Tag Archives: CSRS disability retirement

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

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Are there unique aspects in a Federal Disability Retirement application, separate and distinct from non-Postal, Federal employees? Are there essential features, different approaches, and distinguishable paradigms to follow? Are the rules different, applied differently, approached separately, devised insufferably, when determined to involve Postal employees? Are there unique characteristics, either through the preparation delineated from the perspective of the Postal Federal Disability retirement applicant, or from the viewpoint of the U.S. Office of Personnel Management, which should be recognized before making that leap into the wide and deep chasm of submitting a Federal Disability Retirement application to OPM?

Certainly, many of the appellate decisions handed down by the U.S. Court of Appeals for the Federal Circuit, as well as by the U.S. Merit Systems Protection Board, involve U.S. Postal employees. But is the fact that a case involving a U.S. Postal employee enough to distinguish it from other Federal, non-Postal cases? Admittedly, decisions handed down by the Federal Courts or the MSPB do not openly acknowledge any conceptual distinction between Postal employees filing for Federal Disability Retirement benefits, from non-Postal, Federal employees in multiple other agencies; and all presume (correctly and accurately) that both Postal and non-Postal Federal employees fall into the same retirement systems (FERS, CSRS or CSRS-Offset), and as such, the identical legal criteria are applied, including:

  • Minimum of 18 months of Federal/Postal accrued service in order to file for Federal Disability Retirement (for CSRS, 5 years, which presumably already has been met)
  • Not separated for more than 1 year
  • Having a medical condition, such that the medical condition prevents the Federal or Postal employee from performing one or more of the essential elements of one’s job
  • Both the Federal and Postal employee cannot be reassigned to a position at the same pay or grade, and further, cannot be accommodated such that the accommodation allows the Federal or Postal employee to perform all of the essential elements of the job.

Put more succinctly, while overt treatment of both Federal and Postal employees may appear identical, are there “issues” which differentiate between the two? Certainly, and again, accurately, the cases which impact Federal employees parallel Postal employees in their direct and residual effects, and vice versa. As all Federal employees and U.S. Postal employees fall under the same retirement systems, as well as concurrently identical disability retirement benefits, the question therefore must involve any indirect consequences for the U.S. Postal worker, as opposed to the overt residuals that portend both for Federal employees and U.S. Postal workers.

Internal mechanisms unique to the Postal employee can have an impact upon how the U.S. Office of Personnel Management views, analyzes and evaluates a Federal Disability Retirement application submitted by a U.S. Postal worker. Thus, for example, the National Reassessment Process (or as some designate the acronym as representing the term, “Program”) impacted all Postal employees throughout the nation, across all crafts, in reviewing all injured Postal employees serving in a limited duty capacity or other “temporary” light duty assignment, in an effort to ultimately “squeeze” the employee, shed the Postal organization of any and all Postal workers in less than “fully productive” capacity, and return them to the OWCP rolls. But temporary “light duty” assignments, or even “limited duty” assignments (whatever the conceptual differences are between the two), were deemed not to prevent a Federal or Postal employee from being eligible for Federal Disability Retirement benefits. The U.S. Office of Personnel Management fought hard against such a ruling, and indeed, in the beginning (at the MSPB level), prevailed in this viewpoint.

Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001), and further extended in Marino v. Office of Personnel Management, 243 F. 3d 1375 (Fed. Cir. 2001), is a landmark case in clarifying what constitutes an “accommodation” as opposed to a temporary measure of convenience – both for the Federal and Postal employee, as well as for the agency and the U.S. Postal Service. Until the nationwide interference by the NRP in “meddling” with a system that was working, the Postal Service was attempting to maintain the delicate balance between the Postal Service’s inherent need to remain productive and efficient on the one hand, and the rights of the Postal worker who had incurred a medical disability (the majority of which were OWCP-accepted, on-the-job injuries) but retained a desire to continue working. In recognizing the two sides of “needs” and “wants”, the Postal Service created temporary, limited and light-duty assignments. When the NRP began sending Postal workers home with summary dismissals accompanied by curt declarations somewhat in the manner of, “Based upon a review of your medical conditions and the availability of work in your craft, we have determined that the U.S. Postal Service is unable to find suitable work for you” – the remaining option for stranded Postal Workers was to file for Federal Disability Retirement.

