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Addtnl & Alt Remedies for Disabled EEO Compainants & MSPB Appellants

1. What is Wrong With You?

What is the medical condition that you suffer from? Usually, this will be found under the diagnosis or impression section of a medical report. While a general statement that you are suffering pain in a certain area, such as ‘back pain’ is acceptable, a specific diagnosis is better. The report should also include a thorough discussion of the symptoms that you have that result from the diagnosed condition, and a discussion by the doctor of which symptoms the doctor has observed during clinical testing.

2. How does your doctor know what is wrong with you?
It is not necessary to provide objective evidence (x-ray, MRI, EMG, etc.) showing that you have a medical condition – but you should if you can get it. In a relatively recent Federal Circuit Court of Appeals case, Vanieken-Ryals, the Court made it clear that the Retirement Act does not distinguish between subjective (patient complaints) and objective medical evidence. If a medical doctor gives a diagnosis based on subjective evidence, OPM would have to show that the doctor’s credentials are somehow in question. While the law says that you don’t need objective evidence, the reality is that you really should try to get objective evidence if you can.It makes this much easier on the overworked folks at OPM

The majority of applications we see that are rejected are due to a lack of objective evidence. When we explain the law to the OPM representatives regarding the lack of distinction between subjective and objective evidence, the application is usually accepted. However, save yourself the hassle and get objective evidence if possible. Now, some medical conditions do not readily lend themselves to objective verification, such as psychological conditions and pain disorders. In those situations, it is important for your doctor to note that he/she believes that your subjective reporting of symptoms is valid and that you are not a malingerer – basically, that you are not faking.

3. How does what is wrong with you impact your ability to do your job?
You do not have to be totally disabled to get disability retirement. You must, however, show that you cannot do the essential functions of your position due to your medical condition. To that end, your application should include a statement from your doctor explaining what specific tasks that your diagnosed condition prevents you from completing. For example, if you have a repetitive motion disorder such as carpal tunnel syndrome, your doctor might feel that you are unable to type. I recommend giving your doctor a copy of your job description and asking him to include a paragraph in his report identifying the specific tasks you are incapable of performing.

If you are completely disabled from all work, the doctor must explain how your diagnosis prevents you from doing any work at all. This seems obvious, but this information is rarely included by doctors without their having been specifically asked to include it in a medical report. Doctors will typically place you off of work without writing a detailed explanation of why they are doing so.
The law does allow OPM to ‘connect the dots’ if your doctor has provided extremely detailed work restrictions. In general, it is best not to rely on them to connect the dots; but if your doctor refuses to identify specific tasks you cannot perform, detailed work restrictions should suffice

4. Have you followed your doctor’s recommended treatment plan?
An application for disability retirement can be rejected if the applicant has refused reasonable treatment that would be expected to make the condition no longer disabling. OPM often cites the lack of medical evidence that an applicant has pursued treatment for a disabling medical condition as a reason for denying the application. For example, if your doctor tells you that your back pain would no longer be disabling if you lost 20 pounds, and you have made no effort to do so, your application will likely be rejected. In most cases, it is sufficient to show that you have complied with recommended treatment including medication and therapy. Your doctor should include a history of treatment, detailing treatments that you have undergone.
You do not have to have surgery, even if it is recommended, in order to get disability retirement. Treatments that are inherently risky, such as surgery, or that are against your religious beliefs do not have to be pursued to remain eligible for disability retirement.
In some circumstances, an applicant’s injury or disease might be new, but catastrophic. In that situation, there will be very little or no history of treatment. Make sure your doctor indicates that even with treatment you are not expected to recover sufficiently to return to work within one year.

5. Are you expected to recover within 1 year of filing your application?
You do not have to have a medical condition that disables you permanently. All you must show is that your condition prevents you from performing the essential functions of your position and is expected to continue to prevent you from doing so for at least one year. For example, a broken bone in your leg would not typically be expected to disable you for more than one year. However, a compound fracture of your leg requiring multiple surgeries might very well prevent you from returning to a position that requires standing and walking for more than a year.
Many doctors will hesitate to predict whether you will be able to return to full duty within a year. You must ask for a statement as to whether your doctor believes, in his/her medical opinion, that you *will* recover within one year. If he or she cannot say for sure that you will recover within that time then he or she should say “I’m not sure

There are always exceptions and every medical condition and situation is different. If you submit medical evidence that includes these elements, your chances of having success on your initial disability retirement application are greatly increased.

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The above article was prepared by Daniel M. Goodkin, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public.

