NELA conference powerpoint 2010w

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.

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.”

Download Decision

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

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.

______________________________
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.

Most injured workers are not completely bed-ridden and OWCP is aware of that fact. When a report is submitted stating that an injured worker is totally disabled, unless the medical condition is obviously severe (stroke, heart attack, etc), a general statement of ‘total disability’ is likely to trigger healthy skepticism with the OWCP claims examiner that is controlling your claim. This is especially true when the work-related injury affects only one extremity. For example, it is a perfectly reasonable for the claims examiner to question why a broken leg prevents an injured worker from doing sedentary work. Though a broken leg will likely prevent a mail carrier from delivering mail, that carrier may be able to perform light duty, such as answering phones or sorting mail.

Keep in mind that once OWCP has accepted a claim, it is the job of an OWCP claims examiner to return the injured worker to some form of productive employment. A claims examiner’s skepticism that you are ‘totally disabled’ will often result in a second opinion examination or a denial of your claim based on insufficient evidence proving that you are not capable of any work. Second opinion examinations are similar to personal injury defense medical exams in that they rarely result in a positive outcome for the injured worker and therefore should be avoided whenever possible. The best way to avoid the scheduling of a second opinion exam is to provide OWCP with detailed medical evidence so that it has no need to inquire further about your condition.

It is quite common for doctors to submit reports that simply list an injured worker as ‘totally disabled.’ Many times, upon further inquiry, the doctor explains that by ‘totally disabled’ he means to say that the injured worker is not capable of performing his job. Under FECA, for an employee to receive compensation for disability, he must be unable to perform in his position of record and the agency must not offer him an alternative light duty position within his physical or mental capabilities.

It is far more beneficial to have your doctor to provide detailed work restrictions, no matter how severe those restrictions are, than it is for your doctor to simply state you are totally disabled. This is true even if you believe you are not capable of performing any productive work. If your injury clearly prevents you from working at your regular job, the provision of detailed work restrictions will cause OWCP put the burden onto your employing agency to offer you light duty within the stated restrictions. If your employing agency does not, you will almost always be paid compensation for your lost wages.

While it may seem more advantageous to your receipt of benefits for your doctor to state you are totally disabled it is not. The statement by a physician that an injured worker is totally disabled is a giant red flag to the OWCP claims examiner that is handling your case. A statement that you are totally disabled may also cause problems, including allegations of fraud, if you are observed doing any sort of physical activity outside of the work place while receiving benefits whereas there is no problem if you are ‘caught’ performing activities that are within stated restrictions.

The OWCP has a form for listing work restrictions called an OWCP-5 form. There are variations of this form depending on whether the injury is psychiatric/psychological (owcp-5a), cardiovascular/pulmonary (owcp-5b), or musculoskeletal (owcp-5c) in nature. It is critical that you ask your doctor to complete one of these forms in as much detail as possible. The forms can be downloaded from the Department of Labor’s website:
http://www.dol.gov/esa/owcp/dfec/regs/compliance/forms.htm

The form by itself is not sufficient evidence of your doctor’s recommended work restrictions. The doctor must also explain why he or she has imposed the specific restrictions and how the restrictions are necessitated by your accepted work-related condition. Please note that restrictions based on the fear of future injury, called ‘prophylactic restrictions,’ are not considered by OWCP in determining your right to wage-loss compensation. Rather, the restrictions must be based on the limitations currently caused by your injury such as severe pain, weakness, restricted range of motion, etc.

——-
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.

Hamic v. USPS, OWCP decision dated 03/6/07 – retroactive monetary and medical benefits awarded from 11/2004 to present based on successful challenge of a Second Opinion medical report that had claimed our client had recovered from a 2002 work injury.

Download Case PDF

Ronald ______ and Dept. of Navy, Port Hueneme, CA, OWCP decision dated 12/15/05 – retroactive workers’ compensation benefits of $56,000 plus ongoing benefits paid after successful appeal of improper benefit termination.

Download Case PDF

Download Case PDF

Download Case PDF