Filed under: Injured On Duty, legal cases, postal, postal news, usps
Charles Johnson worked for the United States Postal Service from 1960 until he accepted an early retirement offer on November 20, 1992, at age 52. The following is from the Court of Appeals, Federal Circuit and the MSPB.
In March 2010, Mr. Johnson asked to be restored to employment with the Postal Service. The Postal Service denied his request on the ground that Mr. Johnson had voluntarily retired and had not been separated from his position as a result of a compensable injury. Mr. Johnson appealed that decision to the Merit Systems Protection Board. After considering evidence from Mr. Johnson on the issue of the Board’s jurisdiction over the appeal, the administrative judge who was assigned to the case held that his appeal was barred by claim preclusion and issue preclusion. Read more
From PostalReporter.com reader: National Reassessment Process is Dead! Finally! The attached notice is all we’re going to get? Note that the phrase “adequate work” has replaced NRP’s “necessary work.” This is consistent with ELM 546. The MSPB picked up on that.
As PostalReporter.com reported several months ago, USPS is referring to NRP as ELM 546.
Here is the text of USPS notice:
July 1, 2011
AREA VICE PRESIDENTS
SUBJECT: Modified Assignment Process for Limited Duty and Rehabilitation Employees
The reassessment of Limited Duty and Rehabilitation employees, referred to as the National Reassessment Process (NRP), concluded on January 31, 2011.
Assignment of Limited Duty and Rehabilitation employees will continue to be made in compliance with Employee and Labor Relations Manual (ELM) Section 546, Handbook EL 505, all applicable federal laws and regulations, and our collective bargaining agreements. And the attached Guidelines for Assignment should be used when trying to identify adequate work for limited duty and rehabilitation employees.
As questions arise, managers and supervisors should work closely with Health and Resource Management, Labor Relations, the Human Resources Manager, and the Law Department in order to clarify the issues presented and to ensure compliance with both Postal Service and federal regulations.
We will appreciate your support and assistance to ensure these guidelines are met.
Employee Resource Management
Thanks to a PostalReporter.com reader for alerting us to this notice.
The Merit System Protection Board (MSPB) has announced an opportunity for interested parties to file amicus briefs (Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action) in cases pertaining to USPS’ National Reassessment Process (NRP). The amicus brief will pertain to OPM’s regulation 5 C.F.R. § 353.301(d) requiring USPS to “make every effort” to restore a partially recovered employee to limited duty within the local commuting area.” Read more
Filed under: GAO, Injured On Duty, owcp, postal, postal news, press releases
GAO issued the following press release:
Believe You’ve Seen Evidence of Workers’ Compensation Fraud? Contact GAO
Abuse of benefits by federal employees can be reported anonymously
WASHINGTON, DC (July 14, 2011) – The U.S. Government Accountability Office (GAO) is investigating fraud and abuse in the Federal Employees’ Compensation Act (FECA) program. Specifically, GAO is looking for information on cases in which federal employees are currently abusing workers compensation benefits.
For example, fraud schemes might include a beneficiary working a second job, overstating their workers’ compensation claim, or collecting benefits for a deceased individual. Anyone with information regarding fraud or abuse of the FECA program by federal employees is encouraged to contact us at firstname.lastname@example.org. All information about individuals who contact us will be kept confidential.
For media inquiries about this announcement, contact Chuck Young, Managing Director of Public Affairs, at 202-512-4800.
Filed under: Injured On Duty, mail handlers, owcp, postal, postal news, usps
“Jerome Garrett is fighting for federal medical benefits.Garrett had been working at the Hapeville postal facility for 16 years. Then, in April 2009, a 100-pound box full of mail fell from an overhead conveyor belt and hit him in the head.The incident left Garrett with a broken neck that went unnoticed for some time, he said.Garrett told Channel 2’s Erica Byfield that it took six months for doctors to realize that the accident had broken his neck.Garrett said his surgeon cleared him to go back to work. But his wife showed Byfield paperwork from other spinal specialists who said he is not ready to return to work.The Department of Labor handles benefits for postal employees. The Garretts want them to reinstate him.”
Full story from WSB-TV Atlanta, Georgia
On Feb. 2, Sen. Susan Collins (R-ME), the ranking member of the Senate Homeland Security and Governmental Affairs Committee, introduced legislation to reform the federal government’s workers’ compensation program.
Her bill, the Federal Workers’ Compensation Reform Act of 2011, would require a “transition” to regular Civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS) retirement for federal and postal employees, who receive benefits under the Federal Employees’ Compensation Act (FECA) as a result of workplace injuries, once they reach their retirement age under Social Security.
Collins has argued that workers who have been permanently disabled by their injuries and who will never return to work should not be covered indefinitely by FECA, a program that is designed to provide income for workers injured on the job until they recover and return to work. The senator points to some 1,000 postal employees over the age of 70 who are still receiving FECA benefits, which are greater than retirement benefits provided by CSRS and FERS.
