Tag Archives: postal service employee light duty forms

FERS Disability: The Federal and Postal Worker

Posted on by
Reply

As with most attorneys, I try to maintain an appearance of detached professionalism.  It is my job to provide sound legal advice; to guide the client/disability retirement applicant with logical argumentation, rational perspective, and legal foundations as to the strength or weakness of a case, and to guide my client over obstacles, around legal landmines, and through the briars and thickets of “the law“.

I try to remain aloof from the inherent emotionalism which arises from the human story of my clients, because not to do so would be to defeat the essence of why a client hires me: to maintain and retain an objective perspective, in order to provide the best legal advice possible.  However, to maintain that wall of professionalism is not always possible.

The human story of the Federal and Postal employee is indeed one of encompassing a juggernaut of loyalty, professionalism, dedication, hard work, and the driving force behind and undergirding the economic might of the United States.

Yes, of course the United States is built upon the economic principles of the free market system of the private sector; but the services which the Federal Government provides are not accomplished by some faceless or nameless entity; each such service — from the letter carrier through “rain, sleet or snow”, to the Special Agents who investigate and put criminals behind bars; from the border patrol agents who guard our security, to the IT Specialist who safeguards our internet viability — is provided by a competent and dedicated worker.

That is why I am often humbled by my clients; because, truth be known, the Federal Disability Retirement applicants who come to me have come to a point with his or her medical condition, where there is no other choice.  It is never a question of dedication or hard work; the Federal employee and Postal Service worker has already proven his or her dedication and hard work through the decades of service provided, prior to coming to me.

Sincerely,

Robert R. McGill, Esquire

 

OPM Disability Retirement: The Filing II

Posted on by
Reply

People often come to me at the 2nd (Reconsideration) Stage, or the 3rd (Merit Systems Protection Board) Stage, and ask that I correct the mistakes made in the initial filing. Most mistakes can be corrected. Of course, it would have been better if the Applicant had done it properly the first time, for once the Office of Personnel Management views something which should not have been submitted, it cannot be easily retracted — only further explained.

There are, moreover, certain mistakes which cannot be “explained away” — such as deliberate omissions or deceptions. Thus, if the Office of Personnel Management gets the idea that there is an element of deceptiveness in a disability retirement application — either through omission or deliberate avoidance of an issue — then it becomes a difficult case to win. Honesty is always the best policy, and no Disability Retirement applicant should ever engage in any act of covering up any information. This is conceptually different from emphasizing the elements in a disability retirement application which favor an approval, as opposed to de-emphasizing those elements which tend to obscure the primary elements of an application. Such artful emphasis/de-emphasis should always be a part of every disability retirement application, coordinating the Applicant’s Statement of Disability with supporting medical documentation, to convey a consistent “whole” to the Office of Personnel Management.

Sincerely,

Robert R. McGill, Esquire

Recurring issues of FERS & CSRS Disability accommodation and light duty questions

Posted on by
1

The issue of Agency Accommodations — whether or not an agency can truly “accommodate” an individual; what constitutes a legal accommodation as opposed to temporary light-duty arrangements which do not constitute legally viable accommodations under the standards as expressed in Bracy v. OPM and other cases — keeps coming up in the form of questions and concerns.

Let me just state a few thoughts: First, obviously, the best scenario is if the Agency checks off block 4(a) of SF 3112D, acknowledging that the “medical evidence presented to the agency shows that accommodation is not possible due to the severity of the medical condition and the physical requirements of the position.” Second, however, even if the Agency does not check off 4(a), it is not necessarily a problem, or even a valid concern. Agency Human Resources personnel are notoriously ignorant of the current case-law, and often mistake ad-hoc temporary assignments as constituting an “accommodation”, when in fact they represent no such standard or level of acceptability in disability retirement law. Finally, it is always mindful to remember that disability retirement is a medical issue, not one which is determined by non-medical personnel, and that is why it is important to focus first and foremost upon obtaining a legally sufficient medical narrative report.

