Tag: FERS Disability Retirement law for Postal employees

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The Covid-19 Nexus in a Federal Employee Disability Retirement Claim

Covid-19 and Federal Disability Retirement
Covid-19 and Federal Disability Retirement

This is a strange world we live in.  The Covid-19 Pandemic has impacted all sectors of the economy, devastated large segments of our society, ravaged the older generation and effectively shut down social interaction.  Federal employees and U.S. Postal workers may appear to be relatively unscathed because they remain employed, salaried and productive — much of it through teleworking arrangements.  Certain jobs, of course, cannot be accommodated through teleworking.  Thus, Air Traffic Controllers, Special Agents, TSA workers, Criminal Investigators, Correctional Officers, CBP Officers and a multitude of other positions do not easily lend to teleworking, and even those who have the limited capability of working from home must still come into the office to pick up mail, obtain files and otherwise interact and interface with other essential elements of the position.  Whether by actual consequences of the Corona Virus, or the potential thereof, Federal Disability Retirement must be an option open to Federal and Postal employees.

The laws governing Federal Disability Retirement are simple enough: A medical condition suffered while being a Federal or Postal employee, which results in a Federal or Postal Worker being prevented from performing one or more of the essential elements of one’s position.  In the well-known case of Bruner v. Office of Personnel Management, 996 F.2d 290, 293 (Fed. Cir. 1993), the U.S. Court of Appeals there clearly stated the applicable standard for disability retirement determinations, stating therein that one of the criteria was the demonstration of a “deficiency in service with respect to performance, conduct or attendance, or in the absence of any actual service deficiency, a showing that the medical condition is incompatible with either useful service or retention in the position.”  How will the potentiality of Covid-19’s after-effects — of attacking those who are vulnerable because of underlying medical conditions — impact a Federal Disability Retirement application?  For, it is one thing to assert that a specific medical condition prevents a Federal or Postal employee from performing an essential element of one’s job; it is quite another thing to argue that, because of an underlying medical condition, a person cannot return to one’s position because, to do so will unreasonably endanger a person by being exposed to a deadly virus that has already proven to ravage and take advantage of pre-existing medical conditions.  Of course, if a vaccine were to be produced, such issues may become a moot point. Until then, however, the issue of Covid-19 and its impact upon a Federal Disability Retirement application remains fluid, at best.

Bracey v. Office of Personnel Management, 236 F.3d 1356, 1358 (Fed. Cir. 2001), of course, is another oft-cited case which clearly delineates the eligibility criteria for Federal Disability Retirement.  There, 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.” This 3-pronged clarification of the criteria for Federal Disability Retirement can be used in evaluating a case involving a Federal or Postal employee who suffers from underlying medical conditions which may potentially pose an unreasonable risk if exposed to the Covid-19 virus.  Take statutory criteria No. 1 — where the disabling medical condition “is expected to continue for at least one year”; are we referring to the underlying medical conditions in isolation from the potential impact of being exposed to Covid-19?  If so, unless the underlying medical conditions themselves prevent the Federal or Postal employee from performing his or her job functions, then it is unlikely that a Federal or Postal employee will become eligible for Federal Disability Retirement benefits in connection with the Corona Virus issue. However, if a treating medical doctor places unequivocal restrictions upon a person’s ability to go to work because of the potentially deadly impact that exposure to the Corona Virus would have upon that person’s health, would that be enough to qualify for Federal Disability Retirement benefits?  Especially, if no vaccine or reasonable treatment regimens have been discovered?  This is an open question that may have to be “explored” with test cases which will surely come about in the very near future.

