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.

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.