaging in uninterrupted repetitions of movements and activities at work which involves extensive overexertion often at the expense of proper posture or adequate rest.  Singular or multiple symptoms begin to appear:  Pain; aching that will not go away; tenderness at various sites; stiffness that cannot be stretched-away; throbbing; tingling; persistent pain; numbness; loss of sleep because of the high distractibility of pain; fatigue that borders on profound fatigue.

You are suffering from Repetitive Stress Injury.

Whether the impact is upon your shoulder, neck, back, fingers, wrists elbows, ankles, feet or some other part of your anatomy, the miracle of the durable body has begun to reveal its structural vulnerabilities.  When that realization comes to light, the distance between what you have accomplished and the goal of retirement becomes a seemingly insurmountable gap.  Filing for Federal Disability Retirement under FERS may be the best option for the Postal worker who can no longer endure the repetition required of a craft employee — or even of Managers, Supervisors and Postmasters.  It is a benefit which must be fought for and proven — that you are no longer able to perform one or more of the essential elements of your positional requirements.  The human body was ultimately never intended for endless repetitive stress, and for the Postal worker who suffers an injury or medical condition resulting from a workplace injury — or even from an off-site injury from a pick-up basketball game ( remember that eligibility for disability retirement, unlike Worker’s Compensation, does not depend upon the medical condition being work-related), consider the benefit of filing for Federal Disability Retirement with the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

 

The Postal Worker Today: Choices, FERS & CSRS Disability Retirement, and Protecting one’s Future

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     Hypothetical:  A U.S. Postal Worker has been working for the past 7 years in a modified position.  Seven years ago, he injured himself on the job; he filed for OWCP benefits, had surgery, and returned some months later in a position within the same Craft, but modified to fit his medical restrictions and limitations.  By all accounts, he has been a productive worker.   Without warning, one day the Postal Worker is called into the office, interviewed, reassured, then escorted from the facility and informed that there is no longer any work for him to do, and that, by the way, “You can file for Worker’s Comp.” 

     Can such a hypothetical occur?

     The reality is that, under the National Reassessment Program (NRP), such a hypothetical is not a fictional instance of someone’s imaginative fantasy; rather, it is a reality which is occurring today. 

     In the world of the U.S. Postal Service and the injured worker who has one or more medical conditions such that he or she has restrictions or limitations which prevent one from performing the full panoply of the duties as outlined in the Position Description, there is no such thing as “bilateral loyalty”.  Bilateral loyalty goes like this:  You give your life to the organization, and the organization will be loyal to you.  The reality is the opposite:  You give your life to the organization, and if you can’t do the full duties of your bid job, you will no longer have a job with us.  The latter is termed, “unilateral loyalty” (i.e., kill yourself for our sake, and we’ll get rid of you if we find that you cannot perform the full duties of your position).

     Whether you are a City Letter Carrier, a Rural Carrier, a Mail Handler, Mail Processing Clerk, Distribution Clerk, Sales & Service Associate, Supervisor of a large, small, or mid-sized facility, or even a Postmaster – if you cannot perform the full duties of your position, your are in danger of being “downsized” (i.e., a euphemism for being terminated, or otherwise denied work).

     Are there solutions to the hypothetical-turned-reality in the world of layoffs, and in light of the National Reassessment Program?  There are multiple problems which continue to arise in the scenario as described above:  OWCP is not a retirement system, and their rolls are being scrutinized with greater regularity, and the eligibility standards appear to be tightening ever more.  Can one file for unemployment benefits even though the Postal Worker is still officially on “the rolls” of the U.S. Postal Service?  Will the Postal Service separate you from service, or will they wait for a year, keeping you on LWOP?  And how about Health Insurance benefits – will the Postal Service continue to maintain the premiums so that you will not lose your Health Insurance benefits?

     In the end, each Postal Worker – in whatever Craft or position one is in – must make decisions which are financially beneficial to the self-interest of the individual.  The term “self-interest” is not meant to be used as a pejorative or negative term – for, that is precisely how the U.S. Postal Service views the entire matter from their perspective – from the organizational self-interest.

     Thus, whether an individual Postal Worker, in any given Craft, suffers from a medical condition or disability – whether psychiatric or physical – he or she must protect and secure one’s financial future.  Filing for Federal Disability Retirement under FERS or CSRS is a viable option which allows for the Postal Worker to retire, receive a monthly annuity, retain the Health Insurance benefits from the Federal System, and go on to find other employment and be allowed to earn up to 80% of what the former Postal Job currently pays.  Remember – OWCP is not a retirement system.  As such, while it is a temporary means of being compensated, it will not last forever.  Further, remember that an individual under FERS or CSRS may concurrently file for OWCP benefits and get a Federal Disability Retirement approved, and continue to remain on OWCP until such time that one’s OWCP benefits are cut off or otherwise terminated.  If you already have the FERS or CSRS disability retirement benefits approved, you can “activate” such benefits once your OWCP benefits are terminated.  This is an important point to consider, because it can often take 6 – 8 months, or more, to get a Federal Disability Retirement application under FERS or CSRS approved.