National Reassessment Program

       Postal Workers call me daily inquiring about the viability of filing for Federal Disability Retirement benefits under FERS or CSRS. Often, it is in response to the U.S. Postal Service’s initiation of actions resulting from the NRP. The “National Reassessment Program” (which is neither a “program” designed with any rational basis, nor a “reassessment” of anything but an attempt to shed all workers from the rolls of the U.S. Postal Service who are not fully productive and capable; but, alas, at least the term “National” does seem true) is designed to, in a heartlessly methodical manner, do the following:

A. Inform the targeted Postal Worker of the unavailability of work.

B. Force the Postal Worker to begin receiving benefits from FECA (OWCP) .

C. Begin a process of “vocational rehabilitation” – a euphemism for trying to locate a private sector job – any job – that you might qualify for.

D. Get you off of OWCP rolls once you are determined to be “suited” to the private sector job.

      The above applies on the assumption that you have a FECA (OWCP) accepted claim. If you do not have an OWCP-accepted claim, then only “A” above applies to you, and you will essentially be sent home without the “benefit” of “B – D”.

       All sectors – Federal and State Government, and private sector jobs – “downsize” during economically challenging times. In this economy, where job growth is stagnant and budgets are being squeezed more and more each fiscal year, the U.S. Postal Service is attempting to shed its payrolls of all workers who are not “fully productive”. With the latest numbers showing that the first quarter of 2010 left the U.S. Postal Service with a revenue decline of 3.9% resulting in a net loss of $297 million, the onerous steps as envisioned under the National Reassessment Program will only accelerate.

      The NRP is a “controlling” mechanism. The methodology of the program is to make the Postal Worker financially dependent upon OWCP payments and once dependent, to dictate the terms of the “vocational rehabilitation” such that you have no choice in the matter. In comparison to Federal Disability Retirement benefits, it certainly pays more (with a dependent, 75% tax free; without a dependent, 66 2/3% tax free, as opposed to Federal Disability Retirement benefits which pays 60% of the average of one’s highest three consecutive years the first year, then 40% every year thereafter under FERS, all of which is taxable). But the freedom which one gives up by submitting to the NRP Program is precisely what is intolerable.

       Many Postal Workers turn to Federal Disability Retirement benefits in lieu of FECA – or, at the very least, file for and obtain an approval for Federal Disability Retirement benefits as a “back-up” system to FECA. In comparison to the “benefits” under FECA (OWCP), Federal Disability Retirement benefits under FERS (and, similarly, under CSRS, although the percentage of benefits under CSRS remains static) provides the following:

A. It is a retirement system – so that one is actually separated from Federal Service, and further, except for the potential of a Medical Questionnaire every two years (if you are randomly selected), the disability annuitant is not under constant scrutiny

B. An individual Federal Disability Retirement annuitant is allowed to become employed in the private sector and make up to 80% of what one’s former Federal or Postal position currently pays, in addition to the disability annuity

C. An individual under Federal Disability Retirement is not dependent upon the often arbitrary and capricious decision-making process of OWCP. It allows one to decide and determine the future course of one’s life.

       Ultimately, the National Reassessment Program will impact you, the injured Postal Worker, whether today, next week, or a year from now. If self-determination is an important element of your life, then it is wise to take steps today, and to affirmatively make choices soon, before you attempt to go to work one day and are sent home with a letter stating, “There is no work available for you”. Or, you may not even receive the courtesy of a letter.

       The Postal Worker is probably unaware of one additional fact: all these years while the Postal Worker has been in a “Modified” light-duty position, while the U.S. Postal Service “accommodated” the worker by allowing for temporary positions at less than full duty requirements – all these years, that Postal Worker was eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS. You may simply have not known this, but being allowed to work in a “light duty” status, or in a “Modified Position”, was never a legally-sufficient accommodation under the law. (See Bracey v. Office of Personnel Management, 236 F.3d 1356 , Fed. Cir. 2001, as well as my related articles on the subject¹). During these years, the system worked in a crippled way — injured workers were allowed to continue to work, and the economy allowed the U.S. Postal Service to trudge along – albeit at a yearly loss.

       Today, however, choices must be made. The National Reassessment Program is here in your neighborhood, and it is no longer allowing for the old system to continue unabated. If you are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS, now is the right time. To wait is to delay the inevitable; to ignore the inevitable is to allow the circumstances to dictate your future.

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¹ The Bracey Decision and other resources published by attorney Robert R. McGill:

a) Brief legal analysis of non-statutory laws: The Bracey Decision.

b) Blogs that mention Bracey v. Office of Personnel Management:

c) Some articles that also mention Bracey v. Office of Personnel Management:

d) Miscellaneous posts:


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

OWCP, the Postal Service and the National Reassessment Program

For many years, being on Worker’s Comp when injured while working for the Postal Service, worked fairly well. The Postal Service, in conjunction with, and in coordination, would offer an acceptable “light duty position”, delineating the physical restrictions and medical limitations based upon the treating doctor’s clinical assessment, or in accordance with the OWCP-appointed doctor. The Postal employee would then work in that “modified position”, and so long as the Postal Supervisor or Postmaster was reasonable (which was not and is not always the case), the coordinated efforts between OWCP, the U.S. Postal Service and the Postal employee would result in years of “quiet truce”, with the tug and pull occurring in some of the details of what “intermittent” means, or whether “2 hours of standing” meant two hours continuously, or something else – and multiple other issues to be fought for, against, and somehow resolved.

The rules of the game, however, have radically changed with the aggressive National Reassessment Program, instituted in the last few years in incremental stages, nationwide. Now, people are summarily sent home and told that “no work is available”. Postal Workers are systematically told that the previously-designated modified positions are no longer available — that a worker must be fully able to perform all of the essential elements of his or her job. This last point, of course, is what I have been arguing for many, many years — that the so-called “modified job” was and is not a permanent position, and is therefore not a legal accommodation under the laws governing Federal Disability Retirement for FERS & CSRS employees.  After so many years of having the Post Office and the Office of Personnel Management argue that such a “modified job” is an accommodation, it is good to see that the truth has finally come out.

Sincerely,

Robert R. McGill, Esquire