NELA conference PowerPoint 2010

Addtnl & Alt Remedies for Disabled EEO Compainants & MSPB Appellants

The more complicated question is what happens to your wage loss benefits. Most people are surprised to know that wage loss benefits are not automatically forfeit by a termination for cause or resignation.

The key factor in determining whether you will continue to receive or start to receive wage loss after resignation/termination is *why* you are no longer earning wages. If you can show, through competent medical evidence, that you were not capable of earning wages regardless of whether you had resigned or been terminated, you will retain your right to benefits.

What benefits you receive, if any, will depend on a variety of factors including whether you are working at the time of your resignation/termination, what type of employment you held at the time of termination (full time/part time/ modified duty), whether OWCP has established your loss of wage earning capacity, whether there is light duty available to you, whether the position you are working in has been found suitable by OWCP, etc..

Before making any decision with regard to whether to resign or whether to fight a proposed termination make sure to consult with an attorney knowledgeable in matters relating specifically to federal employees.

TERMINATIONS OR REDUCTION IN HOURS

• What if you have been away from work for a year and your agency terminates you for medical unavailability?

This is a very common scenario. A client will get a letter from the employing agency proposing to terminate him/her for being medically unavailable. The typical first reaction is panic that such removal will negatively impact receipt of OWCP benefits. Relax – it will not. In fact, a removal for medical reasons, assuming your medical condition is related to your work injury, is solid proof that you have lost wages due to your injury. It also shows that the agency does not have light duty available for you.

You should also be sure to look into applying for FERS or CSRS disability retirement as a removal for medical reasons will typically entitle you to a presumption of disability under FERS and CSRS.

• What if you are currently disabled and your agency removes you for cause?

If you are on leave without pay and collecting workers compensation due to a work-related medical condition that renders you disabled, and your agency decides to terminate you for cause (such as poor performance, insubordination, failure to provide medical updates, failure to follow leave procedures, etc.), you will continue to be entitled to wage-loss. The reason is that your medical condition is causing you to be unable to work, regardless of whether or not your employer held a position for you. An injured worker does not need to be employed by the federal government to be eligible for wage-loss. Again, the focus is on why you are not working. If you are not working solely because you were terminated for cause, you do not get wage loss. If you are not working because you are physically or psychologically unable to work due to a work-related injury, you can get wage loss. There are provisions that prohibit employees convicted of certain crimes, such as fraud, from receiving wage loss. So, if you have been terminated because you were found guilty of a crime you may not be eligible for wage loss benefits.

• What if you are working part time and receiving wage loss for the rest of the day that you are not working?

The Employees Compensation Appeals Board addressed this specifically in Janice J. Green, Docket No. 96-874 ECAB (1998). In that case, the claimant was removed for cause while she was working 4 hours per day and collecting 4 hours of OWCP wage-loss compensation. When she was terminated for cause, OWCP cut off all of her wage-loss benefits. She appealed. The ECAB overturned OWCP’s decision and determined that the claimant continued to be entitled to the 4 hours per day of wage-loss compensation, because she was unable to work for those four hours regardless of whether she had been removed or not.

RESIGNATIONS

• What if you resign employment?

It is rarely advisable to simply resign from federal employment. There are a variety of reasons for this including the impact it may have on your disability retirement, EEO and MSPB rights. Further, resigning places your health insurance in jeopardy as unless OWCP or OPM begin paying you, your group policy will expire. Every situation is different and you should always consult with an attorney that is knowledgeable about federal employment law before resigning your employment.

That said, with regard to your OWCP wage loss benefits, if you can prove through competent medical evidence that you were totally disabled prior to your resignation, or that you requested light duty and your agency notified you that none was available within your restrictions, you may continue to be entitled to wage-loss benefits even if you resign. At minimum, you should make sure that your SF-50 says that you are resigning for medical reasons.

• What if you were off of work on total disability, return to work in some capacity and then resign?

In this situation, unless you can show your level of disability increased since you returned, or your job duties changed in a significant way, OWCP may determine that you have abandoned suitable employment and invoke a penalty provision of the FECA which means you forfeit your entitlement to wage loss and a schedule award permanently. Obviously, you want to avoid that.

