OPM Disability Retirement: The Issues That Matter for the Postal Employee

Are there unique aspects in a Federal Disability Retirement application, separate and distinct from non-Postal, Federal employees? Are there essential features, different approaches, and distinguishable paradigms to follow? Are the rules different, applied differently, approached separately, devised insufferably, when determined to involve Postal employees? Are there unique characteristics, either through the preparation delineated from the perspective of the Postal Federal Disability retirement applicant, or from the viewpoint of the U.S. Office of Personnel Management, which should be recognized before making that leap into the wide and deep chasm of submitting a Federal Disability Retirement application to OPM?

Certainly, many of the appellate decisions handed down by the U.S. Court of Appeals for the Federal Circuit, as well as by the U.S. Merit Systems Protection Board, involve U.S. Postal employees. But is the fact that a case involving a U.S. Postal employee enough to distinguish it from other Federal, non-Postal cases? Admittedly, decisions handed down by the Federal Courts or the MSPB do not openly acknowledge any conceptual distinction between Postal employees filing for Federal Disability Retirement benefits, from non-Postal, Federal employees in multiple other agencies; and all presume (correctly and accurately) that both Postal and non-Postal Federal employees fall into the same retirement systems (FERS, CSRS or CSRS-Offset), and as such, the identical legal criteria are applied, including:

  • Minimum of 18 months of Federal/Postal accrued service in order to file for Federal Disability Retirement (for CSRS, 5 years, which presumably already has been met)
  • Not separated for more than 1 year
  • Having a medical condition, such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s job
  • Both the Federal and Postal employee cannot be reassigned to a position at the same pay or grade, and further, cannot be accommodated such that the accommodation allows the Federal or Postal employee to perform all of the essential elements of the job.

Put more succinctly, while overt treatment of both Federal and Postal employees may appear identical, are there “issues” which differentiate between the two? Certainly, and again, accurately, the cases which impact Federal employees parallel Postal employees in their direct and residual effects, and vice versa. As all Federal employees and U.S. Postal employees fall under the same retirement systems, as well as concurrently identical disability retirement benefits, the question therefore must involve any indirect consequences for the U.S. Postal worker, as opposed to the overt residuals that portend both for Federal employees and U.S. Postal workers.

Internal mechanisms unique to the Postal employee can have an impact upon how the U.S. Office of Personnel Management views, analyzes and evaluates a Federal Disability Retirement application submitted by a U.S. Postal worker. Thus, for example, the National Reassessment Process (or as some designate the acronym as representing the term, “Program”) impacted all Postal employees throughout the nation, across all crafts, in reviewing all injured Postal employees serving in a limited duty capacity or other “temporary” light duty assignment, in an effort to ultimately “squeeze” the employee, shed the Postal organization of any and all Postal workers in less than “fully productive” capacity, and return them to the OWCP rolls. But temporary “light duty” assignments, or even “limited duty” assignments (whatever the conceptual differences are between the two), were deemed not to prevent a Federal or Postal employee from being eligible for Federal Disability Retirement benefits. The U.S. Office of Personnel Management fought hard against such a ruling, and indeed, in the beginning (at the MSPB level), prevailed in this viewpoint.

Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001), and further extended in Marino v. Office of Personnel Management, 243 F. 3d 1375 (Fed. Cir. 2001), is a landmark case in clarifying what constitutes an “accommodation” as opposed to a temporary measure of convenience – both for the Federal and Postal employee, as well as for the agency and the U.S. Postal Service. Until the nationwide interference by the NRP in “meddling” with a system that was working, the Postal Service was attempting to maintain the delicate balance between the Postal Service’s inherent need to remain productive and efficient on the one hand, and the rights of the Postal worker who had incurred a medical disability (the majority of which were OWCP-accepted, on-the-job injuries) but retained a desire to continue working. In recognizing the two sides of “needs” and “wants”, the Postal Service created temporary, limited and light-duty assignments. When the NRP began sending Postal workers home with summary dismissals accompanied by curt declarations somewhat in the manner of, “Based upon a review of your medical conditions and the availability of work in your craft, we have determined that the U.S. Postal Service is unable to find suitable work for you” – the remaining option for stranded Postal Workers was to file for Federal Disability Retirement.

The legal definition of an accommodation, for purposes of Federal Disability Retirement, is anything that an agency can do for the Federal or Postal employee which enables “him to perform the critical or essential duties of his official position.” (See, e.g., Selby v. OPM, 2006 MSPB 161, decided June 9, 2006). Thus, placing a Federal employee in a temporary position, or a “light duty” job, does not constitute an accommodation under the law, precisely because such an action on the part of the Agency is to merely sidestep or otherwise avoid the primary concern: such a Federal or Postal employee is still unable to perform all of the essential elements of the official position. For a long time, the issue of whether or not “light duty” constituted an accommodation was essentially an irrelevant one. Prior to the NRP, the Postal Service “accommodated” (using the term very loosely) its injured workers, by allowing for limited or light duty. With the advent of the NRP, the game-changing nature of their meddling became clear: Rid and shed, and let OPM determine whether or not the two-edged sword was sharp on both sides: the Postal Service has no work, anymore, but the Postal worker has been working for many years after incurring a medical condition. Would such a Postal worker still qualify for Federal Disability Retirement benefits?

