Reconsiderations and Other Medical Matters during Your USPS Disability Retirement Process

Postal employees who give their lives at the expense of their bodies, and who must file for Federal Disability Retirement benefits through the U.S. Office of Personnel Management (with a waylay station via the H.R. Shared Service Office in Greensboro, North Carolina), may encounter a First Stage denial of the application, and wonder: Why? The job itself is so self-evidently strenuous; perhaps (the Craft Employee may query with a touch of sarcasm) the OPM “Administrative Specialist” would like to try and sort mail for a day, or walk the 9-plus mile daily route to deliver mail, or to twist, turn, drive and reach like a Rural Carrier must on a daily basis; all with a shoulder gone bad, a back which requires daily ingestion of pain killers, or working with wrist splints which fail to stabilize the necessity of restricting the dexterous use of ligaments bent in directions defying nature; but there, plain as the light of day, is a letter stating that the “medical evidence fails to show that your medical condition prevents you from performing efficient service” for the U.S. Postal Service, despite the fact that they sent you home with an admonition that there are no jobs available within the medical restrictions which your doctors have identified and imposed.

What? And so, in quick succession, the two primary questions of puzzlement, Why and What. For the Postal Worker who has done everything to extend the duration of one’s employment, imposing silence as replacement for pain until the severity of the radiating discomfort and tingling, numbness and limitation of flexion and movement, until the extent and severity could no longer be muffled, it is tantamount to an injustice plastered in disbelief.

The injured or ill Postal Worker must understand and accept the stark conceptual distinction: Pain is not the same in the human body as it is on paper. There is a vast difference, and a chasm of inseparable proportions, between the theoretical and the pragmatic. The history of one’s progressive deterioration can never be adequately conveyed or narratively delineated in an accurate, reflective manner; for, the timeline of debilitation, of the days, months and years, and sometimes decades, of slow and incremental destruction of the human body; or the subtleties of damage to the human psyche where Major Depression, Anxiety, and uncontrollable panic attacks, where once it began as a nagging feeling of tingling and sweat, but today into a paralyzing attack of chest constriction and inability to think, focus or remember; the medical condition that once was a pinprick in youth, has developed into a crisis of the body and mind, and the question when confronted in terms of filing for Federal OPM Disability Retirement benefits is, How does one persuasively convey one’s medical condition into being eligible for Federal Disability Retirement?

That is why, when a denial is issued from the U.S. Office of Personnel Management, puzzlement is quickly followed by a sense of panic. For, the person who has the epistemological privilege of experiencing the progressively deteriorating pain, or loss of mental acuity and cognitive dysfunctions, is not the same person who is represented in the paper presentation of a Postal Service Disability Retirement application submitted to the U.S. Office of Personnel Management. The chasm between the experiential “I” of the Postal Worker who began a career in good health, in full control of his or her physical and cognitive faculties, and over the years sensed the incremental deterioration and loss of both, as opposed to the skeletal identity of the person described in the applicant’s Statement of Disability as delineated on SF 3112A, is the difference between the depth of human complexity and the superficial attempt at capturing a lifetime of accomplishments and the negation of those achievements within the constrained space provided on a government form.

Then follows the ultimate act of futility: attempting to decipher the verbiage as to the reasons for the denial of one’s OPM Disability Retirement application. There are OPM Representatives who provide long and laboriously detailed expositions as to the application of the legal criteria in denying a Federal Disability Retirement application; and others who give short-shrift with de minimis attention. Somehow, the lengthier ones provide a semblance and appearance of conveying greater weight and gravity; the shorter ones leave one scratching one’s head in utter disbelief and puzzlement. In either case, the initial inclination and reaction is for the U.S. Postal Worker to immediately take notes, jot down a thousand rebutting comments and stream-of-consciousness thoughts (sort of like an initial draft of James Joyce’s Ulysses), and finally come to the devastating conclusion that all such attempts are tantamount to firing a shotgun at a flock of geese a hundred yards away: the pellets may rain upon them, but with ineffective power and sparse projection.

In the end, what one must realize when a Federal Disability Retirement application has been rejected by the U.S. Office of Personnel Management, whether one is under FERS, CSRS or CSRS Offset, is that the foundational presentation of persuasion failed in the essential elements of one’s case. The “Reconsideration” phase of a Federal Disability Retirement application is like the purgatory of a complex administrative process, the “Middle Earth” of a Tolkien fantasy. No longer in the land of initial persuasion and primary argumentation; but caught at the precipice of potentially being denied again, which would result in the necessity of filing an appeal to the U.S. Merit Systems Protection Board. One presumes that, when the initial application was filed, that you gave your “best shot” as far as medical documentation goes. What more is needed? What additional medical documentation would suffice to satisfy and effectively rebut the contesting and adversarial remarks of the OPM Denial Letter? When the body of the “discussion” section containing the underlying basis and reasoning for denying one’s USPS Disability Retirement claim consists in merely pointing out the medical evidence already submitted, then stating in bald conclusory form: “Your medical evidence fails to show that you are disabled such that you are eligible for Disability Retirement…” What is it that OPM is claiming? What further is it that they need?

Clarity of reasoning is difficult to arrive at. Templates rarely suffice to address the individual uniqueness of each Federal OPM Disability Retirement case, but templates of reasoning comprise the majority of what an OPM Denial Letter consists. It often reads like a “cut and paste” job from some other denial letter, and indeed, aside from some peripheral references to individuated medical conditions and identifying some doctors from the person’s file, that is precisely what constitutes an OPM Denial Letter.

But be not deceived, nor down in the dumps; it may be that the medical documentation was indeed sufficient; and instead of wasting one’s energy and time in attempting to decipher the content of an OPM Denial Letter, it is often useful to go back and reiterate the basics of a Federal Disability Retirement case. Three primary points, whether at the Initial Stage of an OPM Disability Retirement application, or at the Reconsideration Stage after an initial denial, must and should always be revisited: A. What are the medical conditions and the symptoms? B. How do the medical conditions prevent the Postal employee from performing one or more of the essential elements of one’s job? And C., Could such medical conditions be accommodated such that the Postal employee could continue to perform all of the essential elements of the job?

The beginning point is often the necessary endpoint. What an OPM Denial letter often does, however, is to obfuscate, confuse, and knock off of the proverbial tracks, the necessary proof needed to meet the preponderance of the evidence test. It may not be rocket science, but it is also not a simple matter to prove. Ultimately, to meet the standard of proof in winning a Federal Disability Retirement application from the U.S. Office of Personnel Management, whether at the Initial Stage of the process or just having received an initial Denial from OPM, going “back to the basics” is always the target to pursue, and that means making sure that one’s treating doctor is supportive of the Federal Disability Retirement. All else naturally flows and follows from there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Postal Service’s Actions Can Sometimes Be To Your Advantage

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

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

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

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

Sincerely,

Robert R. McGill, Esquire

The Initial USPS Disability Process

Many people get confused when they first consult with an attorney about disability retirement benefits for Postal Workers.  Indeed, before consulting with an attorney, an individual who is faced with a medical condition which (1) is beginning to impact one’s ability to perform one or more of the essential elements of one’s position and (2) will likely last at least a year — such an individual should first take the time to research various websites to “get the facts” about USPS Disability Retirement.

I have had many individuals tell me that they didn’t even know that such a benefit existed; that when they were separated from their U.S. Postal Service, the employee was never informed that he or she could file for Federal Disability Retirement.  Unfortunately, ignorance of the law is not a valid excuse; if you don’t file for disability retirement benefits under FERS or CSRS with the Office of Personnel Management within one (1) year of being separated from service with the United States Postal Service, you will have lost your right to file — forever.

Furthermore, it is dangerous to “take comfort” in the fact that the Department of Labor/The Office of Worker’s Compensation Programs deemed you to be 100% disabled.  That “100%” disabled status may last a lifetime, or it may last only so long as your particular OWCP caseworker is working on your case.  The next caseworker may take it upon him or herself and decide that, Well, no, perhaps you are not 100% disabled, and perhaps sending you to a “Second Opinion” doctor (who, it just so happens, is receiving about 95% of his or her income expounding such “second opinions”) will result in a medical finding that you miraculously “recovered” and are able to go back to work.  Benefits cut off.  You waited a year or more after being separated from the Postal Service to find this out, without having filed for Federal Disability Retirement benefits.  You are then, unfortunately, “out of luck”.  Make sure that you file in a timely manner; make sure that you do not take comfort in being on OWCP rolls.  Don’t forget –  Postal or Federal Disability Retirement is an annuity that you can rely upon as a “base income” for your financial security.

Sincerely,

Robert R. McGill, Esquire