A better approach, in most cases, is to get a good medical report from your physician explaining why you cannot continue working at your current job duties. You then stop going into work and submit the medical report explaining why you cannot work that job at your agency. That gives the agency the opportunity to further modify your position to allow you to continue working, or tell you that no further accommodation is possible. In either case, you will not be stuck without an income as a result of resigning from what OWCP considers to be suitable employment.

• What if you are working full time, full duty and resign?

If you resign for reasons other than that competent medical evidence shows you are totally disabled from all work, then your wage-loss benefits will likely be terminated. The reason is that you were fully employed and capable of earning wages at the time of your resignation. Therefore, the reason you are not earning wages is because of your resignation and not because of your medical condition. OWCP only pays wage loss for inability to work – not for unwillingness to continue working.

• What if you are disabled from your position but not disabled from all work?

Many doctors will state your level of disability only as it relates to your full duty position. It may be clear to your doctor that you will never be able to return to working your regular job. It is important to understand that OWCP does not consider you totally disabled unless you are either unable to work at all in any capacity or you are unable to do your regular job and your agency has no light duty available. Therefore, if you are unable to work at your regular job you must still give your agency the opportunity to provide you with light duty. If you resign without providing your agency with that opportunity, OWCP may delay or refuse to pay you wage loss until your agency confirms that there was no light duty available.

If you apply for disability retirement, one of the questions your agency is asked is whether you can be accommodated. If they answer no, this may be enough to show that no light duty was available. However, because of different ways the term “accommodated” is interpreted by OWCP, OPM and EEOC, we still recommend that you ask separately, in writing, whether there is any light duty available for you before making any decision regarding your employment status.

Do not put yourself in the position where you have resigned and your agency notifies OWCP that is has light duty. Your agency does not have an obligation to take you back just because OWCP will not pay your wage loss.

CONCLUSION

As you can see from the examples above, getting terminated or resigning can have a major effect on your receipt of wage loss compensation from OWCP. Make sure to discuss your situation with someone who is experienced in handling OWCP cases before making any decisions. A misstep could very well cost you your entitlement to wage loss compensation and/or a schedule award.

——-
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. The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.

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.

His employer had offered him a temporary light duty assignment which his doctors had stated was outside of his physical capabilities. OWCP made an informal determination that he could do the job and cut off his benefits.

The ECAB ruled that before terminating wage loss benefits, OWCP has to find the offered light duty position suitable. It must then give adequate notice to the claimant of its finding and give him an opportunity to respond. It did none of those things in this case.

Therefore, the Board overturned the Office’s decision stating, “[t]he Office did not follow proper procedures to determine that the modified job offered to appellant was suitable.” It further stated, “The notice and termination decision in this case appear as abberations to established Office procedures and the well-defined precedent of the Board.”

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FEDERAL WORKERS’ COMPENSATION LITIGATION GROUP SEMINAR, LOS ANGELES, CALIFORNIA 06/11-12/05

ADVERSE ACTION MERIT SYSTEMS PROTECTION BOARD APPEALS

Basic outline of jurisdiction

            Federal employees [1] who are given serious discipline [2] are entitled to appeal those personnel actions to the U. S. Merit Systems Protection Board.  This Board was created in 1978 as part of the Civil Service Reform Act.  In any such appeal, the Agency has the burden of proof to show that its action was justified. [3]

Basic outline of procedure

            An employee is first given a notice of proposed adverse action, with due process rights to respond orally and/or in writing within a given period (usually 15 days).  Thereafter, a final decision letter will be issued, providing the employee his/her right to file an MSPB appeal within 30 days of the effective date of the decision.

            MSPB provides usable electronic forms online at www.mspb.gov.  A printed form is attached to these materials.  The appeal can be filed several different ways, including via internet.  Once MSPB receives the appeal, an Administrative Judge [AJ] will be assigned and an Acknowledgment Order will be issued by that AJ within two or three days.  This order should be read very carefully, as it will contain various time limits within which the parties must complete pre-hearing actions.  These may actions include: (1) Agency preparation of the Agency Response File, including a narrative response to the appeal, (2) pre-hearing discovery, (3) motions to dismiss, (4) any special jurisdictional showing required by the AJ.   

