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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.

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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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

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.

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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.

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.

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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.

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Part three – a final example and conclusions

Here is one more typical example of a “stressful” work situation that recurs in our practice, which sometimes can lead to litigation or more serious problems.

Example 3 – [employee being sexually harassed]

scenario and possible legal claims:

A female civilian Defense Department employee working at a foreign military base is being sexually harassed by a male supervisor.  As a new employee, she has relied on the supervisor for guidance, and he uses his position of authority to offer her help with arranging daycare for her minor son, finding an apartment in the area, etc.  He begins visiting her at the new apartment, ostensibly to help in some way, but soon makes sexual advances that she rejects.  He persists, visiting her apartment unannounced, calling her there at all hours, and making increasingly direct threats that her performance appraisals might suffer if she doesn’t cooperate.  Several times she complains about all this to upper management, but nothing is done.

After several months of this, the female employee starts seeing a psychotherapist, who recommends taking a short break from work and possibly filing a discrimination (EEO) complaint. She files a complaint, and the supervisor denies any wrongdoing.  Meanwhile she is intermittently losing time from work, and her sick leave and annual leave balances are running low.  She is outraged that the supervisor denies what he did to her, but feels confident that at least some of her co-workers will support her allegations, because of some incidents that they observed happen both at work and at her apartment complex where many other government employees also live.  She learns, however, that some of her witnesses are reluctant to testify for fear of retribution.

Suggestions:

Employers simply cannot tolerate a subordinate being victimized like this.  Not only is this supervisor’s behavior illegal, giving rise to all kinds of expensive claims, but it also gives a loud and clear message to other employees about what they can expect from supervisors and what supervisors can “get away with”.  It’s not enough to simply adopt a policy against sexual harassment and post it on a bulletin board.  Employers must actively guard against these situations developing and take prompt remedial action whenever something like this starts to happen.

CONCLUSION

Even though our laws are not the equivalent of religious principles, they are based on the moral values of our society.  One can see from the examples given in this three-part article that a degree of human kindness and consideration for the plight of an employee goes a long way towards pointing the employer towards the proper legal response to the problem.  This is true even if the employer had nothing to do with creating the problem itself (as in Example 2 in part two, above).  Consideration for how an employee might feel in a situation, and what is in the best interests of that employee, can help avoid costly and difficult consequences.

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STEVEN E. BROWN has been representing federal employees for over thirty years, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints.  He has lectured before various groups on these and related topics for the past several years.  His 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.