Postal Medical Retirement: Understanding the Basics of a FERS Disability Application

Posted on July 21, 2022 by Robert McGill

Success is often achieved as a result of multiple factors: Opportunities presented, recognized and acted upon; knowledge enough to take advantage of; the ability to see what others have failed to appreciate; the effective utilization of knowledge. Within the universe of knowledge, it is often stated that people who amass enormous wealth are not necessarily “smarter” than your average Joe (for whatever reason, “Joe” has been the commonplace proper name to designate Everyman; but for those who may be offended as to its gender non-neutrality, you may insert, “Josephine”, as well), but for whatever reason, can pinpoint commercial opportunities better than others. In short, when knowledge is applied for specific means, those who are “successful” are able to extrapolate knowledge relevant to the issue at hand, and discard irrelevant and extraneous material efficiently.

Federal Disability Retirement benefits, under FERS (Rhetorical question: Are there any Federal or Postal employees under the old system — CSRS — anymore?) has a long history of MSPB decisions of precedence, as well as Federal Circuit Court of Appeals opinions, which have cumulatively modified, altered, clarified and strengthened the benefit for Federal and Postal employees. Going through the compendium of complex case-law opinions, however, without first understanding the “basics” of its origination based upon statutory authority, can lead one astray by unduly focusing upon those “secondary” arsenal of legal weapons — like VA Disability Ratings; removal for one’s medical inability to perform the job, or even from “excessive absences” but still being able to argue for the Bruner Presumption; the impact of an SSDI approval; and other such corollary legal precedents which can be argued. Thus, it is always important to begin with the “basics”, then to build one’s foundation on the originally-established statutory authority. And so, let us begin with that which is outlined in 5 C.F.R. (Code of Federal Regulations), part 844, where it states in relevant part:

Except as provided in paragraph (c) of this section, an individual must meet the following requirements in order to receive a disability annuity:

(1) The individual must have completed at least 18 months of civilian service that is creditable under FERS, as defined in § 842.304 of this chapter;

Thus, the minimum eligibility requirement mandates 18 months of civilian service. Applicants should be advised, however, that the 18-month time of service — while meeting the minimum eligibility requirement — will not translate into a “full” disability retirement annuity. This is because the calculations involved in determining the annuity amount will be based upon the “average of the highest 3-years (36 month)” of consecutive service, and therefore, the annuity will be determined by a divisor of 3, and not by 1.5. This is important, because the 60% rate for the first year, followed by the 40% rate of annuity in the subsequent years until one reaches the age of 62 (at which point the annuity becomes recalculated based upon the total number of years of one’s service, including the time that one is on disability retirement), will be a lower amount from that of a person who has had at least 36 months of Federal Service.

The statute / regulation then goes on to state:

(2) The individual must, while employed in a position subject to FERS, have become disabled because of a medical condition, resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position;

Thus, there is a 4-part criteria, or “test”, in determining eligibility for Federal or Postal Disability Retirement, beyond merely acquiring 18 months of Federal Service. The picture that needs to be painted for every individual contemplating filing a Federal Disability Retirement application, is this: There is a wall. That wall is entitled, “The U.S. Office of Personnel Management”. On the left side of the wall are people who say things like, “It is difficult”; “I am struggling”; “I am having a difficult time doing my job”. On the right side of the wall are people who simply say, “I cannot do my job.” Most people are on the left side of the wall. How do I, as a Postal Disability Attorney, help lift you from the left side of the wall over to the right side of the wall? So, the question must be asked to the potential client: Do you have any deficiencies in performance, conduct or attendance? If you do not, then OPM will likely argue as follows: “Your agency says that you are doing a great job. So what’s the problem?” If you cannot answer that question, then we will go to the “Fourth” criteria — that of “incompatibility”. And that goes to the logical next question: Do you have a doctor who will support your case? If you do, then you will likely be able to be lifted up from the left side of the wall, to the right side of the wall.

And the Statute goes on with:

(3) The disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed;

Note that the regulation does NOT state that the medical condition “must have” continued for at least one year, and yet, based upon phone calls and queries made to this author/attorney, there has been some fairly prevalent and persistent confusion about this requirement. So, a note of clarity for those contemplating preparing an effective Federal/Postal Disability Retirement application: It is merely an expectation that the medical condition will continue for at least 12 months from the date the application for Federal Disability Retirement is filed, and NOT that the medical condition must have already lasted for 12 months, which is the important point to take away from this. How does one comply with, and establish facts such that OPM can acceptably ascertain compliance to this section? Most doctors, after a period of treatment — or, in the case of an independent evaluation by a qualified medical specialist, upon a thorough review of the available treatment records — can provide a prognosis based upon the nature, extent, severity and chronicity of the medical condition, as to the length of expected time of continuing disability.

(4) Accommodation of the disabling medical condition in the position held must be unreasonable; and

Another way to put it is: The Agency must not be able to reasonably accommodate the medical condition. Further, a legally-viable accommodation in a Federal Disability Retirement case cannot be temporary or merely resulting from a Supervisor allowing for “light duty” by informally excluding some of the essential duties of a position. While there is nothing wrong when an Agency/Supervisor allows for temporary light duty, such a change in status — whether formally or informally — does not preclude a Federal or Postal worker from proceeding with a Federal Disability Retirement filing.