            The MSPB appeals process is very quick, and is sometimes referred to as the “rocket docket”.  The entire process, through hearing and decision, takes 120 days.  In individual cases, more time can be arranged by stipulation of the parties or through agreement by the AJ, but 120 days is the standard processing time.  Because time is so short, a representative must be prepared to move quickly to send out discovery requests, familiarize him/herself with the facts of the case, and identify any legal issues that will require research or briefing.  For example, if an AJ feels there is a legal issue that s/he will have to rule on, s/he will probably ask the parties to brief it within a very short time period.  

            Discovery at MSPB is problematic since most AJs do not want to get heavily involved in motions to compel.  The power to compel discovery responses is much more limited than in federal court, since time is so short; the parties are encouraged to resolve all such disputes informally.  Of course, Agencies tend to take advantage of this situation by refusing to provide responses to any request they see as out of the ordinary, or which for tactical reasons they do not want to respond to substantively.  Therefore if an essential document must be produced, a question must be answered, or a witness deposition must be accomplished, etc. it is advisable to begin the process immediately.

            Hearings in these cases are often very contentious, and the Appellant’s represent-tative must be prepared to confront dissembling witnesses and agency representatives who hide documents, try to intimidate witnesses before the hearing, etc.  Some agencies utilized HR legal staff as representatives for these cases, while others use personnel specialists or other individuals with little legal training but lots of agency experience. 

            If the matter proceeds to hearing, the AJ will issue a detailed Initial Decision with his/her rulings and instructions to the parties about possible appeals.  

Attorney fees and expenses

A successful appeal will entitle the Appellant/employee to reasonable attorney fees and litigation expenses, for which a petition for fees must be filed.  After the agency opposes the fee petition and the Appellant replies, the AJ issues an order regarding fees and expenses.

DISCRIMINATION COMPLAINTS

Basic outline of jurisdiction

            Federal employees who feel they have been discriminated against on the basis of race, sex, age, national origin, skin color, religion, disability, or reprisal for prior EEO [Equal Employment Opportunity] activity are protected from such discrimination by various laws including Title VII of the Civil Rights Act of 1964 as amended, the Rehabilitation Act of 1973 as amended, and the Age Discrimination in Employment Act of 1967 as amended.  These comments are limited to Title VII and Rehab Act complaints.

Basic outline of procedure – complaint pending at Agency level

            A federal employee who wishes to initiate a discrimination complaint must first, within 45 days of the event seen as discriminatory, “request EEO counseling”.  Such counseling is provided by his/her employing agency.  This request is accomplished by calling, writing or speaking to someone who is logically connected to the EEO process at the employing agency and stating “I want EEO counseling” or any words so indicating.  The agency then provides an EEO counselor who interviews the employee and any relevant supervisory personnel in what is supposed to be an attempt to informally resolve the complaint.  Very few complaints are resolved at this stage.

            If informal counseling does not resolve the complaint, within 30 days of the request for counseling the employee is given written notice of his/her right to file a formal EEO complaint within a 15-day window.  The filing of a complaint is almost always accomplished by filing a form provided by the employer, which includes information about where to file it, etc.  If the employer does not timely complete counseling or does not provide a form, the employee can simply write stating his desire to file a formal complaint.  Agencies frequently either do not complete informal counseling within the timeframe required or ask the employee to waive the time limit to allow for “mediation”, more time to gather information, etc.; such requests should nearly always be rejected by the employee as delaying tactics. 

            The Agency has 180 days after the filing of a formal complaint to complete an investigation of the complaint’s allegations and to issue a Report of Investigation [ROI] containing all information gathered during the investigation.  This will normally include affidavits from the complainant and witnesses, relevant documents, etc. 