With respect to criteria 2 & 3 of the Bracey decision, the same arguments would apply, of course.  Non-attendance and deficient performance because of a medical restriction imposed by a treating doctor upon a Federal or Postal employee with a compromised immune system, underlying medical conditions such as diabetes or preexisting respiratory illnesses, etc., will no doubt be a basis for filing a Federal or Postal Disability Retirement application.  Similarly, no Federal Agency or Postal facility will be able to guarantee that an “accommodation” can be provided where exposure to the Corona Virus will be prevented; for, in many instances, such exposure would essentially be a death sentence.  “Incompatibility” is the “4th” standard in a Federal Disability Retirement application, when a Federal or Postal employee lacks any deficiencies in performance, conduct or attendance, but where a person’s medical conditions are no longer consistent with continuation in a Federal or Postal position.

Additionally, the question for the future will be — to what extent can a Federal Agency “accommodate “the potency and potentiality of a deadly disease?  And, on the flip-side, what is a “reasonable” level of risk that a Federal or Postal employee who has an underlying medical condition must face before the law concludes that you are eligible for OPM Disability Retirement benefits?  These are, ultimately medical questions insofar as one’s treating doctor will have to weigh the severity and extent of a person’s underlying medical condition, and balance such medical facts as against the risk of exposure to the Covid-19 virus and the potential resulting consequences.  As more and more information is gathered by the Centers for Disease Control and Prevention and the rest of the medical community, some of these questions surrounding Federal Disability Retirement, accommodation needs and inherent risks in performing one’s Federal job or Postal craft will become clarified.  Ultimately, however, when preparing a Federal Disability Retirement application under FERS which involves a Covid-19 issue — whether of its potential danger because of an underlying medical condition or its direct impact because it involves a Federal or Postal employee who has already contracted and suffered from its toll — a proper nexus must be established that connects all of the “dots” between the medical conditions involved, the essential elements of one’s Federal or Postal position, and the ability and capacity of a Federal Agency or Postal facility to properly “accommodate” a person’s medical conditions.

The Covid-19 Virus is, as many have characterized it, invisible, deadly, and still mysterious.  What impact it has upon Federal employees and Postal workers who suffer from co-morbidities which, in and of themselves may not qualify for Federal Disability Retirement benefits; the extent of the potential for serious medical consequences if one contracts the Corona Virus; and the type of reasonable accommodations which must be offered by a Federal Agency or the Postal Service — these are still open-ended questions to be answered, perhaps by rulings in cases at the U.S. Merit Systems Protection Board.  In the end, Federal employees should not have to face a choice between one’s job and the potentiality of exposure to the Covid-19; but in preparing an effective Federal Disability Retirement application involving the Corona Virus and its potential impact, a proper nexus will have to be established to show that an incompatibility exists between one’s Federal or Postal job and the medical risks involved.

 

About the Author

Robert R. McGill is an expert advisor for Federal Disability Retirement claims, a highly specialized legal practice which he, as a Federal employee attorney, dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his Federal Disability Retirement blog.

 

This article was originally published in the HG.org directory (5/14/20)

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Postal Employees with Disabilities

Dog attacking Postal employee
Dog attacks can cause permanent damage, including disfigurement, nerve and tissue damage, and psychological trauma that can last for years.

Postal employees with disabilities comprise a challenge unique to the group as a whole, precisely because of the inherent nature of the physical requirements of the work itself.  Compounding this problem is the added difficulty of restricted access to vital information concerning options and benefits accessible — such as being eligible for Federal Disability Retirement benefits.  Whether restricted access is deliberate and intentional (as one can extrapolate from the recent EEOC ruling concerning the National Reassessment Program and the systematic campaign perpetrated by the U.S. Postal Service to shed its rolls of employees who required special accommodations) or resulting from a centralized bureaucracy (where the single source of information is retained at a facility at the H.R. Shared Services in Greensboro, North Carolina), the plain fact is that many Postal employees don’t even know that they may be eligible for Federal Disability Retirement benefits under 5 U.S.C. 8451, et seq.