(5) The individual must not have declined an offer of reassignment to a vacant position

Generally, an offer of a reassignment must be at the same pay or grade, and within a reasonable commuting area. Keep in mind, however, that just because an offer for a reassignment is made, if the individual is unable to medically perform such an offered “other” position, then a declination of such an offer will not necessarily preclude moving forward with a Federal Disability Retirement application. In the end, it is very rare that a Federal Agency (and certainly, for the Postal Service, the term “never” applies in almost every case) can find a suitable reassignment which undermines or precludes moving forward on a Federal Disability Retirement application under FERS.

(b) The employing agency must consider a disability applicant for reassignment to any vacant position. The agency must certify to the Office of Personnel Management (OPM) either that there is no vacant position or that, although it made no offer of reassignment, it considered the individual for a vacant position. If an agency offers a reassignment and the individual declines the offer, the individual may appeal the agency’s determination that the individual is not disabled for the position in question to the Merit Systems Protection Board under 5 U.S.C. 7701.

Again — this is a rare occurrence. Rare, primarily because of practical reasons: An individual who has a medical condition impacting upon one’s Federal or Postal position will likely not be able to work in another position at the same pay or grade, precisely because the medical condition itself will likely impact the reassignment job in a similar way. If a debilitating back condition prevents the Federal employee from performing a cognitive-intensive, sedentary job, reassigning that person to another administrative position is not going to solve the problem.

The above-explication of the statutory “basics” undergirding the Federal Disability Retirement process is meant to provide a rough outline of the statutory basis for eligibility purposes. As every case in a Federal Disability Retirement application is unique, the specific facts of each case must be evaluated, analyzed and assessed based upon those particular facts, and applied to the nuances inherent both in the statute and regulations, as well as the current case-laws which apply. Thus, we start with the “basics”; go on to the more complex expansion of case-law precedents; then, after a thorough “vetting”, decide as to whether an individual case is “viable” enough to proceed with preparing, formulating and filing an effective Federal Disability Retirement application under FERS, with the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire
FERS Disability Retirement Attorney

Photo Credit: Arthritis image by PeachMoon from Pixabay

The Postal Service and Federal Disability Retirement: Changing the Goalposts

Posted on October 22, 2021 by Robert McGill

With almost half a million employees and another hundred thousand or more non-career employees, the U.S. Postal Service is constantly being asked to take on more of the nation’s massive mail-transport efforts, with fewer employees, tools and equipment to work with. The burden is always placed upon the worker; and the language applied to assuage the image never considers the needs of the worker; and in the end, the United States will pay the price of diminishing returns by lowering the standards of acceptability.

Once upon a time, the U.S Postal Service was the envy of the world. From the public’s standpoint: Efficient; reliable; a joy to encounter the mail carrier who always responded with a waive and a smile; and with reasonable costs for such excellent service. From the Postal employee’s perspective: While blue collar jobs in the private sector were being shipped overseas in massive transfers of wealth, the U.S. Postal Service was an attractive employer where satisfying work with attractive benefits and a generous retirement system promised a living wage and a fulfilling career. And from the Postal Service’s vantage point: Efficiency was its talking point; looking out for its employees was the standard; and support for its workers was always paramount, including their health, safety and welfare. All of that — of all 3 perspectives — has changed.

The reality today is that “excellence” is no longer the standard. Rather, it is the “business model”, of “surviving into the 21st century”, of getting more out of each worker for less; of persuading the public to accept something — very much of something — less than excellence. The maneuver was analogous to the visit to the doctor’s office — you know, of the ploy where you are first asked to “check in” at the receptionist’s desk, then made to wait for 20 minutes beyond the appointment time; then, you are brought into a room where you are left to vegetate for another 20 minutes; then, a nurse comes in, looks over your chart in a cursory manner, takes your blood pressure, then tells you that the doctor will be in “momentarily” — and another 20 minute wait. By then, you have been waiting for well over an hour, but psychologists know that a patient’s patience runs in 20-minute increments, and so long as something is seemingly progressing before the expiration of the 20-minute timeframe, it will be acceptable.

That’s what happened with the U.S. Postal Service. Slowly, incrementally, we have been asked to accept longer and longer delays; of half-days on Saturdays; now, the proposal to do away with Saturday Postal Service altogether, when in fact that is often the only day where busy people can even go and use the Postal Service; and of greater wait-times for first class delivery; of Priority Mail extended by double or triple the delivery time; of Express Overnight Mail, despite the higher cost, often taking 2, sometimes 3 days to get to the intended destination; of “tracking” which is meaningless because, if it shows that there is no movement of the piece of mail or has become stuck at some processing facility, nothing can be done about it, anyway. No one any longer demands excellence; rather, the Postal Service, Congress and the Executive Branch have been changing the goalposts for years, and the public must accept less than excellence.

For the employees of the U.S. Postal Service, the future will likely see greater stress, more injuries, and greater numbers of employees filing for Federal Disability Retirement benefits. The stress is palpable if you access the services of the U.S. Postal Service. The longer lines; the greater demands upon a skeletal staff already demoralized by an impatient and uncivil public; and by frustrations expressed openly and directed towards the employees of the U.S. Postal Service. And the effects of the recent and ongoing pandemic has not helped, but rather, has exacerbated the frustrations manifested.

Federal Disability Retirement is an option always open to Postal employees who are injured or otherwise suffer from a medical condition while working as a FERS employee. The medical condition does not have to be an “on-the-job” injury, and is therefore distinctively different — both in terms of causation (the medical condition can occur outside of the job, on weekends, on vacation, without any relationship to the job at all, etc.) and in terms of benefits.

The following is a brief synopsis of the three different benefits which the Postal employee can access in the event of a medical condition or injury:

OWCP Benefits: Filed through the Department of Labor, this benefit is available where it can be shown that an injury or medical condition occurred while on the job or otherwise caused by the job. It is not meant to be a “lifetime” benefit but, rather, benefits are usually paid during the time of recovery and rehabilitation, with the ultimate intent and goal of returning you to work. Where appropriate, some sort of vocational rehabilitation or retraining for another job may be offered.
Social Security Disability benefits — filed through the Social Security Administration, Office of Disability Insurance, the standard to qualify for this benefit is much higher than filing for Federal Disability Retirement benefits under FERS. As part of filing for Federal Disability Retirement benefits under FERS, however, you must at some point file for Social Security Disability benefits, and attach a receipt to the FERS Disability Retirement application showing that you filed. Social Security has a higher standard of “total disability”, and has a lower threshold of income restrictions.
Federal Disability Retirement benefits under FERS — the Federal Employees Retirement System (FERS): To qualify, at a minimum, an individual must have at least 18 months of Federal Service. You must show that you have a medical condition which prevents you from performing one or more of the essential elements of your position of record, and that your medical condition will last a minimum of 12 months (which can be shown via a doctor’s prognosis — meaning that, you do not actually have to wait 12 months before filing). The annuity pays a benefit of 60% of the average of your highest-3 (36 consecutive months) years of pay for the first year, then 40% every year thereafter until you reach the age of 62. At 62, the annuity will be recalculated based upon the total number of years of service accrued, including any military buy-back time, the years prior to obtaining your disability retirement, as well as — and here is the greater advantage, because you are actually “building” upon your retirement by remaining on Federal Disability Retirement — the time that you are on the disability retirement rolls. Thus, the advantage over OWCP is multiple: Yes, OWCP’s Temporary Total Disability (TTD) payments almost always pay more, but the time you are on OWCP does not count towards your final retirement calculations. It is thus a short-term gain (more pay) but a long-term disadvantage (it is not a retirement system, but a system intended to return you back to work and, furthermore, does not count towards your final accrual of time-in-Federal-Service).

Over the recent decades, the U.S. Postal Service has undergone many changes. From the period of time when the term “going Postal” erupted, to Congress’ actions to turn it out as a “quasi” Federal entity — somewhat like an illegitimate sibling — and, now, of more “restructuring” and making the public accept fewer services. What this ultimately means for employees of the U.S. Postal Service is more stress, greater demands, and likely more injuries and manifested medical conditions resulting from repetitive-overuse injuries and medical conditions resulting from constantly hurrying, without considering the safety concerns of its employees.

This is why accessibility to Postal Disability Retirement benefits becomes crucial in the age of greater stresses. Whether of work-place injuries, other “non-job related” medical conditions, including physical, emotional or psychological medical conditions, Federal Disability Retirement is a benefit which is there to be accessible when needed. The list of “qualifying” medical conditions is inexhaustible. Thus, if you suffer from chronic pain, injuries to your neck or back; psychiatric conditions of Anxiety, Panic Disorder, Major Depression, Bipolar Disorder; or of cancer and the effects from radiation or chemotherapy, etc. — Federal Disability Retirement is a benefit which provides a safety-net during these times of increasing stress and goal-post changes which society and the Federal Government seems to keep adding to the already stress-filled life which the U.S. Postal worker must face on a daily basis.

Sincerely,

Robert R. McGill, Esquire
Postal Employee Medical Retirement Lawyer

U.S. Postal Service injuries: The Durable Body

Posted on October 1, 2019 by Robert McGill

Have you ever seen those videos depicting mechanized arms repetitively opening and closing a car door in order to test the durability of an automobile’s structural soundness? Robots and automation have replaced such testing scenarios; for, in the “old days”, you can imagine a “quality assurance specialist” opening and closing, opening and closing the door, the hood, the trunk, etc., to make sure that it doesn’t fall apart — and in the meantime, doing grave physical damage to the inspector’s own anatomy because of repetitive stress upon doing the same job over and over again.

The human body has often been marveled at. If from a religious viewpoint, it is perfection created in the image of a perfect being. If from an evolutionary standpoint, it is the result of a lengthy elimination of genetic mishaps through trial-and-error consummated by a process where the survival of the “fittest” wins out. Yet, every functional anatomy — whether made of human flesh, of mechanical apparatus or a combination of both (what was once referred to as “bionic” limbs) — has its limitations, and whether the human body was meant to undergo repetitive usage necessitated by the requirements of employment is a question to be pondered.

U.S. Postal workers are exposed to a unique hazard — that of repetitive stress injuries. Such injuries or medical conditions are caused by the human anatomy engaging in repeated movements and motions performed over and over again, whether for employment or in daily living activities. The effects culminating from such activities are often identified as “repetitive stress injuries”, or sometimes as “cumulative trauma disorders”, “repetitive motion disorders” or “overuse syndromes”. However one terms it, the resultant consequences encapsulate a wide range of medical conditions and physical injuries which impact muscles, ligaments, tendons, nerves, and the structural integrity of interconnective tissues which make the miracle of the human body work.