Basic outline of procedure – complaint before EEOC

            If the complaint is not resolved during the formal (investigation) stage, the employee then has the right to file a request for a hearing at the Equal Employment Opportunity Commission [EEOC].  In discrimination cases brought by federal employees, EEOC conducts hearings, as opposed to issuing a “right to sue” letter allowing the employee to sue – as is the procedure for private sector employees.  The hearing is requested by simply sending a letter to the local EEOC office, with a copy to the agency, so stating.  If the Agency has completed its investigation within the 180-day  period, its letter transmitting the ROI to the employee will include instructions on how and where to request an EEOC hearing (among other options).  

            After requesting an EEOC hearing, the employee and his/her representative should begin preparing for the administrative litigation even before EEOC issues its Acknowledgment Order notifying the parties of procedural deadlines.  The Order will provide that discovery must be completed within 90 days, motions for summary judgment (§109(g) motions) must be filed within 15 days thereafter, etc.  Any issues rejected and not investigated by the Agency can be revived at this point by filing an opposition to partial dismissal of complaint, on which the AJ will then rule.

            Procedure before EEOC, while not quite a lightning-fast as MSPB procedure, is nevertheless quite rapid and requires prompt and thorough action by the representative.  For example, short timeframes are given for filing motions to compel, and must be met or the failure to respond to discovery is waived.

            Assuming the case survives the Agency §109(g) motion, prior to hearing the AJ will conduct one or more pre-trial conferences (mostly telephonic) in which issues will be specifically identified and eliminated, witnesses will be approved or eliminated, and all documents to be presented at the hearing will be exchanged and identified.  The ROI’s contents are already part of the hearing record and need not be separately identified or produced.  

            At the hearing, the only evidence allowed will be evidence relevant to the specific issues identified.  Closing statements are usually requested either orally at the end of the hearing or later by phone, or in writing within timeframes specified by the AJ.  After all statements have been submitted, the record closes and the AJ begins the process of rendering a decision.  This may take several months.  Often the AJ will advise the parties either in writing or by phone of his/her intention to rule in a particular way, and invite settlement discussions, attorney fee petitions, etc. at that time. 

Basic outline of procedure – after EEOC decision

            If the AJ’s ruling is against the employee in whole or in part, the employee retains the right to file an administrative appeal to the EEOC’s Office of Federal Operations [OFO] and/or to the federal court system.  

RELATIONSHIP BETWEEN MSPB AND EEOC JURISDICTION

            This topic is extremely complex and is beyond the scope of a brief discussion.  Suffice it to say that where an allegation of discrimination is made in connection with a challenge to a personnel action that is within the jurisdiction of MSPB, whichever agency acquires jurisdiction first will have the authority to make an initial decision on all issues raised.  That decision, however, will be subject to review by the other agency regarding issues within its primary jurisdiction in appropriate circumstances.

DISABILITY RETIREMENT

General provisions:

Federal employees who become disabled from performing their regular job, whether or not due to on-the-job injuries, may be eligible for disability retirement. This “early-out” for disability is a program administered by the U.S. Office of Personnel Management, and is available under both retirement systems (CSRS and FERS) set up for federal employees.  Federal regulations set out the requirements for a successful disability retirement application, but each case depends on its specific facts and the evidence presented.

Time for applying:

With certain exceptions, an application for disability retirement must be received by OPM while the employee is still working for the federal government or within one year after employment ends. Specific medical information must be provided to OPM by the applicant. If the applicant is mentally incompetent, the time for filing may be extended.  If the employee stops working but remains on the payroll, for example receiving administrative leave, sick leave, annual leave, or leave without pay [4], the time for filing does not begin to run. 

Relationship to discrimination cases:

Employees who have suffered discrimination typically consider disability retirement programs in two situations:  (1) they are being discriminated against, either because of a disability or for some other reason, suffer a work stoppage and must replace lost income, and/or (2) they become emotionally disabled on a long-term basis because of illegal discrimination and lose the ability to work.  

Strategy:

In cases where there appears to be a long-term disability (likely to last one year or more after the disability retirement application is filed), consider discussing with the client the possibility of filing an application.   EEO settlements can include provisions that the agency will not contest the application and will state on its portions of the forms that the employee’s disability is too severe for it to reasonably accommodate.  In mental disability cases, consider asking the client’s doctor about the advisability of retirement.  Determine whether the client’s doctor(s) have already been recommending retirement. 