Sincerely,

Robert R. McGill, Esquire

OPM’s Medical Questionnaire and the Issue of Accommodations

Posted on by
1

In this article, I will be addressing two separate issues: First, the issue of OPM’s Medical Questionnaire, and next, the issue of Accommodations.
 OPM’s Medical Questionnaire

At each stage of the process, an annuitant must always see his or her monthly annuity as a right which must be fought and protected. In recent months, I have seen an increase in cases where an individual has been an annuitant, but has lost his or her annuity because OPM’s Medical Questionnaire (sent out to selected annuitants every two years) was not taken seriously. Whether the increase is by coincidence — that a greater number of annuitants failed to respond to the Medical Questionnaire seriously, or because the Office of Personnel Management is scrutinizing annuitants more carefully — is irrelevant; what is relevant is that, whether you are fighting to obtain your disability retirement, or fighting to keep your disability annuity, the approach should always be consistently the same: be prepared to defend your disability annuity aggressively.

Some basic rules in responding to OPM’s Medical Questionnaire:

Rule #1: Take it seriously. Yes, the four questions seem fairly straightforward and innocuous: Get your treating doctor to provide current clinical findings based upon a recent examination; get a current diagnosis; a current prognosis; and finally, a clinical assessment of risk of injury or hazard to self if you returned to your former job. This all sounds simple enough, and it is, if you follow the first rule: take it seriously.

Rule #2: Don’t have your doctor send in the updated medical report directly to OPM without letting you first see it. I have represented more people for breaking this rule. Think about it — why would you allow a report to be sent to OPM without first reviewing it? Take responsibility; protect your disability annuity. Make sure the doctor is addressing the issues that need to be addressed – and properly.

Rule #3: Make sure that your doctor addresses the specific medical conditions for which you obtained your disability retirement. While you may have had 5 different disabilities that impacted your ability to perform your job when you first applied, when the Office of Personnel Management grants you your disability retirement, if the first one listed on your application qualifies you, they will grant you the disability retirement based upon that first disability, and will not proceed to consider the remaining 4 disabilities. In responding to OPM’s Medical Questionnaire, the disability annuitant must establish that he/she suffers from the same disability upon which the disability retirement was based, and that he remains unable to perform the duties of the last position he occupied prior to being granted disability retirement, or that his condition is incompatible with useful and efficient service or retention in the position. See Tompkins v. Office of Personnel Management, 72 M.S.P.R. 400, 404 (1996); Prestien v. Office of Personnel Management, 8 M.S.P.R. 698, 704-05 (1981). Further, an annuitant is not entitled to continuation of disability retirement simply on the basis that his physical condition is unchanged since he was granted disability retirement, where present medical evidence does not establish that he is disabled. See Dougherty v. Office of Personnel Management, 36 M.S.P.R. 117, 121 (1988). When I have represented a client and obtained disability retirement for my client, I send out a letter apprising the client of his future rights and obligations — one of them being, to keep in regular contact with his treating doctor, so that when or if a Medical Questionnaire is received, there is already an established doctor-patient relationship, and you don’t go about scrambling to find a doctor who is willing to write a responsive report to the Medical Questionnaire.

Finally, Rule #4: Keep it simple. The doctor’s response to OPM’s Medical Questionnaire need not be lengthy and complex: indeed, it can be a single paragraph, and refer to a recent examination, and include treatment or office notes, and simply state: Current diagnosis; symptoms; prognosis; and a statement that “X is still disabled based upon medical condition Y from his former job as a ________, and cannot go back to his former job because of his medical conditions.”

Thus, to reiterate: Take the OPM Medical Questionnaire seriously; keep in regular contact with your doctor; make sure the doctor addresses the medical conditions that you were found to be disabled for; and don’t allow the doctor to send it directly to OPM without first reviewing it.

