Tag Archives: Office of Workers’ Compensation Programs (OWCP)

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

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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.

Sincerely,

Robert R. McGill, Esquire
Postal Employee Medical Retirement Lawyer

 

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

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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 Postal Worker and Federal Disability Retirement Today: Longer Hours, More Repetitive Strain, and Less Loyalty from Above

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    Animals are by nature suspicious of strangers; it is only the human who, by a smile and a kind word, will embrace a stranger.  And, even if he is stabbed in the back, more often than not, he will attribute the pain to an accidental and excusable act of negligence; and so we are left with a gullible population of saints – or fools, depending upon one’s viewpoint. 

                                    — from, A Human Perspective

U.S. Postal employees have the most difficult of jobs:  the repetitive nature of the craft duties; the constant bending and lifting, placing an extraordinary strain upon the knees, neck and back; turning and twisting; casing of mail; pushing, pulling; performing maintenance; climbing ladders; entering and exiting a vehicle; walking and standing – the full gamut of such strain upon the musculoskeletal, joints and musculature; not even referring to the mental and emotional strains which are placed by time pressures, working cooperatively with coworkers; responding professionally to supervisors, unreasonable postmasters, irrational customers and all throughout, processing and delivering thousands upon tens of thousands of pieces of mail on a daily basis.

Yes, there is the specific compensation program – under the Federal Employees’ Compensation Act (FECA), administered through the Department of Labor (DOL), Office of Workers’ Compensation Programs (OWCP) – which is structured and set up precisely to address the injuries which are incurred as a result of such occupational-related medical conditions, whether directly (as in an injury occurring during the course of one’s day on the job) or as a hazard inherently related to the occupation itself (which should, theoretically, encapsulate such repetitive-type injuries, related to overuse and chronic medical conditions resulting from the combination of time, repetition and duration).   But more often than not, doctors are unable to specifically relate a particular medical condition to one’s occupation – arthritis does not, in all instances and for everyone, necessarily occur in people who engage in arduous repetitive tasks; Patellofemoral Syndrome does not always and in all cases manifest itself for Letter Carriers, Mail Handlers, etc.; and multiple other types of progressively debilitating medical conditions occur in the general population at large – just not in exponentially explosive multiples of occurrences which might lead one to conclude a causally-related factor.  But without the causality factor proven, what is the avenue remaining for a Postal Worker who can no longer perform one or more of the essential elements of his or her job?

The fact is that the Postal Worker today must work longer, harder, and under greater time constraints, supervision and oversight, with constant and incessant harassment from management, coworkers and customers, than anytime in the past.  The pay scale for Postal workers continues to lag behind and deepen, while the overuse and repetitive nature of the work only increases.  While newer mail processing machines are supposed to make way for greater efficiency, the muscles, joints, bones and spinal column of the Postal Worker must endure the identical strains and pressures, except at higher speeds, greater volume, and with added stress.

In a society which has seen the exponential explosion of psychiatric disabilities, including Major Depression, Anxiety, panic attacks, paranoia, schizophrenia, Bipolar disorder, and a myriad of attendant symptomatolgoies, the high pressure, high technology world without conducive interpersonal interaction and coordination between management, mid-level supervisors and the craft employees, only results in the greater devastation of the physical and psychiatric condition of today’s Postal Worker.

Federal Disability Retirement benefits, whether under FERS or CSRS, is a disability annuity which exists for the Postal employee, precisely because the particular job of the Postal Employee is one which is susceptible to a medical condition or disability.   Of course, OWCP/DOL is a compensation program which is there for the Postal employee, also, but the whole point under FECA is to try and return the injured employee back to his or her job.  But in recent years, several factors have interceded to make the Worker’s Compensation benefit an irrelevancy, if not a cruel irony played upon the Postal Worker by the gods of fate:  under the National Reassessment Program (NRP), the U.S. Postal Service no longer wants the rehabilitated Postal Worker to come back, and further, the Department of labor doesn’t want to have to keep paying the injured Postal Worker for injuries which are supposedly preventing the Postal Worker from performing all of the essential elements of his or her job.

The process of filing for, and retaining the benefits of, Federal Worker’s Compensation benefits, is one replete with constant battles with the Department of Labor.   A single refusal to do what OWCP mandates the Postal Worker to do can result in a termination of benefits.  The disabled Postal Worker who is on the OWCP rolls is in a state of perpetual limbo – for, while the benefit itself pays a fairly decent rate (75% for those with dependents; 66 2/3% for those without) and is not taxed, one cannot work at another job while receiving such benefits.   And then there is the danger of prosecution for defrauding the Federal Government – backed by numerous cases in which hundreds of hours of videotaping edited down to a couple of minutes, showing a person performing some kind of physical task which is medically restricted.  When faced with the threat of considerable jail time, a plea bargain involving loss of benefits, forfeiture of future claims, the high cost of hiring a defense attorney, etc., is the normal course of events for the Postal Worker.

This is not only a tough job, but an unsympathetic world.  Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is always an option for the Postal employee.  While the National Reassessment Program continues to send people home by asserting an “unavailability of work based upon a thorough review of the medical condition and the inability of the U.S. Postal Service to accommodate such medical conditions,” the attempt to throw all Postal Workers who are not able to perform 100% of the essential elements of the position onto the OWCP rolls – while it may be an effective way for the U.S. Postal Service to shed its payroll of all injured employees – is not a road to the future for the Craft Employee.

Federal Disability Retirement allows the Postal Worker two great benefits which OWCP will not offer:  A.  Flexibility to engage in another occupation while receiving a disability retirement annuity, and B.  An ability to build for the future.  Yes, OWCP benefits pays more.  Yes, OWCP benefits are non-taxable.  But if the Postal Worker of today is thinking about building a future for tomorrow, the world of limbo, of perpetual fear of someone watching (or videotaping) you; and being fearful of having some second or third opinion doctor suddenly determine that you are perfectly fit to return to full duty, is simply not in the best interests for the long term.

A Federal Disability Retirement annuity will pay 60% of the average of one’s highest three consecutive years of service for the first year, then 40% every year thereafter, until age 62.  During the time that one is receiving a Federal Disability Retirement annuity, the Postal Worker can go out and make up to 80% of what one’s former position currently pays.  Such flexibility is a foundation for a future.  Moreover, it will allow for the needed period of rehabilitative convalescence, while considering alternative options for the future.

Sincerely,

Robert R. McGill, Esquire
Postal Employee Disability Retirement Lawyer

 

Postal Employees, FERS & CSRS Disability Retirement, the National Reassessment Process, and a Sense of Betrayal

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     Is loyalty a man-made convention?  Is it merely the creation of lords and kings to fool the populace into supporting a mirage?  For, cannot loyalty be purchased?  Cannot the powerful grant enough gratuities to garner the loyalty of the guardsmen?  Ah, but will such loyalty last, or will it wait in the quiet of nightfall to see from whom a better price might be paid?  Such loyalty shifts like the sands of summer.  A convention built upon a convention will indeed crumble.  Loyalty must be built upon character, and character upon the integrity and reputation of a man over his entire lifetime.

    — From, Kings and Noblemen

 

     Having spoken to thousands of Postal employees over the past decade, the common thread which runs throughout the conversations concerning preparing and filing a Federal Disability Retirement application under FERS & CSRS, is an undertone of resignation, resentment and realization towards a corporate culture of disloyalty and distrust.  The Postal Worker today is expected to be hyper-efficient, to work and produce more within a restrictively prescribed timeframe, to perform with optimal productivity, and concurrently to maintain a resonance of familiarity, small-town folksiness, and a service-oriented courteousness in communities across the United States. 

     In a competitive economy which has had to weather the advent of faxes, emails, attachments to emails, etc.; where Federal and State bureaucracies have expressed long-range goals to attain a “paperless” system of administrative processing; and where budget cuts and complaints about the public sector wasteland of taxpayer funds has reached a critical mass of citizen revolt; within the context of such economic, financial, technological and bureaucratic turmoil, the U.S. Postal Service has been expected to remain “competitive”.  But “competitive” can be interpreted in different ways.  Unfortunately, in the prevailing corporate culture, it is always gauged and measured in the short term, based upon quarterly financial projections.  What happens 5 or 10 years hence is an irrelevancy; whether the U.S. Postal Service posts a profit or a loss in the next quarter is the quantifying meter of success or failure.

     Management often gives lip service about how they benefit from “listening” to the workers that constitute the backbone of the U.S. Postal Service – the Letter Carriers, Clerks, Maintenance workers, Mechanics, and even some mid-level supervisors.  But listening without resultant actions is merely an attitude of patronizing vacuity.  Listening must be purposive and purposeful; and if the National Reassessment Process is the best that the U.S. Postal Service can come up with as the solution to maintain the corporate competitive edge in this complex, technological universe, then “listening” had absolutely no positive impact upon Management.

     The National Reassessment Process has been a devastating disaster – both for those affected, and upon the viability and survival of the U.S. Postal Service.  America’s binary strength and weakness has always been its ability to move beyond the present crisis, and to adapt quickly to the vicissitudes of economic turmoil.  But the flip side is that corporations, bureaucracies and organizations look to the short term as the metric for success; long-term planning results in a future-oriented view for the survival of the company.  One only needs to, by way of metaphor and analogy, look at how the architecture of churches has evolved over the past 2 centuries.  Once, they were built to last for centuries; now, they are constructed to survive the present lifespan.