The legal definition of an accommodation, for purposes of Federal Disability Retirement, is anything that an agency can do for the Federal or Postal employee which enables “him to perform the critical or essential duties of his official position.” (See, e.g., Selby v. OPM, 2006 MSPB 161, decided June 9, 2006). Thus, placing a Federal employee in a temporary position, or a “light duty” job, does not constitute an accommodation under the law, precisely because such an action on the part of the Agency is to merely sidestep or otherwise avoid the primary concern: such a Federal or Postal employee is still unable to perform all of the essential elements of the official position. For a long time, the issue of whether or not “light duty” constituted an accommodation was essentially an irrelevant one. Prior to the NRP, the Postal Service “accommodated” (using the term very loosely) its injured workers, by allowing for limited or light duty. With the advent of the NRP, the game-changing nature of their meddling became clear: Rid and shed, and let OPM determine whether or not the two-edged sword was sharp on both sides: the Postal Service has no work, anymore, but the Postal worker has been working for many years after incurring a medical condition. Would such a Postal worker still qualify for Federal Disability Retirement benefits?

Vestiges of outmoded thought processes still retain their residual effects well beyond the life-cycle of viability. It is said that hair follicles and toenails continue to grow beyond the certainty of death; perhaps it is merely a myth, or a misperception as dehydration occurs and retraction of surrounding skin leaves the impression of growth and extension. OPM has fought their fight, and lost. Postal workers are still being sent home with summary dismissals based upon “unavailability of work,” and left to fend for themselves while receiving zero-balance paystubs for years, sometimes decades. At some point, the Postal Worker realizes that OWCP is not a retirement system, and being sent to a “second-opinion” evaluation may mean the end of temporary-total Worker’s comp payments. Then what? Filing for Federal Disability Retirement is the option to pursue, but perhaps it has been years since a treating doctor has certified that a medical condition even exists. As there is a wide chasm between perception and reality, so we return to the original question: Are there overt “issues” which differentiate between treatment of Federal employees as opposed to Postal workers? It may well be that the issues remain fairly identical, but the circumstances which create the difficulties make for a distinguishing difference.

But then, that has always been the case with Postal employees – that “quasi-Federal worker” who works for the only Constitutionally-recognized agency, but somehow is relegated as the second-class citizen in the complex universe of Federal systems, and left to consider the administrative procedures governing Federal Disability Retirement benefits for both Postal and Federal non-Postal employees. In the end, it is the very uniqueness of how the non-Postal Federal sector views the Postal worker, which mandates a cautious approach to be taken when the Postal employee considers preparing, formulating and filing for Federal Disability Retirement benefits through the U.S. Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire
Postal Employee Medical Retirement Lawyer

 

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

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Postal Service employees often feel that they are second-class citizens – both in terms of their status and stature as a “Federal employee” who is under either the Federal Employees Retirement System (FERS) or (for those lucky ones who are quickly diminishing in numbers but who were able to enter the Federal workforce prior to the 1986 transition) under the Civil Service Retirement System (CSRS); and in terms of pay scales and discussions in Congress related to bloated budgets, inability to become profitable, etc.

For Postal employees who are considering filing for Postal Medical Retirement under FERS or CSRS, the question is often queried as to whether the U.S. Office of Personnel Management treats Postal employees differently than non-Postal, Federal employees.   Whether there is any empirical evidence of discriminatory intent on the part of OPM against Postal employees who file for Federal Disability Retirement benefits, is essentially a non-starter.  For, in the end, each case must be decided on the unique quality and extent of the medical documentation compiled.   Further, one cannot compare and contrast differentiated groups lumped by “Postal” as opposed to “non-Postal”, precisely because the uniqueness of each Federal Disability Retirement case is characterized by the medical condition itself; the type of job and positional duties undertaken by individual X who suffers from the medical condition; and the extent, severity and chronicity of the medical conditions in relation to the duties.