The retirement benefit, once won, lasts a lifetime and can only be terminated if either (1) the employee fully recovers, i.e. becomes able once again to perform the full-time, full-duty requirements of the last federal position held, or (2) the employee earns, in any one calendar year, more than 80% of the current pay of the last federal position held.   

[2]  Removal, suspension of more than 14 days, demotion, reduction in grade and/or pay, furlough of more than 30 days, etc.  See 5 CFR §1201.3.

[3]  The Agency’s burden of proof varies, depending on whether the action is based on Chapter 75 (preponderance of the evidence burden) or on Chapter 43 (substantial evidence burden).

[4]  (whether or not receiving workers’ compensation at times when on LWOP)

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.

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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.

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 Federal (including U. S. Postal Service) civilian employee and have had an on-the-job injury or disease that resulted in permanent impairment to certain parts of your body, you may be entitled to a cash award to compensate you for that loss.  

We are frequently contacted by Federal and Postal employees who tell us they have suffered such a permanent injury, but when we ask them if they have applied for a schedule award they say that no one has ever told them about this kind of award.  Unfortunately this is not unusual, as it is common for federal HR and workers’ compensation specialists at employing agencies to give out incomplete or simply incorrect information to employees about their workers’ compensation rights under the Federal Employees’ Compensation Act (FECA).  Even some union officials appear to be uninformed about these benefits, which can be quite substantial and important to injured workers.

The following is a summary of the Schedule Award provisions of FECA, including how such benefits relate to other pay and benefits federal employees might receive.

1.         What is a schedule award?  A schedule award is a monetary benefit payable to federal employees, under 5 U.S.C. §8017(c), whose work-related injury or disease permanently affects the function of specific body parts.  This award is different from, and can be in addition to, any benefits payable for lost wages.

2.         What parts of the body are listed on the schedule?  The following body parts, along with the number of weeks of compensation payable for 100% loss of each, are listed on the schedule:

The statute, 5 U.S.C. §8107(c), lists the following body parts on the schedule:

Body part [“member”]  ____                      # weeks:

(1)   arm   …………………………………..     312

(2)   leg ……………………………………..     288

(3)   hand  …………………………………..     244

(4)   foot  ……………………………………     205

(5)   eye  …………………………………….    160

(6)   thumb  ………………………………….      75

(7)   1st finger  ……………………………….     46

(8)   great toe  …………………………………   38

(9)   2nd finger   ………………………………    30

(10)  3rd finger  ………………………………     25

(11)  any other toe  …………………………..     16

(12)  4th finger   ……………………………..      15

(13)  loss of hearing

(A) complete, one  …………………        52

(B) complete, both  ………………….    200

A regulation, 20 C.F.R. §10.404 (quoted here in its entirety), interprets the statute and adds to the schedule the following body parts:

Sec. 10.404  When and how is compensation for a schedule impairment paid?

    Compensation is provided for specified periods of time for the permanent loss or loss of use of certain members, organs and functions of the body. Such loss or loss of use is known as permanent impairment.  Compensation for proportionate periods of time is payable for partial

loss or loss of use of each member, organ or function. OWCP evaluates the degree of impairment to schedule members, organs and functions as defined in 5 U.S.C. 8107 according to the standards set forth in the specified (by OWCP) edition of the American Medical Association’s

Guides to the Evaluation of Permanent Impairment.

    (a) 5 U.S.C. 8107(c) provides a list of schedule members. Pursuant to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary has added the following organs to the compensation schedule for injuries that were sustained on or after September 7, 1974:

————————————————————————

                            Member                               Weeks

————————————————————————

Breast (one)………………………………………….         52

Kidney (one)………………………………………….      156

Larynx……………………………………………….         160

Lung (one)……………………………………………       156

Penis………………………………………………….        205

Testicle (one)………………………………………..         52

Tongue……………………………………………….        160

Ovary (one)…………………………………………..        52

Uterus/cervix and vulva/vagina……………………     205

————————————————————————

    (b) Compensation for schedule awards is payable at 66-2/3 percent of the employee’s pay, or 75 percent of the pay when the employee has at least one dependent.

