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

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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).
  10. 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

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

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”.

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

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.