U.S. Postal workers are particularly susceptible to such personal injuries, precisely because they must engage in such repetitive motions and movements in the daily course of their craft. The result? Various medical conditions arise, including (but certainly not exhaustively limited to):

Chronic back pain
Bursitis
Carpal tunnel syndrome
Tendinitis
Epicondylitis
Tenosynovitis
Ganglion cyst
Internal Knee derangement
Hip labral tear
Ankle injuries
Feet problems
Trigger Finger
Multiple other related conditions and injuries

Postal workers who suffer from such injuries are often faced with multiple challenges: As injuries often mount once a single medical condition begins to develop (the known phenomena of, “When it rains, it pours”), and as age begins to play a factor in one’s career (can one make it to age 56 with 30 years of repetitive stress?), can it be proven that such injuries are occupationally-related? And what about the phenomena of the “last straw that broke the camel’s back”? You know — you work as a letter carrier for 25 years and have been feeling sore knees for quite some time, but on a bright and sunny day you decide to challenge your teenage son to a pick-up game on the basketball court and twist your knee. Question: Was it really that overenthusiastic jump shot that resulted in a jarring crunch to the knee, or the 25 years of walking 10 – 20 miles on concrete surfaces that ended with a bum knee? Of course, the Emergency Room Report notes that the “individual comes in today with right knee pain; says he was playing basketball with his son when…”.

Was the human body meant for decades of repetitive activities or motions? Certainly, there are mitigating ways of working that one should be aware of when first a person takes on a career which will require repetitive work. But, then, when we were 20 or so, who ever thought that we were less than invincible, indestructible, and of an enduring quantity? The Mail Processing Clerk, the Mail Handler, the Letter Carrier, the Flat Sorter (Automation), the Electronic Technician — in his or her early days, could do the job, come home and jog 5 miles for leisure and relaxation. Then, into one’s 30s, perhaps the tinge of soreness and hint of fatigue forced you to cut back to less strenuous activities; and by 40 or so, watching a football game was preferable to actively playing the sport, with a compromise that “gardening” was just as healthy and walking to the grocery store was good exercise as well. Days and weeks go by; and months turn into years. Throughout, without being fully conscious of the consequences, you have been engaging in uninterrupted repetitions of movements and activities at work which involves extensive overexertion often at the expense of proper posture or adequate rest. Singular or multiple symptoms begin to appear: Pain; aching that will not go away; tenderness at various sites; stiffness that cannot be stretched-away; throbbing; tingling; persistent pain; numbness; loss of sleep because of the high distractibility of pain; fatigue that borders on profound fatigue.

You are suffering from Repetitive Stress Injury.

Whether the impact is upon your shoulder, neck, back, fingers, wrists elbows, ankles, feet or some other part of your anatomy, the miracle of the durable body has begun to reveal its structural vulnerabilities. When that realization comes to light, the distance between what you have accomplished and the goal of retirement becomes a seemingly insurmountable gap. Filing for Federal Disability Retirement under FERS may be the best option for the Postal worker who can no longer endure the repetition required of a craft employee — or even of Managers, Supervisors and Postmasters. It is a benefit which must be fought for and proven — that you are no longer able to perform one or more of the essential elements of your positional requirements. The human body was ultimately never intended for endless repetitive stress, and for the Postal worker who suffers an injury or medical condition resulting from a workplace injury — or even from an off-site injury from a pick-up basketball game ( remember that eligibility for disability retirement, unlike Worker’s Compensation, does not depend upon the medical condition being work-related), consider the benefit of filing for Federal Disability Retirement with the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Adding to the 10 Dos and Don’ts in filing for Postal Disability Retirement benefits with OPM

Posted on May 3, 2018 by Robert McGill

It is always a good idea to review statements made, declarations asserted and advice given in spheres of influence, legal or not, just to ascertain the validity of what was stated in the past. Then, if “updates” are necessary, or one can “add to” the value of past observations, such modifications may be fruitful and, more importantly, expand the knowledge previously gained. The 10 dos and don’ts previously annotated in a prior article included: Do not assume; Do not wait; Do respond affirmatively; Do ask outright of the doctor; Don’t count on bilateral loyally from the U.S. Postal Service; Do not believe everything the Postal Service tells you; Do provide a ‘totality of evidence’ approach in preparing a Federal Disability Retirement application; Do emphasize the credentials of your doctor; Do not act as your own lawyer; Do present your case in a streamlined, professional manner. While those 10 dos and don’ts are still relevant and apply today, it is always wise to revisit and refresh the underlying rationale in following such dictates of guidance, and to add some more in preparing, formulating and filing an effective Postal Disability Retirement application, to be filed with the U.S. Office of Personnel Management. Thus, some further Dos and Don’ts:

Do become familiar with the basic criteria of Postal Disability Retirement. Your parents may or may not have emphasized the importance of doing your homework. Such emphasis, now that you are older and wiser, should be applied when preparing one’s Postal Disability Retirement application for the U.S. Office of Personnel Management. The basic eligibility criteria, of course, can be easily gleaned from OPM’s website: for FERS employees, a minimum of 18 months of Federal Service and the existence of a medical condition that prevents the Postal employee from performing one or more of the essential elements of one’s Postal position. As with all endeavors and administrative engagements, however, there is the initial, somewhat-superficial rules that apply; then, there are more “secondary” and detailed issues to identify and ascertain in gaining further knowledge of the process — questions about accommodations and reassignment; of resignation as opposed to separation and termination; and whether you can work during the process, to what extent and for how long; and many further questions besides. Basic familiarity is a given; detailed analysis is a must; complete understanding is recommended in preparing, formulating and filing an effective Postal Disability Retirement application.
Do use the available law to your advantage. The law can be used both as a sword as well as a shield. If the former, it is utilized to advance your cause; if the latter, as a defensive mechanism to counter the aggressive parry of one’s opponent. Preemptively use the law in guiding the U.S. Office of Personnel Management into approvbility Retirement application. Anticipate the arguments that may arise; if the Postal Service is about to separate you from Federal Service for excessive use of SL or because you have been on extended LWOP, negotiate the terms of the termination in order to have the right to assert the Bruner Presumption.
Do not necessarily believe what the Postal Service tells you. In the previous formulation of the 10 Dos and Don’ts, the admonition was, “Do not believe everything the Postal Service tells you”. Here, the slight twist is: Do not necessarily believe what your agency tells you. It may well be that the U.S. Postal Service is honest and forthright; that your Human Resource Office will provide you with the correct information, and even that they will “work” with you during this difficult time in your life. However — and this is the caveat and the care that needs to be taken when relying upon an Agency’s direction and advice — when the Postal Facility begins to suspect that you will no longer remain as part of the “team” in pursuance of the Postal Service’s “mission”, your status as an outcast will be reflected in the selective information given and revealed. As human nature is inherently one of a herd-mentality, it is best to take the approach of a well-known figure when considering information from a source that may no longer be looking out for your best interests: trust, but verify.
Do not wait until the last moment. Again, this is a slight variation from the previous recommendation, which stated simply: “Do not wait.” Procrastination makes for unnecessary emergencies, and while medical conditions tend to take up all of the focus and energies needed just to get through a given day, the most effectively formulated Postal Disability Retirement applications are the ones that have been prepared with foresight, care and deliberative intent. However, as life often interrupts the best-laid plans, so medical conditions have the tendency and effect of delaying the completion of multiple other facets of daily living activities, and so the following admonition is applied: If you do not file on time, you will be precluded from making any arguments at all; if, on the other hand, you at least file before the deadline, you can always supplement later.
Do be careful in completing the Applicant’s Statement of Disability. Standard Form 3112A is the core and essence of a Federal Disability Retirement application. The questions on SF 3112A appear to be simple enough, but the question that most people fail to ask and have answered is: Are there legal consequences if certain questions fail to be answered in a particular manner? The simple answer to such a query is: Yes. Many people believe that if you just list the major diagnosed medical conditions, gather up a few medical records that show that you have been medically identified to suffer from such conditions, package it all together and ship them over to the U.S. Office of Personnel Management, that somehow the bureaucratic process will recognize the seriousness of it all and grant you your Postal Disability Retirement benefits. Good luck with that approach.
Do be the gatekeeper of the information conveyed. It is never a good idea to rely upon the good intentions of others, if only because one’s definition of “good” and that which constitutes “good intentions” can never be presumed. As the burden of producing evidence sufficient to meet the legal criteria of “preponderance of the evidence” is placed upon the Postal Disability Retirement applicant, so the responsibility of that which is submitted can be determined by the Applicant him/herself, or his/her attorney. Always review everything before it reaches its final “destination point” — the U.S. Office of Personnel Management.
Do prepare each stage of the process as if it will require the next. While it is true that each Stage of the Administrative Process called “Federal Disability Retirement” is unique, important and self-sufficient in and of themselves — and while we all hope that there will be no need to go to the “next” stage — nevertheless, a little bit of preemptive foresight is always a good idea. The First Two Stages of the bureaucratic process (i.e., the Initial Stage of the application and the “Reconsideration” Stage of the process are both before the U.S. Office of Personnel Management, while the “Third Stage” of the process is an administrative appeal before a Judge at the U.S. Merit Systems Protection Board) may not require preemptively extensive legal argumentation, inasmuch as OPM’s “medical specialists” are not lawyers and care little about the governing law. Nevertheless, making sound legal arguments is often a necessary pre-condition in preparing for the Third Stage of the Administrative process — before an Administrative Judge at the U.S. Merit Systems Protection Board — and it is a good idea to “prepare the groundwork” for that possible eventuality by arguing the major legal precedents during the first two stages of the process in anticipation of the possibility for appearing before the U.S.Merit Systems Protection Board.
Do not unduly focus upon the details of a denial. Each Stage of the Postal Disability Retirement process is independent of the other, to a great extent. The added “qualifier” — “to a great extent” — is meant to apprise all Postal Disability Retirement applicants, potential or otherwise, as to the practical impact of receiving a denial at the First, Initial Stage of the Process, or at the Second, Reconsideration Stage of the process. Each stage is viewed de novo — as new, starting over again, etc. Thus, to try and rebut point-by-point the rationale or reasoning of the First Stage OPM’s “Administrative Specialist” is somewhat of a waste of time, as the person who will be reviewing any newly-submitted evidence at the Second, Reconsideration Stage will not be relying upon the reasons for the denial propounded at the First Stage. This is not to say that the Applicant shouldn’t consider the general reasons and specific rationales given as to “why” one’s Federal Disability Retirement application was denied at the First Stage — only that a “point-by-point” refutation is often an act of futility. The same general rule applies to a Second, Reconsideration Denial — for, at that point, it becomes a “game-changer” in that the de novo process will be taken up in a completely different forum: Before an Administrative Judge at the U.S. Merit Systems Protection Board.
Do calculate time-frames on the “conservative” side. Yes, yes, it does “say so” — that you have thirty (30) days from the date of the letter in which to respond to an Initial Denial, and 30 days from the date of a Reconsideration Denial to file an appeal with the U.S. Merit Systems Protection Board — or from the date you received the denial. However, it is always a good idea to take the date of the letter and respond in a timely fashion using that date, instead of the more “flexible” date of when you received the Letter of Denial. Perhaps it will seem “unfair” that there was such a lengthy delay between the date of the letter and the date you received the letter; however, as life is often full of unfair events, so this one should be viewed with a similarly dispassionate perspective. As a general rule, that which can be ascertained as an indisputable fact (like the stated date on the denial letter) has the greater basis of reliance than one which can be later disputed (like the date one “received” the denial letter).
Do not turn your responses into a personal vendetta. Be professional about it. It is sometimes difficult to provide a Reader’s Digest version of the history of the medical condition and be your own harshest editor, but understand that the central focus of the reviewing “specialist” at the U.S. Office of Personnel Management who will make the decision upon your Postal Disability Retirement application does not have the time, inclination or desire to sift through tangential and irrelevant meanderings in your Applicant’s Statement of Disability as reflected on SF 3112A. Going on a tirade about how the Postal Service failed to accommodate you is not the issue; what attempted accommodations were provided and how they failed, might be — but only if stated in an objective, dispassionate manner.