    (c) The period of compensation payable under 5 U.S.C. 8107(c) shall be reduced by the period of compensation paid or payable under the schedule for an earlier injury if:

    (1) Compensation in both cases is for impairment of the same member or function or different parts of the same member or function, or for disfigurement; and

    (2) OWCP finds that compensation payable for the later impairment in whole or in part would duplicate the compensation payable for the pre-existing impairment.

    (d) Compensation not to exceed $3,500 may be paid for serious disfigurement of the face, head or neck which is likely to handicap a person in securing or maintaining employment.

3.         When can a federal employee receive a schedule award?

An injured employee cannot receive a schedule award while he or she is receiving temporary total disability – for lost earnings – because of the same injury.  An injured employee can, however, receive a schedule award for a period of time in which he or she:

A.                 Is working, either at his or her normal federal job or elsewhere;

B.                 Is receiving retirement benefits – either “regular” (optional) or disability benefits under CSRS or FERS;

C.                 Is receiving retirement benefits under CSRS or FERS and wages from non-federal employment;

D.                 Is receiving temporary total disability benefits from OWCP for a different injury to a different part of the body;

E.                  Is receiving another schedule award from OWCP for a different injury to a different part of the body.

If an employee is receiving temporary partial disability benefits – for example, if he or she is working part time and OWCP is paying for the lost hours in workers’ compensation, the employee can opt to receive the larger schedule award and the partial wages for that period instead. This would result in a partial loss of the award, however.  

4.         How are schedule awards computed?

The award is generally computed on the same basis as total disability benefits for that employee, namely, it is based on the employee’s weekly pay rate, times the compensation rate (2/3, or 3/4 if the employee is married or has another dependent); then, to compute the schedule award, that amount is multiplied by the number of weeks on the schedule, and multiplied again by the percentage of impairment.  Example: A schedule award for 25% impairment of an arm to a worker with a $50,000.00 annual salary and a spouse and/or dependent(s) would be: $50,000.00 per year, divided by 52 weeks per year, times 3/4, times 312, times 0.25 = $56,250.00.

5.         How can an employee make a claim a schedule award?

Assuming the employee’s claim for the injury or disease has already been accepted by OWCP, the employee can file an OWCP form CA-7, claim for compensation, and indicate in the appropriate box that it is a claim for a schedule award.  Medical documentation stating the degree of permanent impairment should accompany the claim form; legal assistance is often helpful in obtaining such medical documentation.  

6.         How are schedule awards paid?

The award can be paid in payments, once every four weeks like normal “automatic roll” workers’ compensation payments for long-term total disability, or it can be paid in a lump sum under certain conditions.  If paid in a lump sum, the total amount will be reduced by 4% true discount and paid at one time.   

7          What if the employee’s claim for an award is denied?

as with any OWCP decision reducing or denying benefits, the employee can legally challenge a decision denying a schedule award in a number of ways.  The assistance of an attorney is recommended to effectively challenge such a decision.

8.         What if the employee does not agree with the amount of the award?

again, as with any OWCP decision, the employee can challenge the amount of the award legally; but he or she should be aware that the percentage loss of use stated by a treating doctor may not be the same percentage that is awardable under the statute and regulation.  That percentage is determined by the current edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment, known as the “AMA Guides”.  Often the percentage is determined on the basis of a report from one of OWCP’s doctors, however, and these reports can be successfully challenged by legal counsel.

9.         What if the employee no longer works for the federal government or the Postal Service?

As stated above, schedule awards are payable to former employees who are now retired and receiving retirement (pension) benefits.  Assuming the disability from performing the employee’s last federal job 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.  Our office represents federal and Postal employees in both workers’ compensation and disability retirement cases.

CONCLUSION:

Schedule award benefits are often overlooked, but they are an important part of the package of benefits that injured federal workers are entitled to under the law.  Coordination of these benefits with pay and other types of benefits is essential in order to maximize the total monetary compensation the employee can receive. 

IF YOU NEED ASSISTANCE ABOUT ANY OF THESE MATTERS, PLEASE CALL US.

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