This article will not constitute legal advice, nor form an attorney-client relationship. Any such relationship shall only commence upon execution of an express written agreement between the client and the attorney. If you need immediate legal advice, immediate legal representation or think you may be subject to any time deadline whatsoever, please immediately telephone us, or another licensed lawyer. We can be reached nationwide Toll Free at (800) USA-6927, or in the L.A. Area at (805) 496-9777 or (818) 706-1555.

Postal Service employees faced with the Service’s downsizing moves, which include disabled employees having their hours reduced or being sent home from work under the National Reassessment Process (NRP), are understandably upset and worried by these developments.

The workshop was opened with an invocation and prayer by union vice-president Carol Sutton. Attorney Steven E. Brown of Westlake Village, California then made a lengthy presentation about employees’ rights, followed by a question-and-answer period in which he answered questions from individual employees and union officials.

After conclusion of the workshop, Ms. Sutton’s comments sent to Mr. Brown in a memo were: “The workshop was a huge success. The members and shop stewards remarked they all learned a lot. Thank you once again.”

QUICK SUMMARY OF POSTAL WORKERS RIGHTS TO WORKERS’ COMPENSATION AND DISABILITY RETIREMENT

Unlike many employees in the true private sector, Postal employees have very generous workers’ compensation and retirement options established long ago by Congress and the unions who represent these workers. These rights frequently come into play when Postal employees are sent home under the NRP.

Postal employees who have been injured on the job have benefits under the Federal Employees’ Compensation Act (FECA), which in 1916 established the workers’ compensation system for Postal and other civilian federal employees. This system is administered by the U. S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP). The benefit for “temporary total disability” is either 66-2/3% (with no spouse or dependent) or 75% (with spouse or dependent) of the employee’s basic pay. Basic pay for this calculation includes night differential, holiday pay, and Sunday pay, but does not include overtime. Since FECA benefits are not taxable, for most employees this benefit is about the same amount as their regular pay check.

“Total disability” under this law does not mean that the employee is unable to do any work at all. It just means that he or she cannot perform the normal job duties or any other alternative duties that are offered by the Postal Service. Since the Postal Service is either not offering any work to these employees, or is drastically reducing their hours, such employees are entitled to workers’ compensation benefits to cover the hours lost. Under the workers’ compensation law, when an employee is working limited duty due to an accepted industrial injury and the employer reduces or eliminates work hours, that employee is by definition “totally disabled” for those hours/days and entitled to FECA benefits to cover the wage loss, except in the relatively rare circumstance in which OWCP has already made a formal decision about the particular employee’s permanent “loss of wage-earning capacity”.

Many people who deal with OWCP find that Office unhelpful or downright hostile to workers’ compensation claimants (employees), their doctors, and their representatives. In order to obtain full benefits available under the law, it may be necessary to hire competent legal counsel such as Mr. Brown’s office which has successfully represented many thousands of injured federal and Postal employees.

Assuming the disability is permanent – namely, it is expected to last for at least another year – the employee is also entitled to apply for early retirement under FERS or CSRS based on disability. Many of the notices that employees receive from the Postal Service about “no available work” do not even mention this option. Unlike workers’ compensation, disability retirement is designed as a permanent, lifetime benefit. If disability retirement is approved, the employee will be able to keep his or her federal group health and life insurance permanently, and pay the low federal group premiums. In addition, the employee is allowed to earn up to 80% of the current pay rate of his or her last Postal job and still receive the full pension benefit. This means that the total of pension benefits and non-Postal wages can often exceed current Postal pay.

Many deserving disability retirement applications are denied due to error by the U. S. Office of Personnel Management (OPM) and/or due to improper documentation, which can usually be remedied by competent legal counsel either informally or at the hearing stage. Mr. Brown’s office has successfully represented many hundreds of injured federal and Postal employees in disability retirement applications, including appeals to the Merit Systems Protection Board (MSPB) when OPM improperly denied the applications.

In both workers’ compensation claims and disability retirement applications, there ar e strict (and differing) requirements about the type of medical and other evidence that must be presented. Most doctors find it helpful when their patient is represented by knowledgeable legal counsel, who can advise them what they must write in an appropriate medical report.

A lthough Postal workers may feel that the Service’s decision to send them home is unjustified and may be motivated by disability discrimination, these employees should be aware that there are several class action complaints currently pending at EEOC under which they may already be covered.  If they are included in the class of Postal employees being represented by class counsel, they cannot “opt out” of that class action, and their rights with regard to disability discrimination will be determined in that case instead of in any individual EEO complaints they might file. Nevertheless, such employees should file their individual EEO complaints in order to protect any rights they have that might not fall under one of the class actions.