Lists which purport to identify X-number of this or that rarely comprise an exhaustive compendium of the things that need to be done, and this list by no means accounts for all of the intricacies involved in preparing, formulating and filing an effective Federal Disability Retirement application, to be submitted ultimately to the U.S. Office of Personnel Management. Indeed, here’s another “Commandment” that should be followed: Do not try to be your own lawyer. Law is a peculiar animal; its technical nature and complexities often challenge the best of us, but more importantly, legal principles tend to have tentacles that reach beyond a simple understanding gleaned from a synopsis discovered on the Internet, whose source has not been ascertained and where validity is questionable.

Postal Disability Retirement is a specialized area of law that cannot easily be condensed into an abbreviated list of 10 dos and don’ts, but these Ten Principles listed herein, in addition to the previous ones discussed in a prior article, may provide some useful “tips” in preparing, formulating and filing an effective Postal Disability Retirement application with the U.S. Office of Personnel Management. The operative concept here, of course, is encapsulated by the word “effective” — for, why else would you expend your time, effort and resources in applying for a benefit which must be proven by a preponderance of the evidence, unless it has become a necessary contingency leaving little choice in the matter? Effectiveness is gained not by chance or unplanned circumstances, but by taking a deliberative approach in preparing, formulating and filing based upon knowledge and gained wisdom, and the principles underlying any efficacy of endeavors must always begin by knowledge gleaned from past experiences, or from a lawyer who is experienced in such matters.

Sincerely,

Robert R. McGill, Esquire

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

Posted on July 21, 2015 by Robert McGill

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

Reconsiderations and Other Medical Matters during Your USPS Disability Retirement Process

Posted on November 17, 2014 by Robert McGill

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.

Federal Disability Retirement in the U.S. Postal Service: The Validity of Medical Conditions, whether Physical or Psychiatric

Posted on April 23, 2014 by Robert McGill

In the year 2014, one would expect that mindsets of anachronistic tendencies would have disappeared. Social upheaval; changes of customs, values and mores; alterations to traditional notions of what defines X; as each generation believes itself to be the wisest, so we have arrived at this period in modernity where questions of the validity of psychiatric conditions would still be an issue. That is rather astounding. Calls are still received where the query reflects a sense of trepidation as to the viability of a psychiatric condition. This, in the year 2014.

Postal employees, in particular, suffer great stresses in the workplace. It is simply a fact of life for the modern Postal Worker: Do more with less; don’t expect a pay raise; consider yourself lucky in this economy to have a job. But what are the consequences of following such a mandate? Greater stresses at every tier of being occurs when employed at the U.S. Postal Service. The real “trickle-down” economic theory has to do with the employment impact of a worker’s environment which finds its paradigmatic impetus in the U.S. Postal Service: the physical and psychological consequences of an organization (the U.S. Postal Service) which expects more of its workers, while demanding that the same work be accomplished with less help, less pay, and within the constraints of less time, because overtime pay is forbidden. Stress and the psychological impact upon one’s health, are the conjoining issues which can never be quantified.

As a child, one recalls a representative of the Nuclear energy industry visiting our school and giving a talk, and citing a statistic that not a single individual had died as a result of an industry accident. At the time, the thought was: that is a pretty amazing statistical conclusion. As one grows older, of course, hopefully one increases in wisdom – or, put another way, in cynicism. Question: Does the statistical conclusion take into account a cancer-related death occurring decades later, where direct causality between an industry and the medical condition cannot be unequivocally established? And a similar question for the U.S. Postal Service: Do the pressures placed upon the Postal Worker, to do more with less, account for a rise is Psychiatric conditions?

It sounds so simple, in theory: This is a hard economy; competition is more intense than ever; UPS and FedEx are eating away at the competitive edge which the USPS once held; everyone is suffering, so it is only fair to force the U.S. Postal Service to be required of the same: Do more with less.

But as with all actions, there are consequences which – foreseen or unforeseen – take their toll. The short answer is that, in filing for Federal Disability Retirement benefits, there is little difference as to the viability of a case between physical medical conditions and psychiatric conditions. The issue is no longer the conceptual distinction between physical medical conditions and psychiatric conditions; rather, the issue is one of establishing sufficient proof in filing for OPM Disability Retirement benefits. For, in the end, proving a Federal Disability Retirement case, filed with and reviewed by the U.S. Office of Personnel Management, is not based upon a determination of the seriousness of a medical condition; rather, regardless of the medical condition, the extent of the impact to which the medical condition prevents one from performing one or more of the essential elements of the Postal Job which the Postal Worker must engage.

It is thus the “nexus”, or the linguistic “bridge” established between a medical condition and the type of job which the Postal Worker must work, which is the important body of proof to establish in a Federal Disability Retirement application. How does one make that connection, or establish that proof? Since much of Postal work involves strenuous physical activities of a repetitive nature, where physical health and fitness is the primary focus, how does one then wrap the physical aspect around the psychological turmoil? If you can physically lift up to 70 lbs., bend and twist repetitively; stand and walk throughout the day; it matters not whether you suffer from Bipolar Disorder, Cognitive Dysfunctions, Severe Major Depression, Anxiety, Panic Attacks, suicidal ideations, etc. Or so one might assume, and therefore doubt that psychiatric conditions form a viable avenue for successfully filing for Federal Disability Retirement benefits, for Postal employees who are under either FERS or CSRS.

The concurrent and parallel roads which converge to precipitate the large volume of cases comprised of psychiatric conditions, by Postal Workers alone, shows the state of working for the U.S. Postal Service. Yes, Postal Work is engaged in rigorous physical exertions, which often comprise a compendium of medical conditions which are valid bases for filing a Federal Disability Retirement application, including (but not limited to), Rotator Cuff tears; chronic knee pain; lumbar and cervical radiculopathy; Carpal Tunnel Syndrome; Shoulder Impingement Syndrome; Plantar Fasciitis; and multiple other physical conditions. Paralleling such physical conditions, however, are the stresses from such physical work which often manifest themselves in psychiatric terms, including those psychiatric conditions already mentioned above in the preceding paragraph: Major Depression; inability to focus or concentrate; Agoraphobia (which would obviously impact City or Rural Carriers); Generalized Anxiety Disorder; uncontrollable panic attacks; and similar psychiatric medical conditions.

How does one create the nexus between (A) a Psychiatric condition which impacts the cognitive capacity of a Postal Worker and (B) the inability to perform what essentially amounts to exertional physical labor? Quite simply: The ability to perform physical labor does not merely involve the physical act of labor; rather, it also entails sustained and consistent cognitive focus, concentration, and attention to detail. The intersecting and inseparable cooperation between the mind and the body in performing physical labor cannot be avoided. Sometimes, it is the physical medical conditions (e.g., chronic pain; multi-level degenerative disc disease; early onset of arthritis; subacromial bursitis; knee problems; ankle instability; and multiple other conditions) which are primary, with the psychiatric disabilities being secondary (i.e., Major Depression, Anxiety, panic attacks, etc., following upon the constant fight against the chronic pain, and thus deemed to be “second” in sequence with the physical conditions being primary). The point throughout, however, is that the attempted separation and bifurcation between physical disabilities and psychiatric disabilities, no longer hold any valid basis.

A decade or so ago, the question as to whether psychiatric medical conditions were more difficult to prove in a FERS or CSRS Federal Disability Retirement application, filed with the U.S. Office of Personnel Management, may have deserved a momentary pause for reflection. In this day and age, the validity of such a question itself must be questioned. The mind/body distinction which first took root in our culture through the philosophical division created by a French Philosopher named Descartes, has resulted in centuries-old questions as to the bifurcation between the physical and the psychological. In this day and age, however, the Postal Worker need not fear or have any concerns about the viability of a Federal Disability Retirement application which involves primarily psychiatric-based claims. Psychiatric medical conditions, including (but not limited to) Major Depression, Anxiety, Panic Attacks, Bipolar Disorder, Schizophrenia, Agoraphobia, Obsessive-Compulsive Disorders, etc., are all valid bases upon which to file for Federal Disability Retirement benefits; as well as all of the physical medical conditions which one may suffer from.

In the end, it is no longer a question of whether the medical condition involves physical or psychiatric medical conditions, when it comes to a valid basis for filing a OPM Federal Disability Retirement application. Rather, the question is how one formulates one’s case such that proof can be established that the medical condition – whether physical or psychiatric – prevents one from performing one or more of the essential elements of one’s Postal duties. It is the “how” which is important, and no longer the “whether”.

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

Posted on August 27, 2013 by Robert McGill

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

FERS & CSRS Federal Disability Retirement: Securing a Future in a World of Uncertainties

Posted on March 2, 2013 by Robert McGill

Federal Disability Retirement is a benefit under both FERS (Federal Employees Retirement System) and CSRS (Civil Service Retirement System). Postal employees are either under FERS or CSRS, and each Postal Service employee is eligible for the benefit variously known as “Federal Disability Retirement”, “Medical Retirement under FERS or CSRS”, or sometimes otherwise recognized as “OPM Disability Retirement”. As the economy constricts, and the Federal deficit continues to loom larger, companies often tend to react in ways which are contrary to rationality or good business sense. As the upper management of the U.S. Postal Service is not known for great managerial competence, accessibility to such compensatory programs as the FERS & CSRS Disability Retirement programs will be an essential roadmap for securing one’s future economic well-being.

