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.

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

     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.

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

The OWCP Danger of Complacency for the Ill or Injured Postal Worker

I have had far too many calls by individuals who were complacent with being on OWCP/DOL temporary total disability compensation. The old adage, “Ignorance of the law is not an excuse”, is still generally true. It is the responsibility of the Postal employee to file for USPS Disability retirement benefits under FERS or CSRS in a timely fashion — within one (1) year of being separated from the Postal Service.  The fact that an individual is on the rolls of Worker’s Comp, receiving Worker’s Comp, receiving a scheduled award, going through rehabilitation or job retraining does not protect or extend the Statute of Limitations of 1 year.  Many people become separated from service without being properly notified.  A hint:  If you all of a sudden stop receiving those “Zero-balance” pay checks, chances are, you have been terminated & separated from service.  The burden is on the Federal employee to keep on top of things:  ask for your PS Form 50, or SF-50, whichever the case may be; call the Post Office or processing center on a regular basis to make sure that you are still on the rolls of the Agency.  If you have been separated from the US Postal Service, a personnel action should have been initiated.  From that moment — when you have been separated from Federal Service — you have one — I emphasize and reiterate — ONE YEAR from the date of separation from the USPS to file for disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire