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

    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 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.

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

     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

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 Postal Treadmill: Taking the option of USPS Disability Retirement

For many years, the U.S. Postal Service has allowed its workers to remain productive by fashioning limited duty, modified positions for injured employees who were unable to perform all of the essential elements of the job.  To a great extent, those prior years of apparent accommodation (“apparent”, because such modified job offers were never legally sufficient accommodations) were analogous to a treadmill:  So long as the speed of the treadmill allowed for the Postal Worker to perform at his or her pace, consistent with the medical restrictions as allowed for in a “Modified Job Offer” or a “Limited Duty Job” as crafted in cooperation between (usually) three parties – the Postal Worker, the U.S. Postal Service, and the Department of Labor, Office of Worker’s Compensation – the injured Postal Worker was able to perform his or her job well, and remain productive.

Times have changed.

With the accelerated initiation and imposition of the National Reassessment Program, the Postal Treadmill has rapidly increased to exponential speeds, to the extent that most Postal Workers who have occupied a “Modified” or “Light Duty” position are asked to get off the working treadmill completely, and go home.  While filing for OWCP benefits is an option, such payments are tenuous and temporary at best, and at worst, will be denied. While Worker’s Compensation benefits pay well, the issue for the Postal Worker sent home because the U.S. Postal Service has found that a “search of its available positions” all of a sudden has resulted in a failure to find “available work” for the injured Postal Worker, is whether or not such a Postal Worker may qualify for Federal Disability Retirement benefits under FERS or CSRS.

The short answer to that question is, “Yes, in all likelihood”.

The Postal Worker needs to understand that, even during the time that he or she was working at a “Modified Job”, or a “Limited Duty”, that same Postal Worker was always qualified and eligible for Federal Disability Retirement under FERS or CSRS.

How could this be?

A person who is working in a “temporary” light duty position was never technically  “reassigned” to a new permanent position.   That same Postal Worker continued to remain in the same official job-slot, as reflected by the PS Form 50.  As such, the “Modified” or “Light Duty” job was always just a fiction.  It was a “made-up” position.  The fact that under the National Reassessment Program, the U.S. Postal Service could all of a sudden do away with all such positions, only proves the point:  There never existed a “Modified” or “Light Duty” position; it was always the same position, but on a separate piece of paper, the three parties involved – the Postal Worker, the Department of Labor/Office of Worker’s Compensation, and the U.S. Postal Service – simply “made up” the fictional position.

There is legal precedent already in place which establishes that a Postal Worker who occupied a modified or light-duty position is nevertheless eligible for Federal Disability Retirement benefits.  It was addressed by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001) — a case which I have previously discussed on many occasions, but one which is important to go over again.  In the case of Bracey, the Federal Circuit Court outlined the applicable provisions governing disability retirement, saying that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

It is this last point (Number 3) which is important to ponder and consider.  For, if the Agency is unable to accommodate the Postal Worker, and being placed in a “Modified” or “Light Duty” position does not constitute an “accommodation” (because there never was such a position to begin with), then the Postal Worker would be eligible for Federal Disability Retirement benefits under FERS or CSRS (assuming that all other criteria of eligibility are met).

Let us consider this further.  In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, in order for such reassignment to be an “accommodation”.  The Court went on to say:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position.  A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.”  Id. at p. 1359
Then, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.”  Id. at 1360.

This is precisely what has occurred to the Postal Worker on the treadmill all of these many years – of NOT being reassigned to a new permanent position, but merely working in a temporary, light duty position. Furthermore, for the Postal Worker, the case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343,  10, 12-14 (2003) clarifies it even more, 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.” Id.,  14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id.

Sound familiar?  Sound like the Postal Worker who has been sent home under the National Reassessment Program?  For the Postal Worker who has been occupying a Modified or Light Duty position all of these many years, you may have thought that you were in an “official” position.  If that were the case, then that same Postal Worker would not be able to be sent home today.  The reality is that no such position ever existed.  The Postal Worker was never in an “official” position, other than the position which he or she always occupied:  that position which required you to perform all of the essential elements of a Clerk, a Letter Carrier, a Rural Carrier, a Mail Processing Clerk, a Distribution Clerk, a Mail Handler, an Electronic Technician, a Maintenance worker, a Sales, Service & Distribution Clerk, etc.

But since the Postal Worker on the daily treadmill was never able to perform all of the essential elements of the “official position”, it logically follows that the Postal Worker was always eligible – even throughout the entire time of working in a “Modified” or “Light Duty” position – to file for Federal Disability Retirement under FERS or CSRS.  Thus, for the Postal Worker who has been sent home, or is in danger of being sent home, because of the National Reassessment Program, a viable option to consider is to file for Federal Disability Retirement under FERS or CSRS.  You were always eligible; you just didn’t know it.