With literally hundreds of Federal agencies, and thousands and tens of thousands of differing types of jobs, one cannot aggregate a generic “Postal Worker” and compare it to a compounded composite of “other Federal workers”.  Thus, it is a wrong question to ask.  Instead, the proper question to ask would be:  Given a Postal Worker who is in craft-X, who suffers from medical condition-Y, is there a greater incidence of denials from the U.S. Office of Personnel Management of Postal Workers who file for Federal Disability Retirement benefits, and if there is a greater proportional aggregate of denials as compared to the total number of denials, is there a valid reason for such disproportionate treatment?

In other words, it would be – on its face – incomparably unfair to compare an IT Specialist with the Department of the Navy, who suffers from severe Major Depression and anxiety, to a City Letter Carrier who suffers from status-post cervical discectomy and fusion, precisely because of the type of medical condition involved, and the positional requirements of both.  Further, are there inherent factors within the U.S. Postal Service which can account for any disparate treatment (if we proceed on the assumption that there even exists such differentiation of reviewing and deciding Federal Disability Retirement applications filed by Postal Workers, as opposed to non-Postal, Federal employees)?   The answer is, Yes.

The Postal Service has for years been identified with the notoriety of refusing to accommodate their workers.  Whether in association with OWCP and the Department of Labor, where workers are sent to “second opinion” doctors and “referee” medical facilities in an effort to get people off of the rolls of OWCP and back to full duty; or in conjunction with the National Reassessment Program where an across-the-board infrastructural policy was implemented stating that no accommodations were available for those craft employees who could no longer perform all of the essential functions of one’s job, and that no medical restrictions or limitations would be henceforth honored – a maneuver meant to get rid of all Postal employees who were not fully functional in their jobs – the approach of the U.S. Postal Service in attempting to regain a competitive edge was to try and get rid of anyone and everyone who suffered from a medical condition such that the medical condition prevented the employee from performing all of the essential elements of one’s job.  One might think, upon first considering that approach, that such a maneuver by the U.S. Postal Service would increase the chances for getting a Federal Disability Retirement application approved – for, by conceding that the injured craft employee cannot perform any jobs at the U.S. Postal Service, the assumption would be that such a concession would be evidence for the U.S. Office of Personnel Management, as well as the Federal Disability Retirement applicant, that one is qualified because of the self-admission by the Postal Service, for Federal Disability Retirement benefits.

The problem is twofold:  First, the U.S. Office of Personnel Management is a separate agency from the U.S. Postal Service, and applies a legal criteria which gives scant attention to what the Postal Service thinks, does, or acts upon; and Second, evidence of what the U.S. Postal Service decides – while of somewhat dubious impact and persuasive authority – is ultimately not what makes a Postal Disability Retirement applicant eligible for Postal Disability Retirement benefits.

Indeed, look, for example, beginning with some older precedential cases such as Wilkey-Marzin v. OPM, 82 M.S.P.R. 200 (1999) – where  the Merit Systems Protection Board found that in order to determine a disability retirement in favor of an appellant,  there must be a showing beyond uncorroborated subjective evidence, and provide a “reasoned explanation” of the origins of the disabilities, and how it is disabling with respect to one’s specific duties.  In providing some guiding principles, the Board noted that the Judge should consider the following evidence: (1) objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; (4) evidence relating to the effect of the applicant’s condition on his ability to perform in the grade or class of position last occupied (see also Dunn v. Office of Personnel Management, 60 M.S.P.R. 426, 432 (1994) ).  Note that nowhere in the four (4) guiding principles is there an indication that what the agency does or doesn’t do, should be of primary consideration.  This is not to say that the issue of accommodations will not be relevant; and, certainly, one can argue that an NRP-based decision of refusing any work, or the dreaded “DRAC” (the so-called District Reasonable Accommodation Committee) determination of “no work available”, cannot be effectively used; but the primary focus in a Federal Disability Retirement case, from the viewpoint of the U.S. Postal Worker, should be to prove one’s case based upon the medical documentation, and not rely upon anything which the Postal Services does or doesn’t do.

