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.

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