Second Issue: Accommodations

Recent cases by the Merit Systems Protection Board continue to affirm the very important legal principle of protecting Federal and Postal employees from being assigned ad hoc, or “made-up” jobs, while still being slotted in the original position, as reflected in one’s PS or SF form 50. Just because you are offered a “modified position” that appears to be ‘official’, if you haven’t been reassigned to a vacant position that actually exists, then you are still eligible for disability retirement. Don’t be fooled. In the recent case of Cadman v. OPM, Docket No. CH-844E-07-0002-I-1, the Merit Systems Protection Board, upon a Petition for Review by the Appellant, again revisited this issue, and again referred to the important case of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003). In Ancheta, 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., at p. 14. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.” Id. Thus, what the Board in Ancheta was saying, and reaffirmed and reiterated in Cadman, is that the “made-up” job that the Postal Service puts on an “official-looking” Modified Job Offer Sheet, is in all likelihood not an accommodation. This is true of jobs in non-Postal Federal Agencies, also.

The Board’s holdings in Cadman and Ancheta, and the long line of such legal reasonings, clearly strengthen Postal and Federal employees’ rights concerning disability retirement, when placed in the context of longstanding law as held by the Federal Circuit Court in Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001). I have previously addressed this issue in my other articles, of course, but let me reiterate that in Bracey, the Federal Circuit Court delineated and outlined the applicable provisions governing disability retirement, stating 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.” In Bracey, the Court clearly stated that an employee must be reassigned to a “vacant” position, and not one which was merely “made up”, and the reasoning of the court is clear: the Court Stated:

“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

Further, 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.

Putting Bracey, Ancheta, and Cadman together, Federal and Postal employees have a formidable argument which protects their disability retirement rights: When you become medical unable to perform one or more of the essential elements of you job, as outlined in your position description, Agencies cannot leave you in the same job slot and make up different things for you to do. The idea of ‘accommodation’ is a term of art, and must not be viewed in the way that the ‘general public’ might view it: if you have a medical condition or disability, and your employer says that the Agency has ‘created’ a position that somehow does away with those essential elements of your job that you cannot do anymore, that is NOT an accommodation. In fact, an accommodation is the very opposite: it is where the Agency provides some means such that you CAN continue to do all of the essential elements of your job.

I know that I keep reminding you of this, but I think that it is worth repetitive reminders: Disability retirement is a benefit that all Federal and Postal employees signed onto when you became employed. Many private sector jobs don’t offer this benefit, but then, such private sector jobs of equivalent positional requirements often pay more in base salaries. It is one of the benefits you acquired — a right — in the event of a medical condition or disability which prevents you from continuing in your career. As such, when you can no longer continue in your Federal or Postal job, you must look upon disability retirement as a right and an investment for your future — one which must be aggressively sought after, and once obtained, protected with similar diligence and aggressiveness.

I am an attorney who specializes in representing Federal and Postal employees to obtain and retain disability retirement benefits. Like the giraffe, you cannot allow for appearances to fool you; you must always and aggressively protect your rights and future. The leopard is known for quickly and aggressively capturing its prey; the camel is known for long and sustained trips. You need to be both a leopard and a camel – to pursue your future investment aggressively, and to sustain your investment for a long time into the future.

For more information, contact me in one of these ways:

 

 

Sincerely,


Robert R. McGill, Esquire

Federal Disability Retirement and the Agency Cover of “Accommodation”

Posted on by
1

I am receiving too many phone calls from people who have been fooled by his/her Agency that they have been “accommodated”, and therefore they cannot file for disability retirement. From Federal Workers at all levels who are told that they can take LWOP when they are unable to work, to Postal Workers who are given “Limited-Duty Assignments” — all need to be clear that your are NOT BEING ACCOMMODATED, AND THEREFORE YOU HAVE A RIGHT TO FILE FOR DISABILITY RETIREMENT. Let me clarify this issue by first discussing the important case-law of Bracey v. Office of Personnel Management, 236 F.3d 1356 (Fed. Cir. 2001). Bracey was, and still is, a landmark decision — one of those cases that pushed back the attempt by the Office of Personnel Management to create a broad definition of what “accommodation” means, and thereby try and undermine a Federal and/or Postal Employees’ right to disability retirement. 5 U.S.C. 8337(a) states that a disabled employee is eligible for disability retirement unless the employee is able to render “useful and efficient service in the employee’s position”, or is qualified for reassignment to an existing vacant position in the agency at the same grade or level. What this basically means is that, if you have a medical condition and you cannot do one or more of the essential elements of your job, you are entitled to disability retirement unless your Agency can (a) do something so that you can continue to work in your job, or (b) reassign you to an existing vacant position at the same pay or grade (all of those words are key to understanding the Bracey decision). As to the first issue, if your medical condition, either physical or psychiatric, is impacting your ability to perform the key functions of your job (in other words, “useful and efficient service” means that you must be able to perform the “critical or essential” elements of your position), then it means that you are eligible for disability retirement — unless the Agency can reassign you to an existing vacant position (the second issue). As to the second issue, what the Court in Bracey meant is that there has to be an actual position existing, which is vacant, to which a person can be reassigned and slotted into, at the same pay or grade.

