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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

The Postal Treadmill: Taking the option of USPS Disability Retirement

For many years, the U.S. Postal Service has allowed its workers to remain productive by fashioning limited duty, modified positions for injured employees who were unable to perform all of the essential elements of the job.  To a great extent, those prior years of apparent accommodation (“apparent”, because such modified job offers were never legally sufficient accommodations) were analogous to a treadmill:  So long as the speed of the treadmill allowed for the Postal Worker to perform at his or her pace, consistent with the medical restrictions as allowed for in a “Modified Job Offer” or a “Limited Duty Job” as crafted in cooperation between (usually) three parties – the Postal Worker, the U.S. Postal Service, and the Department of Labor, Office of Worker’s Compensation – the injured Postal Worker was able to perform his or her job well, and remain productive.

Times have changed.

With the accelerated initiation and imposition of the National Reassessment Program, the Postal Treadmill has rapidly increased to exponential speeds, to the extent that most Postal Workers who have occupied a “Modified” or “Light Duty” position are asked to get off the working treadmill completely, and go home.  While filing for OWCP benefits is an option, such payments are tenuous and temporary at best, and at worst, will be denied. While Worker’s Compensation benefits pay well, the issue for the Postal Worker sent home because the U.S. Postal Service has found that a “search of its available positions” all of a sudden has resulted in a failure to find “available work” for the injured Postal Worker, is whether or not such a Postal Worker may qualify for Federal Disability Retirement benefits under FERS or CSRS.

The short answer to that question is, “Yes, in all likelihood”.

The Postal Worker needs to understand that, even during the time that he or she was working at a “Modified Job”, or a “Limited Duty”, that same Postal Worker was always qualified and eligible for Federal Disability Retirement under FERS or CSRS.

How could this be?

A person who is working in a “temporary” light duty position was never technically  “reassigned” to a new permanent position.   That same Postal Worker continued to remain in the same official job-slot, as reflected by the PS Form 50.  As such, the “Modified” or “Light Duty” job was always just a fiction.  It was a “made-up” position.  The fact that under the National Reassessment Program, the U.S. Postal Service could all of a sudden do away with all such positions, only proves the point:  There never existed a “Modified” or “Light Duty” position; it was always the same position, but on a separate piece of paper, the three parties involved – the Postal Worker, the Department of Labor/Office of Worker’s Compensation, and the U.S. Postal Service – simply “made up” the fictional position.

There is legal precedent already in place which establishes that a Postal Worker who occupied a modified or light-duty position is nevertheless eligible for Federal Disability Retirement benefits.  It was addressed by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001) — a case which I have previously discussed on many occasions, but one which is important to go over again.  In the case of Bracey, the Federal Circuit Court outlined the applicable provisions governing disability retirement, saying that “the pertinent OPM regulation elaborates on the statutory definition by providing that an employee is eligible for disability retirement only if (1) the disabling medical condition is expected to continue for at least one year; (2) the condition results in a deficiency in performance, conduct, or attendance, or is incompatible with useful and efficient service or retention in the employee’s position; and (3) the agency is unable to accommodate the disabling condition in the employee’s position or in an existing vacant position.”

It is this last point (Number 3) which is important to ponder and consider.  For, if the Agency is unable to accommodate the Postal Worker, and being placed in a “Modified” or “Light Duty” position does not constitute an “accommodation” (because there never was such a position to begin with), then the Postal Worker would be eligible for Federal Disability Retirement benefits under FERS or CSRS (assuming that all other criteria of eligibility are met).

Let us consider this further.  In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, in order for such reassignment to be an “accommodation”.  The Court went on to say:

“We Agree with Mr. Bracey that OPM’s argument fails, because the term “vacant position” in section 8337 refers to an officially established position that is graded and classified, not to an informal assignment of work that an agency gives to an employee who cannot perform the duties of his official position.  A ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.”  Id. at p. 1359
Then, the Court went on to state that the term “vacant position” means “something that is definite and already in existence rather than an unclassified set of duties devised to meet the needs of a particular employee who cannot perform the duties of his official position.”  Id. at 1360.

This is precisely what has occurred to the Postal Worker on the treadmill all of these many years – of NOT being reassigned to a new permanent position, but merely working in a temporary, light duty position. Furthermore, for the Postal Worker, the case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343,  10, 12-14 (2003) clarifies it even more, 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.” Id.,  14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id.

Sound familiar?  Sound like the Postal Worker who has been sent home under the National Reassessment Program?  For the Postal Worker who has been occupying a Modified or Light Duty position all of these many years, you may have thought that you were in an “official” position.  If that were the case, then that same Postal Worker would not be able to be sent home today.  The reality is that no such position ever existed.  The Postal Worker was never in an “official” position, other than the position which he or she always occupied:  that position which required you to perform all of the essential elements of a Clerk, a Letter Carrier, a Rural Carrier, a Mail Processing Clerk, a Distribution Clerk, a Mail Handler, an Electronic Technician, a Maintenance worker, a Sales, Service & Distribution Clerk, etc.

But since the Postal Worker on the daily treadmill was never able to perform all of the essential elements of the “official position”, it logically follows that the Postal Worker was always eligible – even throughout the entire time of working in a “Modified” or “Light Duty” position – to file for Federal Disability Retirement under FERS or CSRS.  Thus, for the Postal Worker who has been sent home, or is in danger of being sent home, because of the National Reassessment Program, a viable option to consider is to file for Federal Disability Retirement under FERS or CSRS.  You were always eligible; you just didn’t know it.