In the end, if there has been an increase in the number of Federal or Postal Service Disability Retirement applications, in proportional numbers as compared between “Postal Workers” and any other single Federal Agency of the U.S. Government, it may be because of such unreasonable and uncompromising positions taken under the NRP, the DRAC decisions or in conjunction with OWCP claims.  For, when a determination is made that an agency (in this case, the U.S. Postal Service) will refuse to in good faith attempt to accommodate injured employees, such an intransigent policy will quite obviously increase the numbers of applications to obtain Federal Disability Retirement benefits.  But reliance upon what the agency does, without solid medical evidence to prove, by a preponderance of the evidence, that the Postal Worker is eligible and entitled to Federal Disability Retirement benefits, is to run a fool’s errand.  Postal Service employees have had to face multiple obstacles over the years, both in economic downsizing and frozen pay structures; and the decision to shed its workers from within because of medical conditions is merely an indication of the heart and soul of the Postal Service – not necessarily any evidence which would qualify the Postal Worker for Federal Disability Retirement benefits.  For that, one must affirmatively go out and compile one’s case, and use such evidence of the NRP as merely a secondary, peripheral evidence.

Sincerely,

Robert R. McGill, Esquire

 

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

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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.

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

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

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

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

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

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

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

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

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

 

National Reassessment Program

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       Postal Workers call me daily inquiring about the viability of filing for Federal Disability Retirement benefits under FERS or CSRS. Often, it is in response to the U.S. Postal Service’s initiation of actions resulting from the NRP. The “National Reassessment Program” (which is neither a “program” designed with any rational basis, nor a “reassessment” of anything but an attempt to shed all workers from the rolls of the U.S. Postal Service who are not fully productive and capable; but, alas, at least the term “National” does seem true) is designed to, in a heartlessly methodical manner, do the following:

A. Inform the targeted Postal Worker of the unavailability of work.

B. Force the Postal Worker to begin receiving benefits from FECA (OWCP) .

C. Begin a process of “vocational rehabilitation” – a euphemism for trying to locate a private sector job – any job – that you might qualify for.

D. Get you off of OWCP rolls once you are determined to be “suited” to the private sector job.

      The above applies on the assumption that you have a FECA (OWCP) accepted claim. If you do not have an OWCP-accepted claim, then only “A” above applies to you, and you will essentially be sent home without the “benefit” of “B – D”.

       All sectors – Federal and State Government, and private sector jobs – “downsize” during economically challenging times. In this economy, where job growth is stagnant and budgets are being squeezed more and more each fiscal year, the U.S. Postal Service is attempting to shed its payrolls of all workers who are not “fully productive”. With the latest numbers showing that the first quarter of 2010 left the U.S. Postal Service with a revenue decline of 3.9% resulting in a net loss of $297 million, the onerous steps as envisioned under the National Reassessment Program will only accelerate.

      The NRP is a “controlling” mechanism. The methodology of the program is to make the Postal Worker financially dependent upon OWCP payments and once dependent, to dictate the terms of the “vocational rehabilitation” such that you have no choice in the matter. In comparison to Federal Disability Retirement benefits, it certainly pays more (with a dependent, 75% tax free; without a dependent, 66 2/3% tax free, as opposed to Federal Disability Retirement benefits which pays 60% of the average of one’s highest three consecutive years the first year, then 40% every year thereafter under FERS, all of which is taxable). But the freedom which one gives up by submitting to the NRP Program is precisely what is intolerable.

       Many Postal Workers turn to Federal Disability Retirement benefits in lieu of FECA – or, at the very least, file for and obtain an approval for Federal Disability Retirement benefits as a “back-up” system to FECA. In comparison to the “benefits” under FECA (OWCP), Federal Disability Retirement benefits under FERS (and, similarly, under CSRS, although the percentage of benefits under CSRS remains static) provides the following:

A. It is a retirement system – so that one is actually separated from Federal Service, and further, except for the potential of a Medical Questionnaire every two years (if you are randomly selected), the disability annuitant is not under constant scrutiny

B. An individual Federal Disability Retirement annuitant is allowed to become employed in the private sector and make up to 80% of what one’s former Federal or Postal position currently pays, in addition to the disability annuity

C. An individual under Federal Disability Retirement is not dependent upon the often arbitrary and capricious decision-making process of OWCP. It allows one to decide and determine the future course of one’s life.