     The U.S. Postal Service is on a path of progressive deterioration and self-destruction.  The National Reassessment Process is simply a symptom and indicator of that destruction.  By openly discarding all Postal workers with medical conditions, disabilities and physical limitations, by asserting that there is no identifiable work available for such workers, and to expect all such workers to file for and be placed on the compensation rolls of the Office of Worker’s Compensation Programs, they have accomplished two (2) goals:  First, they have succeeded in disheartening the entire workforce by declaring that loyalty to the organization is no longer a consideration of employment, and Second, that there is no long-term plan for the Postal Service to survive in this economy, and only the short-term, quarterly profitability margins will be relevant. 

     For, ultimately, the long-term viability of an organization is dependent upon the loyalty of its workforce.  Loyalty must be fostered and groomed.  It is, moreover, a tenuous and sensitive element of a business culture – one of those intangible business assets which cannot be quantified by quarterly profit reports, but through the economic indicators of productivity measures, over several years.  By undermining the essence of loyalty – of how an organization treats its employees both during profitable times, as well as through trying economic downturns, and especially how it attempts to meet its employee obligations when a worker gets injured or suffers from a medical condition – the U.S. Postal Service has effectively spelled out its own future.

     Fortunately, all Postal workers fall under the Federal system of FERS (Federal Employees Retirement System) or CSRS (Civil Service Retirement System), which includes Federal Disability Retirement benefits.  While the National Reassessment Process attempts to force all Postal Workers to file for the Department of Labor, Office of Worker’s Compensation Program benefits, the problem with OWCP is that it is not a retirement system, and will not last forever.  As has been stated previously on many occasions, OWCP is a system of compensation intended to rehabilitate the Postal employee for a prescribed, limited amount of time, on a temporary basis, in order to return the Postal Worker back to its formerly productive job.  During the time that a Postal employee is receiving Temporary Total Disability, he or she cannot work at another job, and earn any wages – even if the worker wanted to. 

     Federal Disability Retirement benefits is a viable alternative to OWCP benefits – but an alternative which does not necessarily need to be viewed as a strict dichotomy (i.e., either Worker’s Comp or Federal Disability Retirement benefits), but a benefit which can be seen as a “back-up” system if and when OWCP benefits are terminated.  If a Postal Worker (or any Federal worker, for that matter), suffers from a medical condition which will last a minimum of 12 months, and the medical condition prevents one from performing one or more of the essential elements of one’s job, then it is time to file for Federal Disability Retirement benefits under FERS or CSRS.  For the Postal Worker who is, or will shortly, fall under the National Reassessment Process, the “writing on the wall” is indeed already in print:  The U.S. Postal Service doesn’t have a future for you, and it is time to consider filing for, and obtaining, Federal Disability Retirement benefits under FERS or CSRS.  The future is now – for the Postal Service employee, to think of another career; for the corporate culture of the U.S. Postal Service, to remain in red ink for the foreseeable future.

Federal Disability Retirement benefits for Postal Employees: The OWCP Option versus OPM

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The National Reassessment Program’s (NRP) primary option for Postal employees who are not “fully productive” (interpretation:  anyone who cannot perform the full panoply of all of the essential elements of one’s job) is for the Postal employee to file for OWCP benefits.  A letter from the NRP will allegedly state that they have searched for all available work and have concluded that the Postal Service is unable to accommodate the Postal employee based upon the medical conditions identified.  The option:  file for benefits from the Department of Labor, Officer of Workers’ Compensation Programs.

Complacency allows for a period of peacefulness and peace of mind.  The operative concept (and critical juncture of concern) is that such peace of mind exists “for a period” of time.  OWCP compensation – designed as a mechanism to allow for a Postal employee to recuperate from an injury or a medical condition incurred while “on the job” or during the course of performing his or her occupational duties – is primarily meant for a temporary period of time.  Thus, TTD (temporary total disability) payments are made to Postal employees during the time of medical treatment and temporary disability, with the goal being that the Postal employee will return to work.  Further, compensation for the permanent disability suffered (identified as a “scheduled award”) is determined once a Postal employee has reached “Maximum Medical Improvement”, and when a percentage disability rating can be ascribed to an individual.  The paradigm of OWCP is therefore based upon the projected conceptual framework that it is temporary, compensatory for a set period of time, in order to allow for the eventual return of a Postal worker to his or her craft duties.