     Confusion abounds.  Life itself is confusing enough.  The old idiom about “the straw that broke the camel’s back” aptly describes the stresses of modernity.  We live in a stress-filled world; our daily lives are filled with so much busy-ness that we can barely attend to those things that are most important:  Our jobs; our ability to maintain our finances; our kids and meeting their needs; our relationships, and meeting our own needs.  Then, when a medical condition hits, it becomes the “last straw” that seemingly tears apart the fragile fabric that kept everything seamlessly together.  Homophones — “seems” and “seams” — applies to our daily lives.  We give the outward appearance — “seems” that we have everything put together — “seams” — when in fact what seems to be the case is a matter of seams that are stitched together in a haphazard manner.

 

We always think that it will never be “me”; that the misfortune we hear about — whether through anecdotal evidence, in the newspapers, or perhaps through word-of-mouth about a family member who has been hit with tragic circumstances — is something distant and will somehow never entangle or intrude upon our own lives.  We buy insurance policies against disasters, but never think we will ever have to activate them.  We eat meals “on the run”, knowing that we aren’t really taking good care of ourselves, but mistakenly thinking that the human body is strong enough to withstand some short-term mistreatment — until the days we do it turn into weeks; the weeks, aggregate into months; and the months become years and into decades of maltreatment.  The youthful notion of invincibility and immortality somehow betrays our own inner sense of guilt.  Then, the inevitable occurs:  a medical condition hits us unexpectedly.  But was it ever really unexpected?

 

The nature of the Postal System itself is contrary to human nature.  The repetitive tasks required of most jobs, whether in the “Clerk Craft” or the carrier craft — and whether as a Rural Carrier or a City Carrier; as a Flat Sorter Clerk, a Mail Processing Clerk, a Distribution Clerk or a Sales, Service and Distribution Clerk or any number of related clerical jobs, the plain fact is that all of the “crafts” involved go against the grain of human dynamics in repetitive usage of the human anatomy.  GM and Ford have robotic arms to open and shut the doors of a new vehicle to test the viability and longevity of manufactured parts.  If something fails, the mechanical part can be replaced.  For human beings, the “mechanical part” is a series of bones, tissues and cartilages that — while repair is possible — can never be fully replaced once damaged or injured.

 

Most Postal employees are familiar with OWCP/Department of Labor benefits.  There is a general notion that if a Postal employee is injured on the job, there is a benefit that is accessible.  The idea that there must be a causal nexus proven in order to qualify for OWCP (“Worker’s Compensation”) benefits is generally understood.  Thus, if a person becomes injured while “on the job”, being compensated both for the injury itself as well as the loss of wages is fairly routine.  But what about the door handle that snaps off of the automobile after the 10,000th pull?  What happens if the knee begins to degenerate or the shoulder becomes beset with a chronic ache, slowly turning into a sharp pain?  Can causality be so easily proven?  Can it be proven that it is an “occupational disease or injury” that is “caused” by the particular type of work that the Postal employee has engaged in for multiple years?

 

Even if can be proven, how long will OWCP continue to pay the Postal employee until the Department of Labor does one of two things:  (1) Assign a “Second Opinion” doctor (i.e., a so-called “Independent Medical Examination”) and deem that you are sufficiently recovered and ordered to return to full duty, or (2) find a job in the private sector that the (now former) Postal employee is considered “qualified” for, and deduct the anticipated yearly amount from the OWCP payments, thus ending one’s career? Is there an alternative?

 

Federal Disability Retirement is a benefit available for all Federal and Postal employees under FERS.  The medical condition or injury does NOT have to result from an “on the job” injury, nor from an occupationally-related disease or injury.  The medical condition, injury or disease can occur and be precipitated from a vacation, a skiing accident, an automobile mishap or any number of inconceivable incidents — and the mere fact that it is not “job-related” has no bearing on the eligibility criteria for a Federal Disability Retirement annuity.  In other words, “causality” is not an issue, for the most part, in becoming eligible for Federal Disability Retirement benefits under FERS.

