• 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.

A union official recently asked us about whether a non-preference eligible, non-managerial U. S. Postal Service employee can file an MSPB appeal to challenge the Postal Service’s actions such as sending an employee home with no hours under NRP. The following is an excerpt from a lengthier response provided to that official.

In Brehmer v. USPS, 106 MSPR 463 (2007) the MSPB ruled “We find that the rescission of restoration rights that were previously granted may constitute a denial of restoration within the meaning of 5 C.F.R. §353.304(c).” In other words, if a Postal employee is working limited duty because of an accepted industrial injury, and the Postal Service sends him or her home on the grounds that it no longer has any productive work for that employee, this can in theory be a violation of the employee’s right to be restored to his or her job after partial recovery from an industrial injury.

Getting MSPB to actually find such a violation of restoration rights in the context of NRP, however, may be difficult.

To establish MSPB jurisdiction over a restoration appeal as a partially recovered employee, the appellant must allege facts that would show, if proven, that: (1) he was absent from his position due to a compensable (work-related) injury; (2) he recovered sufficiently to return to duty on a part-time basis, or to return to work in a position with less demanding physical requirements than those previously required of him; (3) the agency denied his request for restoration; and (4) the agency’s denial of restoration was “arbitrary and capricious.” See Chen v. U.S. Postal Service, 97 M.S.P.R. 527 (2004).

To date, no MSPB judge has ever found that an employee’s hours being reduced or eliminated under NRP violated that employee’s restoration rights. The point on which every reported NRP case so far was rejected, either on a jurisdictional basis or after a hearing, was the 4th prong above – i.e., proving that the action taken was “arbitrary and capricious.”

Cases dismissed for lack of jurisdiction

Patricia L. Luna, 109 LRP 67863 (August 21, 2009) – MSPB Judge Grace B. Carter dismissed a claim by a non-preference eligible postal employee whose position had been eliminated by the NRP, finding that the Appellant had established the first three prongs as discussed above but not the fourth. Judge Carter stated: “Nowhere in her voluminous submissions has the appellant suggested that she could perform any vacant, funded, and operationally necessary position, other than the now-defunct modified position of lobby director. … [T]he appellant must do more than request work, or assert that she was sent home and not given duties.”

David Hunt, 109 LRP 75995 (September 10, 2009) – MSPB Judge Gerard C. Dasey dismissed a claim by a non-preference eligible postal employee whose position was eliminated under the NRP, for lack of jurisdiction. Judge Dasey found that the first three prongs, as discussed above, were met. However, he found that the Appellant had not established ‘arbitrary and capricious.’ He stated: “I find that this claim by the appellant falls short of an allegation that the agency s decision to send him home was arbitrary and capricious. The agency provided evidence that it has experienced a substantial reduction in workload due to various marketplace factors resulting in the need to eliminate 100 million work hours this [fiscal] year. … The appellant has not refuted any of this information. I find that the undisputed business and financial difficulties experienced by the agency further undermine the appellant s claim that decisions made pursuant to the NRP are arbitrary and capricious exercises of the agency s personnel authorities. The agency has also submitted evidence that the review of the appellant s limited duty assignment and the search for other operationally necessary work for his area were done according to the procedures required by the NRP. … The appellant did not refute that evidence. To the extent the appellant has argued that some of the tasks performed by him on his limited duty assignment are still performed by others, that does not constitute a non-frivolous allegation that the agency s decision to send him home was arbitrary or capricious.

Jaime Calderon, 109 LRP 72554 (September 24, 2009) and Robbie P. Jackson 109 LRP 76365 (September 24, 2009) – MSPB Judge Franklin Kang found that the appellants in these two cases, both of whom were non-preference eligible postal employees, had failed to provide facts that would show that there was work for him that consisted of operationally necessary tasks within his restrictions. The USPS had stated that the NRP was necessary due to the reduction in workload and that it was unable to identify enough available operationally necessary tasks within the appellant’s medical restrictions to continue his limited duty position. Judge Kang ruled that the appellant: “… does not provide facts that would show, if proven, that his supervisor untruly stated the positions did not exist, or that agency officials untruly stated they were unable to identify any available operationally necessary tasks within the appellant’s medical restrictions.” [citing Hogarty v. US Postal Service, 101 M.S.P.R. at 380 - appellant failed to make a non-frivolous allegation that agency officials untruly stated that no positions within her medical restrictions were available within a particular time period].

Cases remanded (back to the Judge) for further development

The Brehmer case, above, was not an NRP case. The MSPB Judge, in his initial decision, had found that the Board lacked jurisdiction over the restoration claim and so did not address whether the denial of restoration was ‘arbitrary or capricious.’ The case was remanded for that purpose and also to consider claims of constructive termination and suspension.

Douglas Gilbert v. Department of Justice, 100 MSPR 375 (November 9, 2005) – In this non-NRP case, the appellant met his burden of non-frivolously alleging ‘arbitrary and capricious’ behavior by his agency in denying his restoration, when he asserted that the agency had hired, and continued to hire, less qualified employees in positions for which he was qualified, and when appellant submitted vacancy announcements during the relevant period of time for a position within his commuting area.

Both the Brehmer and Gilbert cases settled after appeals resulted in the cases being sent back to the Judge for further proceedings.

Case denied after hearing

Angelita E. Casis v. USPS, 109 LRP 72652 (October 2, 2009) – MSPB Judge Glen D. Williams denied the appeal after a hearing. The reason this case went to a hearing is that the Appellant identified several positions that she felt she was qualified to perform, including a specific bid position she felt she should have been awarded. At hearing, the USPS proved that the clerk positions that the Appellant had identified at a different station, Sylmar, were awarded to employees who already worked at the Sylmar office who had, “superior claims to positions within their facility to the appellant’s claim.” With regard to the specific bid position the Appellant identified, mail processing clerk, the USPS was able to prove that it required physical activity beyond the Appellant’s capabilities. They further proved that no reasonable accommodation could be made to allow her to do the full duties of that position.

How can you win one of these cases?

It appears to be a losing argument at MSPB for the appellant to claim that the tasks being performed before work hours were reduced were operationally necessary. MSPB judges have accepted that the NRP is necessary due to reduced workload.

A general allegation that the NRP process is arbitrary and capricious has been similarly ineffective. In Elfreda M. Barachina v. USPS, Docket No. SF-0353-09-0554-I-1 (December 14, 2009), the Board specifically discussed a 2002 APWU Arbitration Decision as follows: “In her response, appellant argued that the NRP 2 process was inconsistent with a 2002 arbitration decision in which the arbitrator interpreted provisions of the agency’s Employee and Labor Relations Manual and collective bargaining agreement with the American Postal Workers Union, and found that limited duty rehabilitation assignments were not created for the purpose of meeting the agency’s operational needs. … We agree with the AJ that the appellant’s challenge to the NRP 2 process in general does not constitute a non-frivolous allegation that the agency acted arbitrarily and capriciously in her particular case.”

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.

IF YOU NEED MORE INFORMATION ABOUT THIS TOPIC, PLEASE CALL US.

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. 

 lf-usps-notice-of-no-work

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