       Ultimately, the National Reassessment Program will impact you, the injured Postal Worker, whether today, next week, or a year from now. If self-determination is an important element of your life, then it is wise to take steps today, and to affirmatively make choices soon, before you attempt to go to work one day and are sent home with a letter stating, “There is no work available for you”. Or, you may not even receive the courtesy of a letter.

       The Postal Worker is probably unaware of one additional fact: all these years while the Postal Worker has been in a “Modified” light-duty position, while the U.S. Postal Service “accommodated” the worker by allowing for temporary positions at less than full duty requirements – all these years, that Postal Worker was eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS. You may simply have not known this, but being allowed to work in a “light duty” status, or in a “Modified Position”, was never a legally-sufficient accommodation under the law. (See Bracey v. Office of Personnel Management, 236 F.3d 1356 , Fed. Cir. 2001, as well as my related articles on the subject¹). During these years, the system worked in a crippled way — injured workers were allowed to continue to work, and the economy allowed the U.S. Postal Service to trudge along – albeit at a yearly loss.

       Today, however, choices must be made. The National Reassessment Program is here in your neighborhood, and it is no longer allowing for the old system to continue unabated. If you are contemplating filing for Federal Disability Retirement benefits under FERS or CSRS, now is the right time. To wait is to delay the inevitable; to ignore the inevitable is to allow the circumstances to dictate your future.

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¹ The Bracey Decision and other resources published by attorney Robert R. McGill:

a) Brief legal analysis of non-statutory laws: The Bracey Decision.

b) Blogs that mention Bracey v. Office of Personnel Management:

c) Some articles that also mention Bracey v. Office of Personnel Management:

d) Miscellaneous posts:


The Postal Worker Today: Choices, FERS & CSRS Disability Retirement, and Protecting one’s Future

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     Hypothetical:  A U.S. Postal Worker has been working for the past 7 years in a modified position.  Seven years ago, he injured himself on the job; he filed for OWCP benefits, had surgery, and returned some months later in a position within the same Craft, but modified to fit his medical restrictions and limitations.  By all accounts, he has been a productive worker.   Without warning, one day the Postal Worker is called into the office, interviewed, reassured, then escorted from the facility and informed that there is no longer any work for him to do, and that, by the way, “You can file for Worker’s Comp.” 

     Can such a hypothetical occur?

     The reality is that, under the National Reassessment Program (NRP), such a hypothetical is not a fictional instance of someone’s imaginative fantasy; rather, it is a reality which is occurring today. 

     In the world of the U.S. Postal Service and the injured worker who has one or more medical conditions such that he or she has restrictions or limitations which prevent one from performing the full panoply of the duties as outlined in the Position Description, there is no such thing as “bilateral loyalty”.  Bilateral loyalty goes like this:  You give your life to the organization, and the organization will be loyal to you.  The reality is the opposite:  You give your life to the organization, and if you can’t do the full duties of your bid job, you will no longer have a job with us.  The latter is termed, “unilateral loyalty” (i.e., kill yourself for our sake, and we’ll get rid of you if we find that you cannot perform the full duties of your position).

     Whether you are a City Letter Carrier, a Rural Carrier, a Mail Handler, Mail Processing Clerk, Distribution Clerk, Sales & Service Associate, Supervisor of a large, small, or mid-sized facility, or even a Postmaster – if you cannot perform the full duties of your position, your are in danger of being “downsized” (i.e., a euphemism for being terminated, or otherwise denied work).

     Are there solutions to the hypothetical-turned-reality in the world of layoffs, and in light of the National Reassessment Program?  There are multiple problems which continue to arise in the scenario as described above:  OWCP is not a retirement system, and their rolls are being scrutinized with greater regularity, and the eligibility standards appear to be tightening ever more.  Can one file for unemployment benefits even though the Postal Worker is still officially on “the rolls” of the U.S. Postal Service?  Will the Postal Service separate you from service, or will they wait for a year, keeping you on LWOP?  And how about Health Insurance benefits – will the Postal Service continue to maintain the premiums so that you will not lose your Health Insurance benefits?