 

Postal employees with disabilities face a unique challenge in our society, precisely because few other industries require the daily, intensive and repetitive utilization of the human anatomy in such a consistent, self-abusive manner.  What other position description requires the individual to engage in so many variables involving super-human efforts?  Of constant standing, bending, lifting, reaching, being able to lift packages and parcels weighing up to 70 pounds of asymmetrical and awkward dimensions, and to do it day in and day out in harsh weather and adverse circumstances?  It takes a healthy individual and tests the farthest limits of human durability and distance; and in the end, there comes a “breaking point” for even the strongest of the strong.  It is because of this that Federal Disability Retirement is an important benefit that remains accessible and available, and should be considered by postal employees with disabilities in this world where the robot cannot yet replace the human Postal worker in the efficient processing and delivery of our mail.

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his Federal Disability Retirement website.

 

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FERS Disability Retirement: Understanding the Legal Standard Will Help You Win Your Case

Legal standards of proof provide various levels of criteria which, depending upon the genus of law (e.g., administrative, civil, criminal, etc.), are an important factor to understand before entering the arena of legal battles.

Thus, generally speaking, the three most common applicable standards of proof which are recognized in law are:  Preponderance of the evidence; Clear and convincing evidence; and Beyond a reasonable doubt.  The conceptual demarcation between each of the three are obviously easier to recognize when the comparisons are between “preponderance of the evidence” and “beyond a reasonable doubt”, as opposed to making a comparative analysis between the first and the second, or between the second and third.  For, boundaries between levels of such standards, when close to proximal linguistic constructs, can overlap and create incestuous overlapping.  One can thus argue that where X is ‘clear and convincing’, it may also be beyond a reasonable doubt.  Whereas, to show that X is proven by a ‘preponderance of the evidence’ is a far cry from asserting that it is beyond a reasonable doubt.  On the other hand, for X to be beyond a reasonable doubt, would logically require that it is both ‘clear and convincing’ as well as ‘more likely than not.’  The higher standard always subsumes the lower ones, but the lower ones do not necessarily satisfy the higher ones.

While the theoretical application of such standards of proof are easy to discuss in an academic sense, it is always the “details” of how one goes about reviewing, analyzing and applying the evidence that betrays the true mechanical application in any legal forum.  In filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, the Federal or Postal employee attempting to prove the nexus between one’s medical condition and his or her medical inability to perform one or more of the essential elements of one’s job, needs to only “prove” the lowest of the three standards — that the evidence presented is more “likely” than not to be true.  For all Federal Disability Retirement cases are based upon the “preponderance of the evidence” standard of proof.

There is, as always, the academic, theoretical world of evidentiary standards, as opposed to the practical reality of application and practice.  In the theoretical world, academics and professors of law speak in terms of conceptual hierarchies and what constitutes satisfaction of a particular standard of proof.  In the practical world, where the actual battles are fought, lawyers and the applicants who are represented by lawyers in a Federal Disability Retirement case, must constantly contend with the issue of whether the applicable standard of proof — “preponderance of the evidence” — is being strictly adhered to.

The problem with standards of proof is always found in the details of such standards.  One would think that whether a piece of evidence, a medical report, the testimony of a doctor, or the lay person’s opinion on a matter, is “more likely than not” to be true, should be a fairly easy standard to meet.  Moreover, if there is no rebuttal evidence — and in a Federal Disability Retirement case, there is never any true rebuttal evidence — it should almost be a certainty that the appellant would prevail in such a case.  Given all of the above, how does one “lose” a Federal Disability Retirement case?

To begin with, the perversion of a standard of proof occurs with the insidious infiltration of inappropriate and invidious conceptual constructs — ones which are anathema to the paradigmatic understanding of the standard itself.  Thus, whereas the higher standard always subsumes any lesser standard of proof, the inverse should never be required in a case.   The standard of proof should always be weary of the introduction of terms which tend to elevate or denigrate the standard itself, and sanitation and inoculation against corruption of the proper standard is a necessary part of every case.  Since ‘precedence’ is what makes a case applicable for future use, the constancy of the standard of proof must remain true and unchanging.

