Disability Retirement Reconsiderations

A sad fact of Postal life is the frequency with which letter carriers are being forced to seek early retirement due to disability. Some of this trend may be due to the fact that delivering mail is becoming increasingly difficult with expanding volumes and the effects of DPS work methods. We wear out on this job.

Carriers planning to seek disability retirement need to be aware that approval of disability retirements is not routine. Medical evidence of substantial incapacity is necessary. Retirement law, under 5 USC 8337(a) (CSRS) states: An employee of the USPS shall be considered not qualified for reassignment... if the reassignment is to a position in a different craft or is inconsistent with the terms of a collective bargaining agreement covering the employee. See also 5 USC 8451(a) (FERS).

Benefit Specialists for the Office of Personnel Management often decide such cases using a different and more stringent legal definition: A service deficiency caused by disease or injury of sufficient degree to preclude useful and efficient service in (1) your current position, or (2) a vacant position in the same agency at the same grade or pay level and tenure for which you are qualified for reassignment.

In practical fact, what happens is that an individual can become too disabled to carry mail but not satisfy OPM that he or she is sufficiently disabled to retire. This problem can readily arise when the physician for the applicant does not emphasize the incapacity strongly enough. Also, the OPM Benefit Specialists might not realize how hard our jobs are now becoming and how terribly difficult it is to move a disabled letter carrier into the clerk or other crafts.

It must be seen as an emergency when OPM rejects an application for disability retirement. At extreme risk are both income and health insurance for the disabled letter carrier, unless a successful reconsideration ensues.

A typical message of rejection will appear on OPM letterhead without so much as a title indicating that the claim is rejected. The applicant will figure that out in a paragraph or two, but the discussion is quite technical.

After reading through one or more additional pages, the reconsideration right is explained. Typically, this right is explained in a series of paragraphs, including the address of the Reconsiderations Branch. The appeal rights contain a warning that the reconsideration request must be received at OPM within thirty days of the date of the rejection letter. Any reconsideration request arriving after such time is in grave danger.

The Merit Systems Protection Board has ruled repeatedly on OPM timeliness issues, as these are the subjects of numerous appeals when retirements are denied for such reasons. A precedent in such cases is Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).

Under the reasoning in Alonzo, the MSPB will frequently excuse an appeal that is a day or two late as "inconsequential." However, a party must show that he or she exercised due diligence or ordinary prudence under the particular circumstances of the case. Although the Board noted in Alonzo that its regulations included no specific criteria for determining when good cause has been shown, it found that one of the factors that should be considered is the length of the delay in filing. The moral of the story is: File immediately and certify the letter for proof of mailing!

A Branch #1 case illustrates why. We sent in a reconsideration request nine days before its deadline by certified mail. It was received 10 days later at OPM, a day late! OPM accepted the reconsideration without question. We certainly could have shown we acted with due diligence.

An employee who fails to file timely due to incompetence is covered under MSPB's Bridges precedent, Bridges v. Office of Personnel Management, 37 M. S.P.R. 290, 293 (1988), which held that delayed filing may be excused even if it is shown that the applicant has some minimal capacity to manage his or her own affairs and who does not need to be committed, if the applicant obviously needs considerable care from others.

A serious flaw in the process of reconsideration is the time lag between requesting reconsideration and the point at which the appeal is acted upon. In one such case, the application was rejected on May 31, 1995, and the reconsideration request was opened for action on April 21, 1997. The Benefit Specialists at OPM must be very overburdened!

When an application to retire is denied, the applicant should not delay in applying for reconsideration while awaiting evidence. Request the reconsideration immediately, and forward the additional medical or other evidence as soon as it can be developed.

Disability retirement applications can fail for two general reasons-an inability to document a disabling medical condition, or an inability to document a service deficiency which the agency could not accommodate.

Although this may sound too obvious, the best way to proceed is to read the denial carefully, several times over. There will normally be a part titled "Discussion" in the body of the rejection letter. Although some of the language is stock answers that every recipient will get, there will usually be a discussion about why this retirement application failed.

Most claims fail because the medical evidence failed to clearly establish that the applicant is disabled and will remain so either permanently or for at least one year. Additional medical evidence should be presented which is based on clinical findings that establish that the medical condition is of a severity to prevent the performance of essential duties or would warrant exclusion from the workplace, altogether.

If the application is denied due to uncertainty about a service deficiency or the inability of the agency to accommodate, additional evidence from the employing agency or supervisor would be needed to establish these factors.

When a reconsideration fails, the applicant is given appeal rights to the Merit Systems Protection Board. This creates one of the unusual situations where a letter carrier who may not be preference eligible will still appeal before an MSPB Administrative Law Judge. Such appeals are challenging.

By law, a request for disability retirement reconsideration must contain the name and address of the applicant and the CSA number.
See the example to the right.

Disabled persons are often very compromised by their problems. If a person has been out of work for many months, or even years, personal and financial resources may have already been stretched to the limit.

We know what these brothers and sisters need. They need their Union!