The NALC cannot support the legislation as drafted. It makes no provision for the loss of regular retirement benefits under CSRS and FERS suffered by FECA recipients who are separated from the Postal Service—since such injured workers get no years-of-service credit over the period of their injuries once separated, and since their annuities are based on their high-3 average salaries at the time of their separation, not at the time of regular retirement.
This loss of retirement income is compounded for FECA recipients covered by CSRS since those employees are unable to participate in the Thrift Savings Plan or to accrue benefits under Social Security—both of which make up two-thirds of the retirement package earned by FERS employees.
“We believe that any reform of the FECA program that requires a transition to retirement must be carefully constructed to ensure a fair retirement for injured workers,” NALC President Fredric V. Rolando said. “It should not punish workers for being injured in the line of duty.”
“NALC is committed to working with Sen. Collins and Chairman Joe Lieberman to achieve this result should the Committee take up this legislation,” the president added
Filed under: Injured On Duty, owcp, postal, postal news, press releases, usps
Sen. Collins’ Bill Would End Perverse Incentives Keeping People on a More Lucrative System into Retirement Years
February 2, 2011
Senator Susan Collins, Ranking Member of the Senate Homeland Security and Governmental Affairs Committee today introduced legislation to stop the costly and escalating abuses of the federal workers’ compensation system.
The Federal Employment Compensation Act (FECA) is an important program intended to tide over employees who are injured and make sure they receive income while they recuperate pending their return to work.
FECA pays monthly benefits to about 49,000 federal employees who are on its “periodic roll.” From July 1, 2009 to June 30, 2010, the cost was $2.78 billion. Of that dollar amount, nearly half – or $1.1 billion – went to U.S. Postal Service employees.
“At the U.S. Postal Service, for example, more than 2,000 employees currently receiving federal workers’ compensation benefits are 70 years or older,” said Senator Collins. “Nearly 1,000 employees are 80 years or older. Incredibly, 132 of these individuals are 90 and older and there are three who are 98. This abuse may extend across the government. If recipients are gaming this crucial benefit at taxpayers’ expense, they must be exposed and the underlying program must be reformed.”
The bill would reduce workforce-related costs government wide by converting retirement eligible postal and federal employees on workers’ compensation to retirement when they reach retirement age.
Filed under: Injured On Duty, mspb, nrp, postal, postal news, usps
More MSPB cases filed by Postal Workers were remanded during the month of October. The cases were remanded because the Postal Service’s job search under the National Reassessment Process was limited to installations within a single district and failed to include the entire commuting area as required by 5 C.F.R. § 353.301(d). Each decision cited Sanchez v. USPS, 2010 MSPB 121.
The Office of Personnel Management’s (OPM’s) regulations provide:
Agencies must make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty. At a minimum, this would mean treating these employees substantially the same as other handicapped individuals under the Rehabilitation Act of 1973, as amended. 5 C.F.R. § 353.301(d).
The Board has interpreted this regulation as requiring agencies to search within the local commuting area for vacant positions to which an agency can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010); see Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997); see also Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (evidence that the agency failed to search the local commuting area as required by 5 C.F.R. § 353.301(d) rendered nonfrivolous the appellant’s allegation that the agency acted arbitrarily and capriciously in denying restoration).
“For restoration rights purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station.” Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999). It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp, 73 M.S.P.R. at 193. The question of what constitutes a local commuting area is one of fact. The extent of a commuting area ordinarily is determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Sanchez, 114 M.S.P.R. 345, ¶ 13.
Summary of MSPB cases on National Reassessment Process:
Appellant: Blanca G. Patino
Agency: United States Postal Service
Decision Number: 2010 MSPB 210
Docket Number: SF-0353-10-0183-I-1
Issuance Date: October 29, 2010
Appeal Type: Restoration to Duty
Action Type: Denial After Partial Recovery from Compensable Injury
In June 2009, the agency’s Bay-Valley District began implementation of Phase 2 of the National Reassessment Program (NRP). Under the NRP, the agency seeks to identify operationally necessary work for employees with compensable injuries. The Bay-Valley District undertook to identify operationally necessary tasks and assess employees on limited duty assignments for modified work assignments. On November 18, 2009, pursuant to the NRP, the agency provided the appellant a modified assignment as a Sales Associate for 3 hours a day. Starting December 17, 2009, the agency assigned the appellant to work 8 hours a day as a lobby host for the holiday season. *
The appellant filed an appeal alleging that the agency’s provision of only 3 hours of work was a rescission of her restoration to duty after a compensable injury and denial of reasonable accommodation. The agency filed a Motion to Dismiss the appeal for lack of jurisdiction. The administrative judge issued an initial decision granting the agency’s motion.