In Bracey, the Office of Personnel Management was trying to have it both ways: they argued that (a) an individual is “accommodated” if he can do his “job”, and the “job” which the Agency was having Mr. Bracey do was a “light-duty” job that was made up by the Agency. As a result, the Office of Personnel Management had denied Mr. Bracey’s application for disability retirement, and the case reached the Merit Systems Protection Board, and then to the U.S. Court of Appeals for the Federal Circuit on appeal. More recently, Agencies have been trying to convince Federal workers that they can take “Leave Without Pay” and work less hours; or revert to part-time status; or perform some other functions — and this constitutes an “accommodation”. Or, in the case of Postal Workers, especially those who have intersecting OWCP issues, one is often told that “Limited-Duty Assignments” constitute an “accommodation”. However, for the latter, it is important to review such assignments — does it include jobs from another craft? Are you offered a new “Limited Duty Assignment” each year, or every two years (which would imply that it is not a permanent assignment)? Can a new supervisor or Postmaster come in tomorrow and declare that there are no longer any “Limited Duty Assignments” available (which is often the case)?

Remember that 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. The ‘resulting position-classification’ system is ‘used in all phases of personnel administration’. 5 U.S.C. 5101(2)” (Bracey at page 1359). It cannot be a position “consisting of a set of ungraded, unclassified duties that have been assigned to an employee who cannot perform the duties of his official position.” Id.

Similarly, for Postal employees, you cannot be slotted in your craft position, but then be given duties crossing over from other crafts; and you cannot be told that you have been slotted into an already existing “vacant” position, but then be offered the same “Limited-Duty” position a year later. If it was truly a permanent “vacant” position, why would you be offered the same position a year later?

Remember that under 5 C.F.R. Section 831.502(b)(7), an offered position must be, among other things, of the same tenure as the position from which the employee seeks disability retirement. “Tenure” is defined at 5 C.F.R. Section 210.102(b)(17) as “the period of time an employee may reasonably expect to serve under his current appointment.”

If you are a Federal or Postal employee, and you find this discussion about the Bracey decision to be somewhat confusing, do not let the complexity of disability retirement laws keep you from inquiring about your eligibility. In its simplest form, disability retirement is about 2 issues: Are you able to perform the essential elements of your job? If not, Can your Agency slot you into an already-existing position at the same pay, grade and tenure, and not just in some “made up” position that hasn’t been graded and classified”? If your answer is “No” to both questions, then you are entitled to disability retirement benefits.

As true with all things in life, it is always better to affirmatively act with knowledge, especially knowledge of the law. Like the Tibetan proverb, to act without knowledge of the law is to act blindly. To fail to act, or to allow your circumstances to control your destiny, is to allow your Federal Agency or the U.S. Postal Service to dictate your future for you. If you are disabled, and unable to perform the critical elements of your job, then you should consider the option of disability retirement. Opting for disability retirement does not mean that you can no longer be productive in society in some other capacity; indeed, you are allowed to receive a disability annuity and go out and get another job, and make up to 80% of what your position currently pays. Opting for disability retirement merely means that you have a medical condition which is no longer a good “fit” for the type of job you currently have.

My name is Robert R. McGill, Esquire. I am a duly licensed Attorney who specializes in representing Federal and Postal Employees, to obtain disability retirement benefits through the Office of Personnel Management. If you would like to discuss your particular case, you may contact me at 1-800-990-7932 or email me at federal.lawyer@yahoo.com, or visit my website at www.FederalDisabilityLawyer.com.

 

Robert R. McGill, Esquire