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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.

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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. 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.

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.

Recently, we had an injured client come to us who previously did not apply for disability retirement based on some bad advice she had received. As she came to our firm over a year after the time she left her position at the Postal Service, she lost all her rights to disability retirement. Losing her disability retirement also complicated her workers’ compensation case, and it eventually lowered the amount she could collect under the Federal Employees’ Compensation Act (FECA) as well. If this client had known when the rights to claim her benefits would expire, she would have been a lot better off financially.

It is equally as important for a federal employee to find out when the rights to claim workers’ compensation benefits expire. Again, I find that often federal workers are not always informed by their employers of these important deadlines. An example of a deadline for workers’ compensation is that a written claim for compensation must normally be filed within three years after the date of a traumatic injury. For a dormant injury, the three years starts when the employee was aware or should have been aware that his or her injury is related to the employment. We have had many clients that have injuries that occurred years or decades earlier, but where no claim was filed. While it is not always impossible to get those claims approved, it certainly can make things more difficult and time consuming for the injured worker.

There are exceptions to these deadlines. For example, under FECA, if an official supervisor of the injured employee has actual knowledge of the injury within 30 days of its occurrence, then the limitations period in which to file a claim is extended. It would generally be better for a federal employee to still submit a timely written claim, since then they would not have to prove that their supervisor had actual knowledge. Another exception is if an injury incapacitates the employee mentally or physically so that a written notice and claim cannot be executed. There are other exceptions not listed here, and at any rate, it is far safer to submit a written form within these time periods if possible than to rely on an exception. Note that any words of claim are sufficient: as long as the employer is put on written notice that you were injured and you claim the injury is related to work, that is enough to extend the time limit for filing a formal claim with OWCP.

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The above article was prepared by Brett E. Blumstein, 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.

In denying the Agent’s initial application, OPM had stated that he had failed to show he was injured before he was placed on administrative leave. The Board ruled that the Office of Personnel Management (OPM) should have considered whether the injured worker became disabled at any period during his employment, up to and including the period of time that he was on administrative leave.

The employee had introduced uncontested medical evidence showing that he had several herniated discs. The Board found that the claimant had “presented an overwhelming body of consistent and competent medical evidence that corroborate[d] his subjective complaints, and [established] that his medical condition [was] incompatible with either useful and efficient service or retention in his former position” (Henderson v. OPM, Docket No. AT-844E-08-0071-I-1, August 4, 2008 at p.14).

The Board therefore directed OPM to approve the disability retirement application.

The full decision can be viewed here: decision-8-4-08