     In the end, each Postal Worker – in whatever Craft or position one is in – must make decisions which are financially beneficial to the self-interest of the individual.  The term “self-interest” is not meant to be used as a pejorative or negative term – for, that is precisely how the U.S. Postal Service views the entire matter from their perspective – from the organizational self-interest.

     Thus, whether an individual Postal Worker, in any given Craft, suffers from a medical condition or disability – whether psychiatric or physical – he or she must protect and secure one’s financial future.  Filing for Federal Disability Retirement under FERS or CSRS is a viable option which allows for the Postal Worker to retire, receive a monthly annuity, retain the Health Insurance benefits from the Federal System, and go on to find other employment and be allowed to earn up to 80% of what the former Postal Job currently pays.  Remember – OWCP is not a retirement system.  As such, while it is a temporary means of being compensated, it will not last forever.  Further, remember that an individual under FERS or CSRS may concurrently file for OWCP benefits and get a Federal Disability Retirement approved, and continue to remain on OWCP until such time that one’s OWCP benefits are cut off or otherwise terminated.  If you already have the FERS or CSRS disability retirement benefits approved, you can “activate” such benefits once your OWCP benefits are terminated.  This is an important point to consider, because it can often take 6 – 8 months, or more, to get a Federal Disability Retirement application under FERS or CSRS approved.

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

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The U.S. Postal Service has, for many years, been a “good employer” for thousands of hard-working Postal employees.  By ascribing the term “good”, of course, one enters into the dangerous territory of different experiences in a wide-range of sectors across the United States, for just as there are “good” and “bad” people, there are good and bad Post Offices, Postmasters, Supervisors, Rural and City Carriers, Maintenance and Electronic Technicians, Clerks, Distribution Clerks, Mail Handlers, etc.  Individuals determine the moral and ethical designation of “good” or “bad”; individuals collectively make up an organization, which is reflective of the type, character and tenor of the individuals within that organization.

Thus, by the conceptual term “good employer”, is merely meant that it has allowed for thousands of hard-working, productive Postal employees to earn a decent wage. “Goodness” of an agency comes about because of good people, and if goodness is in any way determined or defined by the hard work of the majority of the people of any organization, then it is indisputable that the Postal Service, all things considered, is indeed a good agency.

Changes have been in the works.  And they continue to alter the landscape of the U.S. Postal Service.

For many years, when an on-the-job injury occurred, and an OWCP claim was filed, despite the onerous provisions of the Federal Employees Compensation Act (FECA), it allowed for temporary compensation benefits, including wage-loss benefits for total or partial disability, monetary benefits for permanent loss of use of a schedule member, medical benefits, as well as vocational rehabilitation. Yes, FECA is a hassle.  Remember, however, that FECA was never created as a “Retirement System” – but rather, as a means to temporarily compensate the injured worker while attempting to provide for rehabilitation resulting in an eventual return to work.   To that end, even when the injured employee never fully recovered, the Postal Service, in cooperation with OWCP, would attempt to offer various “light duty” or “modified duty” assignments, so that the Postal employee could be retained in a productive capacity.

There is actually nothing wrong with the U.S. Postal Service offering ‘light duty’ or ‘modified assignments’ over the years.  Now, however, with the onerous sweep of the National Reassessment Program (NRP) which is effectively telling all Postal Workers who are not “fully productive” that there are no more “light duty” assignments remaining; no longer can you remain in a “modified duty” position.  You are sent home with a terse explanation that there is no work for you, and you may file for OWCP benefits.  However, only a fool would believe that OWCP benefits will last forever.

What is the choice?  What alternatives are left?  Because Federal Disability Retirement benefits will often take 6 – 8 months to apply for and get approved, it is a good idea to start the process as early as possible.  You may stay on OWCP for as long as you can, or for the length of time FECA allows you to receive such benefits, but there will be a day, sooner than later, when such benefits will be cut off – either through

“vocational rehabilitation” (Translation:  find you a job, any job, that pays at or near what your Postal job paid, and be able to argue that you are no longer entitled to OWCP benefits), referral to an “Independent Second Opinion Doctor” who may look at you (or perhaps not even look at you) and spend five minutes before declaring that you have no residual symptoms and you should be able to return to full duty (Translation:  no more OWCP benefits, but we all know you can’t go back to carrying mail or performing the heavy lifting, bending, pushing, reaching grasping, etc.).

