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

Federal Disability Retirement for U.S. Postal Service Employees – The Needed Proof

Postal Service 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 Postal Medical Retirement 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 Postal Disability Retirement applicant eligible for Postal 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 Federal or Postal Service 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 Service employees 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 evidence.

Sincerely,

Robert R. McGill, Esquire

 

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

To Resign or Not To Resign From the US Postal Service

I am often asked whether or not it is okay to resign from the Post Office prior to either (1) filing for disability retirement or (2) receiving a decision from the Office of Personnel Management. A decision to resign from the Agency must be weighed very carefully, for there are multiple factors which must be considered.

I will try and outline a few of the considerations to be weighed:

(1) What advantage is gained by resigning? If it is merely to avoid the hassles of dealing with the Postal Service (the USPS may insist upon updated medical documents every couple of weeks; they may call and harass you every week; you may have an unsympathetic supervisor, etc.), then I normally advise against resigning. There is no advantage to resigning, other than the quietude of being separated from service. As an attorney, I believe that is not enough of a reason.

(2) What is the disadvantage of resigning? There may be many: Any leverage to force the Postal Service to cooperate with a disability retirement application may be lost; if your doctor has not yet written a medical narrative report (and, believe me, for some doctors, that can take months), the doctor will have to be reminded that any statement of employment impact must pre-date the date of resignation; you lose the leverage of that which the Postal Service holds most dear, for no price: your position. For the position you fill, that slot which suddenly becomes vacant once you resign, is that which is most dear, most valuable for the Agency: and to resign is to give it up without having the USPS pay any cost.

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