The U.S. Postal Service is a Constitutionally-recognized entity, as referenced in Article I, Section 8, Clause 7 of the U.S. Constitution, providing that Congress shall establish Post Offices. Yet, it is clear that the Federal Government wants to dissociate itself from its obligations, leaving the U.S. Postal Service to fend for itself in these difficult economic times. With sequestration overshadowing all budgetary issues (and with uncertainties as to their long-term effects upon the rights, duties, obligations and entitlements for Federal and Postal employees); a Postal 2012 deficit tally approximating 16 billion dollars; and now, after failing in an earlier attempt to “connect” with the younger generation (by the way, where is the Lady Gaga stamp?), now we are making a stab at fashion and a clothing line. This will surely be a revenue-generating endeavor (please ignore the obvious sarcasm inherent in such a statement) and, moreover, will be a fierce competitor against the likes of London, New York and Paris fashion designers. Where, oh where, has the U.S. Postal Service gone wrong?

Then, of course, there is the “mystery shopper” program. This is essentially analogous to the drone program of spying on one’s own citizenry, except that the employees who go around finding fault through endless irrelevancies and minutiae are getting paid for a job which does nothing to advance the efficiency or profitability of the U.S. Postal Service. Indeed, when the “mystery shopper” begins annotating multiple demeritorious criticisms leveled at a Postal Facility, do they take into account that with the cutbacks and budgetary constraints, the Postmaster is running back and forth filling in; that the Mail Truck did not arrive until 11:00 a.m. because central distribution facilities have been consolidated and everyone down the assembly line is overworked and understaffed? So, if the Window Clerk fails to ask the customer whether or not he or she would like to buy any stamps, perhaps it is because there is a line of 20 people waiting behind the customer?

Of course, stresses are an everyday part of life. In man’s original “state of nature”, survival itself was the great stressor. In man’s artificially-created world of commercial competition, debts and deficits which go into the trillions; and in a world where a Constitutionally-authorized entity is ignored by the U.S. Congress — the stresses and the dangers posed by the U.S. Postal Service will only get worse as the economic fortunes of the U.S. Postal Service continue to decline. In this artificially-created world of post-industrial stresses, the U.S. Postal Worker is most uniquely susceptible to medical conditions which reflect the complexity, severity and in many cases, the savagery of the global competitiveness of the world in which we live. Everyone has been impacted by the electronic age of datum-dissipation: email, online shopping, Internet communication; Skype, IM, Texting, Facebook updating; all of the technologically-advanced methodologies of communicating – in the face of this, the old first-class letter sent from one part of the country to another. For .46 cents, why would someone send a letter which takes at least three days to deliver, when you can push a button and send an email instantaneously? With FedEx, UPS and other smaller carriers competing for the limited rights to dominate the global market of transporting and delivering parcels and packages, the question of loss, of relevance, of a dedicated workforce willing to invest in a company with a future outlook which is bright and promising, is the key to the very survival of the U.S. Postal Service.

Mistreating its injured workers; trying to compete in a line of commercial venture which is, at best, tantamount to a the proverbial “fish out of water”; cutting back on the backbone of its strength – by shutting down major distribution processing facilities and declaring to the public that such facility closures will not impact the efficiency of the delivery system – a statement which everyone knows to be merely a conciliatory attempt at putting things in the best light possible, but which we all recognize is at best an exaggerated misstatement of facts; and now, retreating and retrenching by stopping Saturday mail deliver – these are not the foundations for a promising future for Postal Workers all across the United States. In the very recognition of all of this, it is important to understand that if the Postal Worker of today is an anathema, a dinosaur in a world of technology and multi-tasking: The mail must still be trucked, unloaded, pulled, culled, sorted, processed, distributed, all by hands, arms, necks, shoulders, backs and knees which are not built for decades of repetitive strain. Performed by Mail Handlers, Distribution Clerks, Mail Processing Clerks; Window clerks, Sales, Service & Distribution Clerks; Letter Carriers (City & Rural); overseen by Supervisors, Customer Services; Postmasters and Postal Managers; the physical strain, exacerbated by the emotional and psychiatric stresses of doing more with less; all have, continue to, and will result in greater and widespread medical disabilities which will include a long litany of conditions which will include repetitive strain injuries, Carpal Tunnel Syndrome, Shoulder Impingement Syndrome; Subacromial bursitis; Labral tears; knee injuries; multi-level degenerative spinal conditions; Major Depression, Generalized Anxiety Disorder, uncontrollable panic attacks; just to list a short version of potential medical conditions which will erupt in a rampage of conditions which will result in an inability to perform the physically-demanding, cognitively-stressful, and emotionally draining jobs within the U.S. Postal Service.

Stress is an inherent part of any job. However, that being said, the stresses which are artificially imposed because of deleterious managerial decisions over (now) many decades of misuse, abuse and poor engagements for competitive economic ventures outside of the proper venue of what the U.S. Postal Service is empowered to do – will only predictably result in the exponential explosion of medically disabling conditions. Federal Disability Retirement is a viable avenue of consideration for the injured and medically disabled Postal Worker. It provides compensatory relief for the Postal Worker who is no longer able to perform one or more of the essential elements of one’s job, and allows for the possibility to receive an annuity while seeking to continue in another vocation in the private sector. As an annuity, it will pay 60% of the average of one’s highest-3 consecutive years of service for the first year, then 40% every year thereafter, until age 62 when the annuity is recomputed based upon the total number years of Federal Service (including the time while on Federal Disability Retirement).

As a compensation program, Federal Disability Retirement is a progressive paradigm for the future. While the U.S. Postal Worker continues to engage in such foolish endeavors as a line of designer clothing, the ground-level Postal Worker must always entertain all options available, to secure the future, and provide for some economic certainty in an ever-growing world of uncertainty.

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

Posted on September 25, 2012 by Robert McGill

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.