The reality of the situation, of course, is that many Postal workers in every craft imaginable – Letter Carriers (Rural or City), Mail Handlers, Mail Processing Clerks, Maintenance Workers, Sales, Service & Distribution Clerks, etc. – can be placed (and have been placed) on OWCP rolls and often “forgotten” for years, and sometimes decades (note the plural).  Such long-term payments, generous by some standards (75% of the gross salary for those with dependents; 66 2/3% for those without), can lead to a sense of complacency and comfort.

The problem with complacency and comfort, however, is that a Postal Worker can remain on the rolls of OWCP, receive the “temporary total disability” payments for years and years, and suddenly be informed that he or she is no longer disabled, has recovered, and therefore is no longer entitled to OWCP compensation. Perhaps the Postal Worker is directed to undergo an “Independent Medical Examination” – identified, compensated by, and directed to, by the Department of Labor, Office of Workers’ Compensation Programs – to determine the feasibility of going back to work, and to establish the extent of the disability (if any).  Suddenly, the Postal worker who has enjoyed the complacency of being on the OWCP rolls for these many years sees a sudden termination of benefits.  Yes, there are appeal procedures.  Yes, there are recourses and the right to have a “referee doctor” make a further determination.  But after months of such appeals (during which time the former Postal Worker has received no compensation), while reinstatement of TTD benefits may become a reality, one often realizes that OWCP is not a permanent solution – precisely because it was never designed or meant to be such.

The further option that every Postal Worker must consider, of course, is to prepare, formulate, and file for Post Office Disability Retirement benefits under either FERS or CSRS, from the Office of Personnel Management.  This can be done concurrently with receiving and being on the rolls of OWCP – by filing for Federal Disability Retirement benefits, then opting to stay on OWCP and placing the approved Federal Disability Retirement annuity into an “inactive” status – as a back-up system in the event of termination of OWCP benefits.

The problem of complacency in receiving OWCP benefits is that there are too many Postal Workers who are unaware of the distinction between OWCP and OPM Disability Retirement.  The mere fact that OPM Disability Retirement pays less than OWCP benefits is not a reason not to file – if not to replace OWCP benefits, then to at least obtain them as a back-up to OWCP.  Failing to file for the benefits in a timely manner results in foregoing – forever -the right to file for such benefits.  At some point, Postal Workers on the rolls of OWCP become “separated from Federal Service” – meaning thereby that the Postal Service takes the Postal Worker off from the rolls, stops sending the “0-balance” paystubs, and issues a PS Form 50 of generating an administrative personnel action separating the Postal employee from the U.S. Postal Service and the Federal Service.  At that point of separation, the Postal Worker has 1-year to file for Federal Disability Retirement benefits under either FERS or CSRS, from the Office of Personnel Management.  Failure to file within that 1-year timeframe results in abdicating a right to ever file.  Then, many years later, when that letter arrives from the Department of Labor directing the Postal Worker to undergo an “Independent Medical Examination” by a doctor who seemingly is a Fellow and Member of every qualifying medical association, and is compensated by OWCP for his time and energy – the Postal Worker’s concerns about possible termination of benefits will not only become a reality, but a potential financial crisis.

Further, if a Postal Worker wants to work at another job, one who is on OWCP is unable to do so.  On the other hand, those who receive a Federal Disability Retirement annuity from the Office of Personnel Management are, under the law, allowed to go out and make up to 80% of what one’s former Postal job currently pays – on top of the Federal Disability Retirement annuity one receives.  Thus, while OWCP payments often engender complacency, there is a built-in incentive to the Postal Worker to prepare, formulate, and file for Federal Disability Retirement benefits from the Office of Personnel Management – and then to start a second career, while having the time on disability retirement count towards the total number of years of Federal Service, so that when the disability annuity is recalculated at age 62 and converted to regular retirement, the time on disability retirement is counted.

These are all factors which must be thoughtfully considered.  Whatever the decision made, a Postal employee who fails to understand the distinctions between OWCP and OPM Disability Retirement may rue the day sometime in the future – far or near, one never knows based upon the capricious whim of the Department of Labor, Office of Workers’ Compensation Programs – when that termination letter arrives in the mailbox.  All options should be considered, and preparing, formulating and filing for OPM Disability Retirement benefits is an option which should not only be “considered”, but concretely filed for.

 

The U.S. Postal Service and Federal Disability Retirement: The National Reassessment Program, the Agency and the Worker

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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 U.S. Postal Disability Retirement: OWCP, SSD, NRP, Etc.

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Nothing works in a vacuum.  Issues surround medical disabilities, the Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps.

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the U.S. Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark.

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire