by Attorney Robert R. McGill, Esquire
It is always dangerous for “outsiders” to convey lessons learned to “insiders”, especially when the vicissitudes of deteriorating employment conditions within the U.S. Postal Service over the past decade have accelerated by exponential warp-speed. But when it comes to the specific area of filing for Federal Disability Retirement benefits, it is perhaps having a more “objective” perspective which can be of insightful assistance for the Postal employee (and by implication and truncated entrapment, Federal employees who are non-Postal, but under the same system of FERS, CSRS or CSRS Offset).
With that said, the following lessons will hopefully provide some guidance for Postal employees seeking to file for Postal Disability Retirement benefits through the U.S. Office of Personnel Management. The basic eligibility criteria can be accessed through more conventional means; the following are the more “nuanced” issues which the Postal employee will likely encounter in the course of preparing and formulating a Postal Disability Retirement application, but which may not be as readily accessible or self-evident. We begin with a query, and an answer as to each:
Will the Postal Service Accommodate me? The short answer is: No. Can they, or will they, provide “light duty”? The consensus is that, every now and then, a particular Postal Facility may allow for limited duty, and the Postal worker will end up coming in, performing some menial duties which have no direction or purpose, leaving aside any design of thoughtfulness. More likely, there will be a piece of paper which identifies the medical limitations, that the named individual will not be lifting over X-number of pounds, or will not be engaging in any singular repetition of ergonomically-challenging physical exertion; everybody involved will sign and acknowledge the piece of paper, smile with a joyful, toothy grin, and thereafter, will forget its very existence. In other words, the worth of the content is valued by the supply and demand of the paper itself.
When will the Postal Service officially separate me, once they have discovered that I am no longer able to perform one or more of the essential elements of my craft duties? The simply answer is: When they feel like it; when they get around to it; when the graph on a spectrum and chart is such that it is more trouble to keep a Postal employee on the LWOP status list, buried deep in the database of an un-encrypted electronic file, than it is to generate a PS Form 50 to initiate a personnel action separating and terminating the Postal employee. Or, put in other terms, if it appears that the local chapter of the Postal Union is more vociferous than the mellifluous tonality comfortably enjoyed by management on average, then all things being equal, no action will be taken. If, on the other hand, it takes less effort to initiate a removal action than not, then sometime in the next 12 months, a button might be pushed and the result will be a stoppage in receipt of those 0-balance paystubs. Thus, the lesson to be gleaned from all of this: You may be on OWCP and receiving benefits of temporary total disability payments, but keep in mind that OWCP is not a retirement system, and has never been set up as such. Therefore, be aware that once those 0-balance paystubs stop appearing in biweekly intervals, the Statute of Limitations for filing a Federal/Postal Disability Retirement Application with the U.S. Office of Personnel Management begins to toll, for the Postal employee is limited to the timeframe of filing for Federal/Postal Disability Retirement benefits within one (1) year of being separated from the Postal Service.
The Human Resources Shared Services office in Greensboro, North Carolina is telling me that there is no need to hire an attorney in order to file for Federal Disability Retirement benefits – that they will send out the “Blue Book”, which contains all of the necessary forms, as well as set up a “counseling session” to help guide me through the entire process. Is this true? All of that may be true, but keep in mind the following: First, don’t expect that, if your Postal/Federal disability retirement application is denied at the First Stage of the Administrative/Bureaucratic process of filing for Federal Disability Retirement benefits, that you will be given any sympathy from H.R. Shared Services. No one there will take responsibility for a denied Federal Disability Retirement application; there will be no one to guide you as to what was wrongly done, what documentation was insufficient, and suddenly, the “you don’t necessarily need an attorney” will take on a marked tone of indifference and shifting of responsibility, where the echo chamber of unheard voices will be: “It is not our problem”. Second, while everyone at H.R. Shared Services is surely as nice as can be, they are unequipped to provide legal advice in preparing, formulating and filing for Federal/Postal Disability Retirement. And, do not be mistaken: filing for the benefit of Postal Disability Retirement is a “legal” process just like any other, contrary to what H.R. Shared Services may state, and certainly as opposed to how the U.S. Office of Personnel Management approaches every Postal and Federal Disability Retirement application. Third, and finally, H.R. Shared Services is never able to provide guidance beyond the superficial appearance that a Postal Disability Retirement packet is “complete”. Yes, they can ensure that each form is filled out, signed, properly dated, and check upon the inclusion of all necessary forms required; they cannot, however, render an opinion as to the relevance and substantive viability of the application itself, nor the documentary import of any attachments provided.
H.R. Shared Services tells me that I must file for Social Security Benefits, first, before I can file for Postal Disability Retirement benefits. Is this true? The short answer: No. More Postal Disability Retirement applications have been delayed, or otherwise left in limbo because of this misinformation provided, courtesy of the U.S. Postal Service. The fact is, that the U.S. Office of Personnel Management does require that Social Security Disability benefits be filed – but only for purposes of coordinating any concurrent benefits which might be received upon an approval. For purposes of filing for Postal Disability Retirement benefits, all that OPM wants, and requires, is for a pro forma filing of a Social Security Disability application, with a receipt showing that one has filed. There is no need to wait for a decision from SSDI. Of course, if in the course of waiting for a decision from OPM, SSDI is actually approved (which is rare, because of the higher standard imposed of “total disability”, as opposed to being unable to perform one or more of the essential elements of one’s positional duties), then there is a legal argument to be made under Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995), where the Court stated that ‘OPM and the Board must consider an award of Social Security disability benefits, and any underlying medical data provided to OPM by the Social Security Administration or the employee, along with any other evidence of disability, in determining entitlement to FERS benefits.’ Id. at 526.
And, finally, the fifth element: Can I get Postal Disability Retirement despite the fact that I am receiving VA Disability benefits, even if the basis for my Postal Disability Retirement is for the same injuries or medical conditions as my VA benefits? Short answer: Yes. Long answer: First, there is no offset or coordination of benefits between VA Disability payments and FERS/ CSRS Disability Retirement annuity. Second, it is often the case that there is an overlap of injuries or medical conditions that occurs between FERS Postal Disability Retirement and VA Disability issues. As “preexisting conditions” do not play a significant factor in a Postal Disability Retirement issue (presumably because eligibility requirements mandate that a FERS Disability Retirement applicant have a minimum of 18 months of Federal Service, which would mean that for at least a year and a half, whether a person suffered from a VA-related medical condition or not, that same person was able to perform all of the essential elements of the positional requirements prior to becoming “disabled” under the laws governing Postal Disability Retirement rules), so the overlap is an irrelevant factor. Furthermore, under Simpkins v. Office of Personnel Management, 2010 MSPB 52, DC-844E-09-0623-I-1, decided on March 18, 2010, the Merit Systems Protection Board stated that “OPM must consider an award of benefits by the DVA (Department of Veterans Affairs) based on the same medical conditions as the appellant’s disability retirement application…” As such, not only can you receive concurrent benefits from the Department of Veterans Affairs for parallel medical conditions, as well as under a FERS/CSRS Disability Retirement – you can also use the same basis for both. Now, as a practical matter, there is normally an increase of the percentage ascription of disability in the meantime – between the time of becoming a Postal employee and the time of filing for Postal Disability Retirement benefits (again, obviously, for at least a minimum of 18 months); but to reiterate: the same evidence used to get a VA Disability rating, or an increase of a prior rating, can be used for purposes of filing for Postal Disability Retirement benefits through the U.S. Office of Personnel Management.
These of 5 lessons learned in representing Postal employees in filing for Postal Disability Retirement benefits, whether under FERS, CSRS or CSRS Offset. Not necessarily the most important or significant of issues to be faced; nevertheless, they represent additional hurdles and obstacles which many Postal employees must face in the course of preparing, formulating and filing an effective Postal Disability Retirement application, to be submitted to the U.S. Office of Personnel Management for final determination – presently with an average “wait time” of 4 – 6 months from the time of having a CSA Number assigned at Boyers, Pennsylvania, en route to its ultimate and final destination in Washington, D.C.
About: I am an Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico. I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:
Email me at firstname.lastname@example.org
Call me at 1-800-990-7932
Robert R. McGill, Esquire