Federal & Postal Disability Retirement: The Agency & the Individual

The National Reassessment Program (NRP) now implemented in full force, along with the Voluntary Early Retirement, the cash incentives (many have called to ask whether or not, if one is not eligible or offered the early retirement, but the cash incentive with a resignation is still being offered, should you take it?), and the Postal Service’s ultimate goal of shedding its payroll of anyone and everyone who is not “fully productive” by doing away with all “light duty” or “modified duty” slots (there actually is no “slot”, but rather merely an ad hoc set of duties “made up” on a piece of paper, which is what I have been arguing for years and years, and as the Bracey Decision by the Federal Circuit Court addressed) — all of these developments are merely a large-scale, macrocosmic level of what happens every day on an individual, singular basis. 

This is merely a reflection of an Agency, and how it acts, reacts and responds to injured workers, workers who have medical conditions which impact one’s ability to perform one’s job, and worker’s who are not “fully productive”.  It is merely that which happens every day to individual workers, but on a larger scale.  Think about it:  A Federal or Postal employee who develops a medical condition, and cannot perform one or more of the essential elements of one’s job; job performance soon begins to suffer, although perhaps imperceptibly at first; and the question becomes:  How will the agency, via its representative, the “Supervisor”, treat such an employee?  Sadly, more often than not, in a rough-shod, unsympathetic, and often cruel manner.  The Postal Service is simply doing it on a larger scale; but be fully aware, that every day, a Federal or Postal employee who is suffering from a medical condition, encounters such behavior and treatment — only, on a microcosmic, individual scale.

Sincerely,

Robert R. McGill, Esquire

Federal & Postal Disability Retirement: OWCP, SSD, NRP, Etc.

Nothing works in a vacuum.  Issues surround medical disabilities, the Federal and Postal workforce, Social Security Disability benefits, and Federal Disability Retirement benefits, as well as temporary total disability benefits received from the Department of Labor, Office of Worker’s Compensation Programs — they all intersect in one way or another, and the intersection of all of the issues create a maze of confusion which is often difficult for the Federal or Postal worker to successfully maneuver through the multiple landmines, dead-ends and potential traps.

Such intersecting difficulties also arise in what the Postal Service has initiated in the last few years — the “National Reassessment Program” — a euphemism for a massive attempt to get rid of anyone and anyone who is not fully productive.  Under this program, the Postal Service is essentially getting rid of all light-duty assignments; and, of course, such a program intersects with Federal Worker’s Comp, because many light-duty or “modified duty” employees are under the umbrella of OWCP-offered work assignments and modified positions and duties.  People are sent home with the reason given that there is no longer any “light duty” jobs; they are then instructed or forced into filing for OWCP benefits; whether Worker’s Comp will actually pay for temporary total disability is a big question mark.

Ultimately, I believe that the answer will be found in filing for OPM Federal Disability Retirement benefits. The NRP (National Reassessment Program) is simply a macrocosmic approach of a large agency (the U.S. Postal Service), mirroring a microcosmic approach (the approach of most agencies towards individual Federal or Postal employees who have a medical condition which prevents him or her from performing one or more of the essential elements of one’s job) in dealing with “less than fully productive” Federal or Postal employees.  Then, of course, there is the intersecting issue of filing for Social Security Disability benefits, which you have to do anyway, under FERS — but whether one actually gets it, is another issue.  All of these issues intersect; rarely are these issues isolated; the consequential impact of all of these issues need to be viewed in a macro manner.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Interaction with OWCP/DOL

I receive calls periodically as to whether it is of greater advantage to remain on Worker’s Comp (Department of Labor, Office of Workers Compensation Program — “OWCP”) as opposed to going out on OPM Disability Retirement.  My answer remains the same:  OWCP is not a retirement system; OPM disability retirement is indeed that — it is a retirement, where one is separated from Federal Service, and you go out and do what you want to with your life.  Every decision has consequences; every act which we engage in has inherent residual effects, and we have to balance such effects and consequences.  Thus, while OWCP benefits pay a higher rate (75% tax free with a dependent; 66 2/3% tax free without a dependent), there are restrictions:  You must comply with any and all requests (or demands) of the Department of Labor; you cannot go out and get another job, or start another career — because you are deemed “disabled” and are being paid for it.  On the other hand, OPM disability retirement pays less (for FERS, 60% the first year, 40% every year thereafter), but you have the freedom of retirement — you may go out and start another career, and make up to 80% of what your former position currently pays, without losing your disability annuity.  These — and many other factors — are some things to consider when weighing the differences between OPM disability retirement, and receiving OWCP/DOL benefits.

Sincerely,

Robert R. McGill, Esquire

Additional Guidance on Disability Retirement Supervisor’s Statement

Some have asked me whether acceptance of a temporary light duty assignment is of concern in a disability retirement application. If you look at SF 3112B (Supervisor’s Statement), Section E(3), the question is whether the employee has “been reassigned to ‘light duty’ or a temporary position?

If the Supervisor answers “No”, then of course there is no issue which would arise which would impact a disability retirement application; if the Supervisor answers “yes”, then it can actually be used as an argument for a disability retirement application, because it can be argued that the fact that the Agency has reassigned the applicant to a temporary “light duty” position is additional evidence of the acknowledgment by the Agency that the applicant could not perform one or more of the essential elements of one’s job, and therefore in such recognition, the Agency provided for a temporary light duty assignment. Acceptance of such an assignment is not a bar to disability retirement, precisely because it is not a “reassignment” to a “vacant” position, as required in the case of Bracey v. OPM.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be to Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency 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

Federal Disability Retirement and the Agency Cover of “Accommodation”

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