• EEO Complaint

If you have been subject to the NRP since May 5, 2006 and were or are a permanent rehab or limited duty employee of the Postal Service, then you are likely already considered part of the McConnell class action law suit filed against the Postal Service because of the NRP. The Office of Federal Operations (OFO) defined the class as “all permanent rehabilitation employees and limited duty employees at the agency who have been subjected to the NRP from May 5, 2006, to the present, allegedly in violation of the Rehabilitation Act of 1973.”

For details of the McConnell class action, visit the website established by the attorneys representing the class, Thomas & Solomon LLP, at the following website http://www.nrpclassaction.com/.

We recommend that employees subject to the NRP still file an individual EEO complaint upon receipt of your NRP letter as many employees have issues that fall outside of the class action complaint, or they might not be members of the class. There is some question about whether the OFO’s definition of the class as including employees from “May 5, 2006, to the present..” means that employees subject to the NRP after the date of the OFO order (July 14, 2010) are automatically included in the class. Logically, they should be, but it is not clear. Worst case, the Administrative Judge handling your individual complaint will determine that you fall under the class action.

• Retirement

Retirement does not preclude participating in the McConnell class nor does it preclude any of the other options that will be discussed below.

Immediate “Regular” Retirement

An employee with the requisite age and years of service may simply opt to begin receiving his or her retirement. Please visit the Office of Personnel Management website for further details about the Federal Employees Retirement System (FERS) (http://www.opm.gov/retire/pre/fers/eligibility.asp) and the Civil Service Retirement System (CSRS) (http://www.opm.gov/retire/pre/csrs/eligibility.asp) age and years eligibility information.  Check with your HR department if you are unclear as to how many years of service you need based on your age.

Disability Retirement

If you do not meet the age and years requirements for immediate retirement under FERS or CSRS, you may still be eligible to begin receiving your retirement pension if your injury prevents you from rendering useful and efficient service in your position of record. Temporary or light duty positions that are composed of duties of various different positions within the Postal Service are typically not considered an employee’s position of record. Even if an employee has been working in a light duty position for years (even decades), his or her position of record is usually the position he or she was working when the injury that necessitated the light/modified duty occurred.  For example, if a letter carrier suffers a knee injury and can no longer deliver mail because of a medical condition, that letter carrier is likely to be eligible to retire on disability regardless of whether he or she has been working light or modified duty.  Further details about the type of evidence required to receive disability retirement, please review this article http://www.federal-law.com/medical-evidence-for-disability-retirement

• FECA claims

 Existing FECA claim

A detailed discussion of the rights of a worker who has an accepted FECA claim is contained http://www.federal-law.com/national-reassessment-process-at-the-postal-service. Briefly, an employee with an accepted FECA claim who is working light or modified duty because of the employee’s accepted industrial condition will be entitled to wage loss compensation if OWCP has not yet made a Loss of Wage Earning Capacity (LWEC) determination for that employee.

An LWEC determination establishes the amount of wages that an employee has lost based because of the employee’s work related injury. OWCP typically establishes LWEC by comparing the amount of money that an employee made pre-injury with what the employee is currently earning in the employee’s present position. Often, the Postal Service will continue paying an employee working light or modified duty at the same rate the employee was receiving on the date of injury, in which case the LWEC will be zero. The Employee Compensation Appeals Board (ECAB) has determined that in such a case, the termination of the light or modified duty position does not constitute a recurrence and therefore does not entitle the employee to begin receiving wage los compensation if the employee has an LWEC in place. (see K.R., ECAB Docket No 09-415 Feb 4, 2010) http://www.dol.gov/ecab/decisions/2010/Feb/09-0415.htm

However, there are several reasons why an LWEC determination can be overturned. One is if the employee’s medical condition has worsened. This can be shown through objective medical evidence showing a material worsening of the medical condition and corresponding decrease in the employees’ functioning, and/or if the LWEC was made on the basis of “makeshift” or “odd-lot” positions. For more details regarding what constitutes a makeshift or odd-lot position, please see the ECAB’s decision in A.J., ECAB Docket No. 10-619 June 29, 2010 (http://www.dol.gov/ecab/decisions/2010/Jun/10-0619P.htm). LWECs based on such positions are invalid. Please note that an employee can argue that the employee’s LWEC was made in error or that the employee’s medical condition has gotten worse even if the LWEC was established many years ago.  