One may argue that a piece of evidence X establishes that it is beyond a reasonable doubt that one is entitled to Federal Disability Retirement benefits; and since X meets the highest standard, by logical necessity, it must by definition meet the lower standards of ‘clear and convincing’ as well as ‘preponderance of the evidence’.  Obviously, the inverse would not be true — that to say that X establishes the satisfaction of the ‘preponderance of the evidence’ standard necessarily meets the criteria of ‘clear and convincing’ and ‘beyond a reasonable doubt’ standards; for the satisfaction of the lower does not entail the higher, whereas meeting the higher standards subsumes by logical domino effect each of the lower standards or proof.

In a very real practical sense, the Office of Personnel Management has the highest burden of proof to meet, precisely because they offer no evidence, or rarely offer, in a Federal Disability Retirement application.  Judges often have to be reminded that there is a wide chasm between (a) the question asked and (b) the answer given.  Questions do not constitute evidence; only answers are considered evidence.  How a question is asked, of course, can sometimes influence the evidentiary import of the answer, and the tone and inflection of a question can undermine the apparent believability of an answer.  But since OPM rarely, if ever, introduces any actual evidence in a Federal Disability Retirement application, it should be fairly easy for most Federal Disability Retirement applications to be approved.

“Preponderance of the evidence” is the lowest of the three standards of proof discussed herein.  Such a standard, by some interpretive perspectives, merely requires a showing that the evidence show that it is “more likely than not” that the Federal or Postal Worker is no longer able to perform one or more of the essential elements of one’s job.  Understanding the requirement of the applicable standard of proof will help the potential Federal or Postal worker who is considering filing for Federal Disability Retirement benefits, in assessing the quality and extent of the evidence needed to prove one’s case.  The danger, of course, is in thinking that, because it is a very minimal standard of proof, not much is needed to win.  One should never approach a Federal Disability Retirement case in such a de minimis manner.  It is better to keep in mind the principle mentioned above that the higher standard of proof subsumes by logical necessity the lower standard of proof.   That being said, it is best to prepare a Federal Disability Retirement case by setting out to prove the highest standard of proof; and by doing so, by logical necessity, practical application, and persuasive authority, one will ensure the best chance of success of obtaining a Federal Disability Retirement benefit.

FERS Disability Retirement is a lifetime benefit provided for the Federal or Postal worker who is (A) no longer able to perform his or her particular kind of job, as a result of a medical condition which prevents the continuation of such work or is otherwise inconsistent with retention in such a position, and (B) beset with such a medical condition which will last for a minimum of 12 months or more.  In order to become eligible, however, one must prove by a preponderance of the evidence that one is qualified for such a benefit.  In order to meet the qualification criteria, as set by statute and regulation, one must understand, and by understanding, meet the statutory requirements, of what is meant by “preponderance of the evidence.”  The legal burden of proof is that which determines the eligibility criteria; by understanding the legal burden of proof, one takes the first steps in preparing and formulating the basis for eligibility, and thereby securing one’s future.  Never take for granted that which one must prove; for the validity and value of “proof” is determined by the applicable standard of proof, and where such a standard is applied by judges — i.e., human beings who are imperfect and susceptible to persuasive rhetorical arguments — room for error must be factored in when preparing, formulating and filing for Federal Disability Retirement benefits, whether under CSRS or FERS.

Sincerely,

Robert R. McGill, Esquire
Federal Disability Retirement Lawyer

Original post date: 03/12/2012.   Last Updated October 11, 2019.

 

About the Author

Robert R. McGill is an attorney who specializes in Federal Disability Retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS.  For more information about his legal services, publications and forum, please visit his FERS Disability Retirement website.