Would you qualify for Federal Disability Retirement benefits under FERS or CSRS?  Assume the following hypothetical:  X suffers from bilateral carpal tunnel syndrome, or perhaps from chronic back pain, failed back syndrome, or chronic pain throughout one’s musculature; it originated from an OTJ injury, accepted by OWCP, and for a decade X worked in a modified light duty job.  The job is no longer in existence (by the way, the fact that such a job is now “no longer in existence” is precisely what attorneys who specialize in Federal Disability Retirement benefits have been arguing for years – that a ’modified light duty’ does NOT constitute an accommodation under the law, precisely because it was merely a temporary position with an ad hoc set of duties, and nothing more).  Can you qualify for Federal Disability Retirement benefits?

Hint:  Note what the Administrative Judges at the U.S. Merit Systems Protection Board stated in the case of Selby v. OPM, Docket #SF-844E-05-0118-I-1, decided June 9, 2006:  “The fact that he was receiving two hours of workers compensation a day also buttresses his claim that his injuries prevented him from performing many of the critical elements of his position.”  In other words, any granting of receipt of OWCP benefits (in this particular case, it was compensation for 2 hours per day, but the argument can be extended to include any amount of compensation) only reinforces and supports (“buttresses”) the argument by a Postal Worker that he or she could not perform the full panoply of the essential elements of one’s job.  Being able to work the full 8 hours in the full description of one’s craft job, is what is required.  Otherwise, it is likely that you qualify for Federal Disability Retirement benefits under FERS or CSRS.

The National Reassessment Program is merely reflective of a wider economic trend; technological changes have altered the landscape of labor-intensive jobs; automation is the focal emphasis in every agency and department; budgetary considerations result in the “bottom-line” approach to personnel decisions.  Where does it all lead to, and what does it all mean for the Postal Worker?  If you believe that, after 20 years of faithful service, after having shown that you are a “good” employee, that such faithful loyalty will be returned “in kind”, while your naiveté may be commendable, your may be sorely disappointed in the manner in which the Agency will treat you.  If the NRP impacts you, you need to make some pragmatic decisions, and one of them may well be to file for Federal Disability Retirement benefits under FERS or CSRS.

Do you have a medical condition or disability which would qualify?  Often, the question is asked whether or not Psychiatric conditions are more difficult to qualify under the criteria of Federal Disability Retirement.  The spectrum of psychiatric conditions, from Major Depression, Anxiety, panic attacks, Asperger’s Syndrome, Bipolar Disorder, ADHD, Obsessive-Compulsive Disorder, etc., are all medical conditions which, if they prevent you from performing one or more of the essential elements of your job, would qualify you for a Federal Disability Retirement annuity.  Psychiatric cases are no more difficult these days than “physical” disabilities.

In this day and age, it is unfortunate but true, that there has arisen a contentious relationship – between “the Agency” and “the Postal Worker”.  Both are supposed to constitute a single organic entity, unified in purpose; but where the Agency has initiated a deliberate program to “weed out” those Postal Workers – regardless of the years of faithful service – who, because of an ongoing medical condition, are considered to be less than “fully productive”, then it is time for the Postal Worker, whether the Clerk, the Postmaster, the EAS Supervisor, the Maintenance Technician, the Electronic Technician, the Rural Letter Carrier, the City Letter Carrier, or the multitude of countless other important jobs performed at the U.S. Postal Service – time to tap into a benefit which has always been there, but has often been unused, underused or ignored:  Federal Disability Retirement benefits under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

US Postal Disability Retirement: Making the Right Decisions before Ending up At the Merit Systems Protection Board

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     Long before a Federal Disability Retirement case reaches the Merit Systems Protection Board, there were multiple decisions, reviews and considerations engaged in – both by the Applicant, as well as by the reviewing Agency, the Office of Personnel Management (OPM).  Why a particular disability retirement case ends up for an Administrative Hearing before an Administrative Judge at the U.S. Merit Systems Protection Board (MSPB), as opposed to one which gets approved at the Initial Application Stage, or at the Reconsideration Stage, depends upon a number of factors.  Who makes the decisions, considerations, and reviews such decisions at each step of the way, can often make the difference between whether a case gets approved at the OPM stage, or whether a case must go to a Hearing before the MSPB. 