IF YOU NEED ASSISTANCE ABOUT ANY OF THESE MATTERS, PLEASE CALL US - 805-496-9777

From: Steven E. Brown, A Professional Law Corporation

Voicemail: 1-805-496-9777; 1-800-USA-6927

If you are a Postal Service employee and have recently received a Notice like the one attached to this article (“Notice – Employees Without MSPB Appeal Rights” stating the Postal Service has no work available for you), you have legal rights of which you may not be aware.  Taking steps to exercise and protect these rights may be quite important to your financial future.

As the Notice mentions, if your work limitations were caused by an industrial injury you are probably entitled to receive FECA (workers’ compensation) benefits from OWCP for the time you spend at home when the Postal Service does not offer you any work.  Which form(s) you file, however, may impact the success of your claim for these benefits and/or the time delay before you start receiving benefits.  If you have received recent medical treatment for your industrial injury, of which OWCP is aware, we recommend NOT filing a CA-2a (recurrence of disability) form, but rather filing forms CA-7 (claim for compensation) and CA-7A instead.  It is usually more difficult to obtain payment of FECA benefits from OWCP when filing a recurrence claim using a form CA-2a, as opposed to just filing for benefits using a form CA-7.  Under the workers’ compensation law, when you are working limited duty due to an accepted industrial injury and the employer reduces or eliminates your work hours, you are by definition “totally disabled” for those hours/days and entitled to FECA benefits to cover the wage loss.  Our office has represented and counseled thousands of Postal employees in OWCP claims and can assist you in making sure you receive all the benefits to which you are entitled.    

Once you begin receiving benefits from OWCP, you will likely be referred for vocational rehabilitation. This process typically involves you being referred to a government-contracted vocational specialist who will then attempt to find you a job in the private labor market. The goal of the program is to provide some token training so that OWCP can identify a job in the private labor market that you can perform within your medical restrictions. Once they have identified such a job, they will provide some assistance in helping you obtain it. However, even if you do not get the job they have identified, they will still reduce your compensation based on a finding that you have the wage-earning capacity to perform that job. There are very specific rules for what kind of job can be found suitable for you. It must be within the injured worker’s medical restrictions, and the vocational rehab specialist must show that the injured worker has the necessary work experience or training to qualify for the position. The vocational rehabilitation counselor must also show that such a position is readily available near your home. Often, the vocational rehab counselor will identify a position that is not within the injured worker’s restrictions or qualifications. On the basis of such a determination, OWCP will often reduce compensation as if the injured worker took the position. Our office has represented many injured workers through the vocational rehabilitation process to ensure that the position identified for the injured worker is in fact “suitable” within the regulations and OWCP’s guidelines.

Assuming your disability is permanent – namely, it is expected to last for at least another year – you are also entitled to apply for early retirement under FERS or CSRS based on disability.  The Notice you received from the Postal Service does not even mention this option.  Unlike workers’ compensation, disability retirement is designed as a permanent, lifetime benefit.  If disability retirement is approved, you will be able to keep your federal group health and life insurance permanently, and pay the low federal group premium.  If you are granted disability retirement, you can still work at another (non-federal) job. So long as you earn less than 80% of the current pay rate of your last occupied federal position, you can continue to receive your full retirement benefit from OPM. We have found over the years that many deserving disability retirement applications are denied due to error by OPM and/or due to improper documentation, which we can usually remedy either informally or at the hearing stage.  Even though many applications for disability retirement are denied by OPM, we have filed and obtained such benefits for over a thousand Postal and other federal employees. Every one of these applications our office has filed in the last several years has been successful.   

In both workers’ compensation claims and disability retirement applications, there are strict (and differing) requirements on the type of medical and other evidence that must be presented. Most doctors find it helpful when their patient is represented by knowledgeable legal counsel, who can advise them what they must write in an appropriate medical report.  

Although you may feel that the Postal Service’s decision to send you home is unjustified and may be motivated by disability discrimination, you should be aware that there are several class action complaints currently pending at EEOC under which you may already be covered.  If you are included in the class of Postal employees being represented by class counsel, you cannot “opt out” of that class action, and your rights with regard to disability discrimination will be determined in that case instead of in any individual EEO complaint you might file. On the other hand, if you are not covered by those class actions you retain the right to file your own EEO complaint about the discriminatory treatment.  The decision about whether to pursue a disability discrimination complaint is best made after consulting an attorney, but if you’re not sure we advise that you file your request for counseling (which is the first step in the EEO process) immediately to avoid missing the 45-day filing deadline. 

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IF YOU NEED ASSISTANCE ABOUT ANY OF THESE MATTERS, PLEASE CALL US - 805-496-9777