The appellant has filed a petition for review. Petition for Review (PFR) . She asserts that the administrative judge misstated her physical restrictions, did not consider the relevancy of the collective bargaining agreement, and erroneously found that the agency’s action was not arbitrary and capricious because she had been doing the same work since 2007. She further contends that the agency failed to search for work within a 50-mile radius and directed the offices to which it sent search requests to respond negatively
Although the initial decision states that “the agency submitted evidence that it searched for available work within the appellant’s medical restrictions in her commuting area,” it does not define the local commuting area relevant in the appellant’s restoration claim. Therefore, we are remanding the appeal for supplemental proceedings and issuance of a new initial decision. See Mubdi v. U.S. Postal Service, 114 M.S.P.R. 559, ¶ 12 (2010). On remand, the administrative judge shall oversee further development of the record by the parties on this issue, including an opportunity for discovery by the parties and a hearing. Id.; see Sanchez, 114 M.S.P.R. 345, ¶ 15; Sapp, 73 M.S.P.R. at 193-94 (remanding the appeal for further development of the record on what constituted the local commuting area and whether the agency’s job search properly encompassed that area). Read more
The Thanksgiving Ambush
Oakland Postal management hit injured employees with “shock and awe” tactics better suited to the battlefield. Starting a few days before Thanksgiving of 2009, management started to place injured on duty employees off duty. The expected Phase 2 interviews never took place: employees were called aside, allowed to clean out their lockers, and told to
leave the building.
The departures have continued into April 2010. Injured employees have been left wondering if they will be next, and even bystanders are often disturbed by the sight of co-workers forced to do the perp walk just for having been injured on the job. The procedure was heavily scripted, designed to leave no room for negotiation.
Oakland injured employees had been forewarned and offered coaching by local officers and by Western Regional Coordinator Omar Gonzalez. A series of workshops given by the Oakland Local last summer outlined the history of the NRP and suggested ways to contest actions taken under the program, from filing grievances and EEO complaints to appealing to the MSPB. All of the members that have been placed in a non work status have remained in contact with the local and have received assistance with paperwork. Most of the employees are receiving compensation from OWCP or unemployment benetits from EDD. Thirty of the local’s grievances that were appealed to Step 3 regarding the NRP ambush have been remand to Step 2 pending adjustication of a national grievance that is not applicable to our cases. President Jacobs has ask APWU Headquarters to rescind the remand settlement and have the cases appealed to arbitration.
source: Fred Jacobs, Oakland APWU President
Filed under: Injured On Duty, legal cases, letter carriers, NALC, postal
Illinois Letter Carrier fired for failing to report income earned playing bass guitar for a rock band called BANG!
Truhlar sued the Postal Service and NALC Branch.
TRUHLAR v. U.S. POSTAL SERVICE
KENNETH T. TRUHLAR, Plaintiff-Appellant,
UNITED STATES POSTAL SERVICE, et al., Defendants-Appellees.
United States Court of Appeals, Seventh Circuit.
Argued December 3, 2009.
Decided April 12, 2010.
Before EASTERBROOK, Chief Judge, and MANION and EVANS, Circuit Judges.
EVANS, Circuit Judge.
In 1998, Kenneth Truhlar was working as a letter carrier for the United States Postal Service in Westmont, Illinois, when a car rear-ended his mail truck, injuring his back and neck. Truhlar sought partial disability payments but failed to disclose in the disability compensation paperwork that he was earning money playing bass guitar for a rock band called BANG!. When the Postal Service discovered the omission, it launched an investigation to determine whether he had engaged in misconduct. It ultimately concluded that he had, and in 2005, Truhlar was fired. He sued the Postal Service and his local union, John Grace Branch #825 of the National Association of Letter Carriers, under § 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185, claiming that the Service breached the collective bargaining agreement by firing him without just cause and that the union breached its duty of fair representation. Truhlar’s suit, which is a form of hybrid litigation, came to an end when the district court granted the defendants’ motion for summary judgment. Truhlar appeals that decision.
Although the parties disagree over a number of (ultimately immaterial) details, the following facts are undisputed. In order to collect partial disability payments following his injury, Truhlar periodically submitted a Department of Labor (DOL) form called the CA-7, which includes the following question: “Have you worked outside your federal job during the period(s) [for which you are claiming disability]? (Include salaried, self-employed, commissioned, volunteer, etc.).” Truhlar responded “no” to this question or failed to answer it on 24 CA-7 forms he submitted between 2000 and 2001, despite the fact that he earned between $8,775 and $11,000 performing with BANG! during that period. After a Postal Service inspector videotaped Truhlar playing with the band, another inspector interviewed him about the discrepancy. Truhlar claimed he misunderstood the question on the form. In June 2001, the Postal Service notified Truhlar that he was being placed on off-duty status for “failure to provide correct earning information on your Form CA-7.” A local union steward filed a grievance on Truhlar’s behalf, and when the grievance was denied, union representative Eric Smith appealed in accordance with the collective bargaining agreement’s (CBA) three-step grievance procedure. Read more