Research Notes

Dan Goodkin Speaks at OWCP Litigation Group Conference

Contribution, not cause, is key in FECA casesIn May 2013, a group of federal disability attorneys belonging to the OWCP Litigation Group met in Washington, D.C. for a two day seminar on federal workers compensation. Dan Goodkin of the firm Steven E. Brown, PLC presented on two topics, Strategies for  Emotional or Stress Claims in the Federal Workplace and a second lecture on Interactions Between FECA Claims and EEO Complaints/ MSPB Appeals. The conference was attended by many of the most well known and respected federal disability lawyers in the country and included a discussion panel with the Chief Judge of the Employees’ Compensation Appeals Board.

Emotional claims, often referred to as stress claims, under the federal employees’ compensation act can often be very complicated and difficult cases to win. Many federal disability attorneys avoid stress claims or claims for an emotional condition as they tend to be contentious, difficult claims to win. Federal  agencies are likely to challenge any claim that alleges wrongdoing on the part of the agency or its employees. As anyone who has searched for an attorney who handles FECA claims knows, there are very few federal disability lawyers  and even fewer who will represent claimants in stress claims.

Many things that occur in the federal workplace are not covered under FECA. For example, administrative actions, such as disciplinary actions, monitoring employee behavior and bad performance appraisals are not covered under FECA unless the claimant can prove error or abuse on the part of the agency. This is difficult as the burden is on the claimant to prove that the action was erroneous or abusive by providing evidence that consists of more than the claimant’s allegation. Typically, OWCP will look to see if another administrative body, such as the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board has entered a finding of discrimination or has overturned the disciplinary action, or if the administrative action was found to have violated a collective bargaining agreement as the result of a union grievance. Absent an administrative finding of wrongdoing, many stress or emotional claims fail if the basis of the claim was an administrative activity.

An outline of activities in the workplace that are covered under FECA, and those that are not, is included below for download.

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Ethics in FECA representation

Some folks think that is an oxymoron to say “ethical Lawyer.” A frequent questions I am asked when I tell someone I handle workers compensation cases is, “How can you help all those people scam the system?” The answer is pretty simple. We don’t take cases if we know or suspect that someone is faking an injury, lying about the cause of their injury or trying to conceal evidence that is harmful to their case. If we take a case, it is because we believe in the client and believe they deserve the benefits they are seeking. We have also ceased representation when obvious evidence of dishonesty has  come to light.

People who abuse the federal workers compensation system harm every person who was legitimately injured on the job, those who need medical care and those who truly cannot go back to work. As discussed in a previous blog entry, such behavior leads claims examiners and politicians to believe that everyone is trying to cheat the government. These claims examiners then accuse claimants of faking injuries or hatching elaborate schemes to avoid going back to work. Politicians then begin to believe that dramatic changes to FECA are needed to prevent abuse when the fact is that only a tiny percentage of claims are found to be fraudulent.

Now, in our experience, the number of people that are trying to scam the system is incredibly small but it does happen.  Almost without  exception, our clients are hard working people who would much rather be back at work than sitting at home in pain. So, I can accept that occasionally we do help someone who might be scamming us and the system if it means that we help the vast majority of the people who do need and should get our help.

DMG 12-5-12

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