     As an attorney who specializes exclusively in representing Federal and Postal employees to obtain Federal Disability Retirement benefits under FERS (Federal Employees Retirement System) and CSRS (Civil Service Retirement System), I have reviewed and been involved in all aspects of a Federal Disability Retirement application.  From Psychiatric conditions (ranging from Major Depression, Anxiety, panic attacks, Bipolar Disorder, Agoraphobia, etc.) to physical conditions (chronic and intractable Cervical and Lumbar pain, failed back syndrome, degenerative disk disease, plantar fasciitis, bilateral carpal tunnel syndrome, Lyme Disease, Rheumatoid Arthritis, Fibromyalgia, chemical sensitivity issues, Hepatitis, chronic liver and kidney diseases, visual impairment, to just name a few), as well as the combination of both (and, as an aside, many times depression becomes secondary to chronic and intractable pain precisely because of the profound and overwhelming fatigue which occurs on a daily basis), I have been able to obtain Federal disability retirement benefits for almost every medical condition there is.  This is because disability retirement is not so much concerned with a particular diagnosed medical condition, but rather, with the impact that such a medical condition has with one’s Federal or Postal job.

     At each stage in the process – from the initial application stage; if denied, then at the Reconsideration Stage; if denied, then on to an appeal to the Merit Systems Protection Board —  decisions were made as to what to submit, how to respond, and what information to provide in order to satisfy the legal criteria under the reviewing eyes of the “Disability Specialist” at the Office of Personnel Management.  Such decisions are crucial and critical, at each stage of the process, in terms of whether or not a Federal Disability Retirement application will or will not be approved.  Who makes the decision; how the decision is made; what is the right decision to make – these are all important considerations to take a seriously look at, for each stage of the process. 

     When a case ends up at the Merit Systems Protection Board, it is fair to say that somewhere along the line, a decision was made (or perhaps more than one decision) which did not persuade or convince the personnel at OPM to approve the case.  That is why it is important to hire the advice and counsel of an attorney who specializes in Federal Disability Retirement law.  Yes, money and expense is always a consideration.  But how much money and expense is lost if a case is denied, then denied again, and the case ends up at the Merit Systems Protection Board?

     Long before a Federal Disability Retirement case reaches the Merit Systems Protection Board, there were multiple decisions made.  It is important to make the “right” decision before it reaches the MSPB, and an attorney who specializes in Federal Disability Retirement law is helpful to that decision-making process.

Sincerely,

Robert R. McGill, Esquire

Postal Service’s Actions Can Sometimes Be To Your Advantage

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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 OWCP Danger of Complacency for the Ill or Injured Postal Worker

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I have had far too many calls by individuals who were complacent with being on OWCP/DOL temporary total disability compensation. The old adage, “Ignorance of the law is not an excuse”, is still generally true. It is the responsibility of the Postal employee to file for USPS Disability retirement benefits under FERS or CSRS in a timely fashion — within one (1) year of being separated from the Postal Service.  The fact that an individual is on the rolls of Worker’s Comp, receiving Worker’s Comp, receiving a scheduled award, going through rehabilitation or job retraining does not protect or extend the Statute of Limitations of 1 year.  Many people become separated from service without being properly notified.  A hint:  If you all of a sudden stop receiving those “Zero-balance” pay checks, chances are, you have been terminated & separated from service.  The burden is on the Federal employee to keep on top of things:  ask for your PS Form 50, or SF-50, whichever the case may be; call the Post Office or processing center on a regular basis to make sure that you are still on the rolls of the Agency.  If you have been separated from the US Postal Service, a personnel action should have been initiated.  From that moment — when you have been separated from Federal Service — you have one — I emphasize and reiterate — ONE YEAR from the date of separation from the USPS to file for disability retirement benefits.

Sincerely,

Robert R. McGill, Esquire