Vestiges of outmoded thought processes still retain their residual effects well beyond the life-cycle of viability. It is said that hair follicles and toenails continue to grow beyond the certainty of death; perhaps it is merely a myth, or a misperception as dehydration occurs and retraction of surrounding skin leaves the impression of growth and extension. OPM has fought their fight, and lost. Postal workers are still being sent home with summary dismissals based upon “unavailability of work,” and left to fend for themselves while receiving zero-balance paystubs for years, sometimes decades. At some point, the Postal Worker realizes that OWCP is not a retirement system, and being sent to a “second-opinion” evaluation may mean the end of temporary-total Worker’s comp payments. Then what? Filing for Federal Disability Retirement is the option to pursue, but perhaps it has been years since a treating doctor has certified that a medical condition even exists. As there is a wide chasm between perception and reality, so we return to the original question: Are there overt “issues” which differentiate between treatment of Federal employees as opposed to Postal workers? It may well be that the issues remain fairly identical, but the circumstances which create the difficulties make for a distinguishing difference.

But then, that has always been the case with Postal employees – that “quasi-Federal worker” who works for the only Constitutionally-recognized agency, but somehow is relegated as the second-class citizen in the complex universe of Federal systems, and left to consider the administrative procedures governing Federal Disability Retirement benefits for both Postal and Federal non-Postal employees. In the end, it is the very uniqueness of how the non-Postal Federal sector views the Postal worker, which mandates a cautious approach to be taken when the Postal employee considers preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.

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

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

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

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

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

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

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

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

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

The Postal Worker and Federal Disability Retirement: Avoiding Temptation and Securing One’s Future

     The world around us imposes a level of complexity which requires the construction of a veil — for some, it is a light grey to partially shade from the brightness of reality; for others, it may be slightly darker.  Such veils are necessary for survival; however, when the mind requires a complete engulfing into fantasy, then it enters into the dangerous state of mental incapacity, and the somnolence of escape has gone too far.

                                                               — From, The Power of Mind and its Relation to the World

     Postal Workers are especially susceptible to the attractive somnolence of benefits received from the Office of Worker’s Compensation Programs, administered through the Department of Labor, under the purview of the Federal Employee’s Compensation Act.  In many ways, OWCP payments provide a false sense of security.  It may last for many years; indeed, one may even be forgotten while on OWCP rolls; and, but for the zero-balance paystubs which the U.S. Postal Service employee continues to receive on a bi-weekly basis, the U.S. Postal Worker maintains a comfortable income —  with dependents, 75% of one’s salary; without, 66 2/3% of one’s salary.  Life can seemingly be good; staying at home, being paid with regularity; until, of course, the inevitable troubles begin. 

     OWCP was never meant to be a retirement system.  While the U.S. Postal Service has been, of recent years, treating OWCP as the dumping ground for Postal Workers, and de facto treating it as a retirement system, the plain fact is that the Department of Labor scrutinizes all Worker’s Comp recipients with the ultimate view towards rehabilitation, and return to some sort of work.  Because of this, those who have been on OWCP but who fail to file for, and secure, Federal Disability Retirement benefits, face the danger of ultimately getting their benefits cut off with no viable alternative recourse.

     The counter to OWCP benefits – or, perhaps more appropriately described, the “complement” to OWCP  — is Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether the Postal Worker is under the Federal Employee’s Retirement System (FERS) or Civil Service Retirement System (CSRS).  The Postal Worker – and any Federal employee, for that matter, whether Postal or non-Postal —  needs to understand that OWCP is not a retirement system.  Further, whether under the so-called “National Reassessment Program” or some similar nonsense whereby the U.S. Postal Service attempts to hide behind a veneer and semblance of a respectable, thoughtful “program” of becoming more efficient, placing the injured Postal Worker on the rolls of OWCP is another way of stating the obvious:  We don’t want you anymore, and don’t bother trying to come back.

     This unsympathetic approach of the U.S. Postal Service in the past few years has been obvious:  once a Postal Worker becomes injured, the fallback position is to shed its rolls of anyone who is not “fully” productive, by trying to keep them on OWCP.  But the purpose of OWCP was never intended to be used as the dumping grounds for an organization which doesn’t want its injured employees.  Indeed, for decades, the coordinated efforts of all parties involved worked in a unified approach to return the injured Postal Worker to an acceptable level of productivity such that three goals were attained:

1.    First, the injured Postal Worker was compensated during a period of recuperation and rehabilitation, but always with a view that such compensation was temporary, limited, and for a specified period of time.
2.    Second, because of the nature of the jobs at the U.S. Postal Service, requiring the physical ability to engage in highly repetitive functions, with lifting capabilities, of reaching, bending, lifting, standing, walking, etc., throughout the day – that a modification of such physical requirements was necessary in order to “accommodate” any permanent injuries and restrictions resulting from the original injury to the U.S. Postal Worker.
3.    A cohesive and coordinated level of acceptable agreement – not what each party necessarily desires, but at least reaching a level of compromise and cooperation between the three parties involved:  For the Postal Worker, compensation for engaging in the arduous physical requirements of one of the most taxing jobs upon the architectural magnificence of the human body, where one has voluntarily subjected him/herself to the anatomical destruction and lifetime deterioration of one’s entire musculoskeletal integrity; for the Office of Worker’s Compensation Programs, an end to the rehabilitative period, and a return of the worker to the originating agency – the U.S. Postal Service; and for the U.S. Postal Service, the continuing productivity of its worker, albeit at a modified position, with some compromising on the extent and level of the physical requirements in a newly created position.

    But somewhere on the road to Damascus, something changed.  It wasn’t a bolt of lightening, and it wasn’t a sudden revelation from on high.  Rather, it was a unilateral decision that ultimately misdiagnosed the problem:  the inability of the U.S. Postal Service to remain in the financial black – of profitability – was not because of missteps in competing against FedEx or USPS by upper management; it wasn’t because of a top-heavy bureaucracy which over-compensated unproductive upper level managers and wasted funds on needless conferences and junkets; it wasn’t because of the failure of management to recognize the impending impact of email and other electronic forms of communication; no, the problem was determined to be the Postal Worker – the ones who actually did the work.

     The solution, according to the all-wise management of the U.S. Postal Service?  To get rid of all workers on light duty, modified duty, or otherwise all who were not fully productive; dump them onto the rolls of OWCP by declaring that a search of the U.S. Postal Service has resulted in the finding that there is no work available within the restrictions imposed by your medical conditions; and, oh, by the way, while OWCP was never meant to be a retirement system, that is effectively what we are asking of you – to go away.

     Yet, efficiency is a calculus in business which is defined in multifaceted ways, and nothing which the U.S. Postal Service, on the corporate level, has implemented, has proven to be an effective catalyst in promoting its interests.  What the U.S. Postal Service has done is to undermine the essence of the value of business capital, by destroying:

  • Loyalty – for, the manner in which any corporate entity treats its human capital, will be returned with the undying loyalty of its employees
  • A motivated workforce – as the ground level employees of the U.S. Postal Service witnessed the self-immolation of upper management by destroying the fabric of its workforce, the palpable reverberations of loss of energy continues, and will remain for decades hence, to be a problem
  • Fear – while effective for the short term, is never a basis for long-term business planning.  But power through unilateral imposition of decisions from on high, has been the primary tool of upper management in deciding to cut off the loyal workforce of those very Postal Workers who sacrificed their bodies in the course of doing their jobs.

     In such a climate, one must take one’s future into one’s own hands.  Waiting for the U.S. Postal Service to act in the best interests of the Postal Worker is an act of vacuous futility.  Federal Disability Retirement is the option which the U.S. Postal Worker should consider, precisely because it allows for a viable alternative for the future.  Waiting for a corporate entity which has already revealed its underlying motivations – of opting to forego fair treatment to the workers who do the actual day-to-day work which allows for a profitable venture; of deciding that short-term profits are more important than long-term growth of worker loyalty and a motivated workforce; of failing to see the value of the Postal Worker who has subjected himself to the human sacrifice of injury, despair, and a lifetime of debilitated medical conditions; to wait for such an entity to act in the best interests of the Postal Worker would indeed be a foolish endeavor.  Instead, what is necessary is to recognize that the future is now, and the now requires an affirmative step in moving forward beyond the U.S. Postal Service.

     Fortunately, for the U.S. Postal Worker, there is an option – that of preparing, formulating and filing for Federal Disability Retirement from the U.S. Office of Personnel Management, whether under FERS or CSRS.  The deceptive attractiveness of remaining on the rolls of OWCP must be recognized:  OWCP is not a retirement system, and was never intended for such.  For those Postal Workers who are still on the rolls of OWCP, and have not been separated from the rolls of the U.S. Postal Service, filing for Federal Disability Retirement should be considered with the recognition that OWCP will not last forever.  For those who have already been separated from service, one has only 12 months from the date of separation to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management. 

     Regardless of one’s employment status, today’s Postal Worker must always keep in mind that OWCP should be considered within the context of its intended benefit:  as a temporary compensatory program, and not as a retirement system.  To retire based upon a medical condition, the viable alternative is to file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management.

 

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

Postal Service’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If management deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

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