In a Small Town, Part I

In the small town, the Corner Pancake House was where all of the girls began their careers. Sometime around the Sophomore or Junior year of Titusville Central High, the girls would waitress, cook, serve the town smart-alecks, and begin their trek from childhood to adulthood. It was the town’s singular rite-of-passage. It would last a year, perhaps two at most; the owner would yell, scream, curse and call each of the girls “lazy no-good s.o.b.s”; nevertheless, sometime “down the road”, each one of them would come back after they had gotten married, or graduated from college, or taken another job in another town, or in some big city, or every once in a while, in a foreign country – they would all make their way back to “Tony” and he would hug them as if they were their long-lost sister.

But there was once this girl – Judy; she never left. It wasn’t as if she wasn’t attractive; sure, she was quiet, perhaps a bit too introverted; and though you wouldn’t call her a “looker”, she possessed a certain sense of quiet serenity; and she stayed. By all accounts, Tony treated her like trash; one would have thought that, after the third or fourth year, when it became apparent that Judy would never leave; that she would remain a waitress at the Corner Pancake House all of her life; that Tony would have begun to treat her well. But it was as if Tony didn’t know how else to treat her. When Judy would leave a piece of microscopic lettuce in a hidden corner behind the salt/pepper/sugar carrier, Tony would take great pleasure in his bellowing voice, calling, “Judy! Get over there and do a proper job! Stop being so lazy and…” and with quiet serenity, without complaint, without emotion, Judy would rush over to the table and correct the infraction.

There were rumors, of course; rumors that Tony loved Judy; that Tony and Judy were secretly married; that Judy was secretly in love with Tony, but because she had promised her heart to a mysterious man in another town, that she could not… But the truth of it was that Tony didn’t know how else to treat Judy; he had never had a girl from Titusville Central High stay and work; and so he continued to treat her like the high school girl he knew her to be, even after years and years. Now, some might say that this is a rather sad opening for a story; but who are we to judge the reasons and foundational values that embrace the life of another? How many of us can know the inner thoughts of Judy; and how can we determine that her life was of greater or lesser value than the girls who came and went, who went on to “glorious” careers, or to exotic sanctuaries of work, play, lives fulfilled or forlorn? The worth of a person must be judged not by the work he or she does, but by the quality of attending to the task before the person. That Judy made sure that each of the tables was prepared for the customers; that the orders were taken with precision and pleasantness; that there was always a quiet smile, and a word of encouragement – are these not the episodes of value? Yet, how often do we pass by the many Judys of this world, and make either a judgment or none at all. Indeed, to not even notice may be the greater mark of cruelty, than to judge that your fellow man is of lesser worth.

FERS & CSRS Disability Retirement: Agency’s Actions Can Sometimes Be To Your Advantage

Postal employees, there is nothing inherently wrong with an Agency offering you modified or light duty assignments. If your Agency deems you to be valuable, they may want to modify your position in order to keep you. However, the mere fact that you accept and work at a “modified” position does not mean that you are thereby precluded, down the road, from filing for disability retirement.

In fact, most “light duty” or “modified positions” are not real positions anyway, and so you may have the best of both worlds for many years: be able to work at a light-duty or modified position, and still reserve the right to file for Postal Disability Retirement sometime in the future.

The reason for this is simple: in all likelihood, your SF 50 will not change, and you will still remain in the same, original position. As such, the “light duty” position is simply a “made-up” position which has no impact upon your ability to file for disability retirement later on. This is the whole point of Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343 (2003), where the Board held that a modified job in the Postal Service that does not “comprise the core functions of an existing position” is not a “position” or a “vacant position” for purposes of determining eligibility for disability retirement. The Board noted that a “modified” job in the Postal Service may include “‘subfunctions’ culled from various positions that are tailored to the employee’s specific medical restrictions,” and thus may not constitute “an identifiable position when the employee for whom the assignment was created is not assigned to those duties“. The Board thus suggested that a “modified” job in the Postal Service generally would not constitute a “position” or a “vacant position.”

Analogously, this would be true in Federal, non-postal jobs, when one is offered a “modified” or “light-duty position,” or where a Federal employee is not forced to perform one or more of the essential elements of one’s official position. Further, think about this: if a Postal or Federal employee is periodically offered a “new modified” position once a year, or once every couple of years, such an action by the Agency only reinforces the argument that the position being “offered” is not truly a permanent position. Sometimes, the Agency’s own actions can be used to your advantage when filing for disability retirement.

Sincerely,

Robert R. McGill, Esquire

Each Stage for CSRS/FERS Disability Retirement Must Be Approached Differently

In filing for Federal disability retirement benefits, there are essentially 3 stages — the initial application Stage; the Reconsideration Stage; and the appeal to the Merit Systems Protection Board (and, of course, additionally if you are denied at all three stages, you can go further and file a Petition for Review with the MSPB, and beyond that, file an appeal to the Federal Circuit Court). Do not approach all of the first three stages in the same way; there is a philosophical reason for the existence of each, and to approach all three stages in the same manner is often a mistake that unrepresented applicants make.

As a practical matter, for the first two administrative stages before the Office of Personnel Management, while citing applicable statutory authority and case-law is important, it is often wise to keep in mind that you are addressing non-lawyer benefits specialists at OPM. Thus, arguing the law in the first two stages should be performed quite differently from arguing the law to OPM’s representative and the MSPB administrative judge at the Merit Systems Protection Board (3rd) Stage of the process. A “cookie-cutter” approach for all three stages is the wrong methodology to undertake. Each stage in the process must be taken independently, and approached uniquely.

Sincerely,

Robert R. McGill, Esquire