New FECA claim

Some injured workers subject to the NRP have never filed FECA claims. The reasoning we have heard is that they were given light duty and did not want to jeopardize employment by filing a FECA claim. The general rule is that a claim must be filed within 3 years of the injury or within 3 years of the date of last exposure to the injurious condition or within 3 years of when the employee knew or should have known that the employee had a work related injury. This last issue often arises in cases of asbestosis where the condition is sometimes not discovered for decades after the last exposure.

An exception to the general rule is a situation in which the employee has disclosed the injury to his or her supervisor and has indicated that he or she feels that the injury is work related. If the injury and belief that the injury is work-related was disclosed to the employer within the 3 year period, a claim may be filed with OWCP even if the 3 year period has now passed. For example, we had an employee, a federal law enforcement officer, who had a heart attack in the late 1980s. His supervisor came and visited him at the hospital and our client told him he felt it was related to a high speed chase he was involved in earlier in the day. He recovered from the injury and went back to work. He did not file a claim at that time. Nearly 20 years later, he was still having issues with his heart and contacted our office. He obtained a statement from his supervisor at the time indicating that he was aware of the condition and that our client had stated he felt it was work related. We filed a new claim and it was accepted. So, it is not necessarily too late to file a new claim even if the 3 years have passed.

• MSPB Restoration claim

 A detailed discussion of the merits of filing a restoration claim are discussed in detail in this article NRP – MSPB litigation regarding restoration rights for USPS workers (http://www.federal-law.com/nrp-%E2%80%93-mspb-litigation-regarding-restoration-rights-for-usps-workers). Summarized briefly, an MSPB appeal of a Postal Service action sending home an industrially injured worker under NRP may serve as the basis of a successful case on the following grounds:

1. The agency must show that it did a search for a vacant, funded position that the appellant could perform, not just at his duty station, but within his general commuting area as well. Otherwise, the regulation’s requirements have not been met and the case should be set for hearing (see Irma Urena, Docket No. SF-0353-09-0650-I-1, December 14, 2009).

2. If the employee can show that there were vacant, funded positions that were available that he could do at the time he was removed, an MSPB Judge may find a violation of restoration rights.

However, cases that have been successful on the first ground do not necessarily lead to the employee being returned to a position within the USPS. The USPS just has to do a wider search after the case has been remanded. There is no guarantee that a wider search will find a position for the injured worker. So, although an employee may win at MSPB, it may ultimately turn out to be a hollow victory.

Summary

As you can see, there are many options available to injured workers targeted by the NRP. None of the options listed above is mutually exclusive. That is, one can file a FECA claim, disability retirement claim, EEOC claim and restoration claim at the same time. Please contact our office if you have questions about or require assistance with any of the above options. We will be happy to arrange for a consultation where we can review your specific situation and discuss which options are the best for you.

NELA conference powerpoint 2010w

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.

——
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.

In denying the Agent’s initial application, OPM had stated that he had failed to show he was injured before he was placed on administrative leave. The Board ruled that the Office of Personnel Management (OPM) should have considered whether the injured worker became disabled at any period during his employment, up to and including the period of time that he was on administrative leave.

The employee had introduced uncontested medical evidence showing that he had several herniated discs. The Board found that the claimant had “presented an overwhelming body of consistent and competent medical evidence that corroborate[d] his subjective complaints, and [established] that his medical condition [was] incompatible with either useful and efficient service or retention in his former position” (Henderson v. OPM, Docket No. AT-844E-08-0071-I-1, August 4, 2008 at p.14).

The Board therefore directed OPM to approve the disability retirement application.

The full decision can be viewed here: decision-8-4-08