Research Notes

EEOC voids all Postal Service denials of individual damage claims in NRP class action

In an order dated 11/07/2018, the Equal Employment Opportunity Commission (EEOC) ordered the U. S. Postal Service to vacate (void) all its premature orders denying damage claims filed by thousands of Postal employees in the National Reassessment Process (NRP) class action. A copy of this order is posted.

Download and read the full decision here

Class counsel, and individual counsel such as our firm representing some of these Postal employees in their damage claims, had argued that the Postal Service's denials of the claims were premature. The Postal Service had been found guilty of failing to provide reasonable accommodation to disabled Postal employees, and was required to notify all class members of that finding and of their right to file damage claims. Once the affected employees filed damage claims, however, the Postal Service then denied nearly all of them based on its assertion that the claims were not detailed enough. Yet the EEOC's procedures allow such claims to be adjudicated by an Administrative Judge, to include the conduct of a hearing where necessary, so the individual can have a forum in which to present his or her damage claim in full.

The EEOC agreed with the complainants' position, and ordered the Postal Service to start over again in the processing of these damage claims. Many of the claims may be substantial, in that the crux of the issue in the NRP class action was the Postal Service's failure to accommodate disabled employees, who then lost wages, were forced into retirement, etc. when no suitable Postal work was offered to them.

NOTE: Following complaints from FECA (Federal Employees' Compensation Act) claimants and their counsel, the Office of Inspector General (OIG) of the U.S. Department of Labor (USDOL) recently issued a report about whether the doctors chosen by OWCP (USDOL Office of Workers' Compensation Programs) to evaluate injured workers were qualified and impartial. The report, dated 12/21/2018, concluded that "OWCP's procedures for second opinion and referee medical examinations were designed to provide reasonable assurance that the agency used qualified and impartial second opinion and referee physicians." Of interest is that, earlier in 2018, OWCP lost a FOIA lawsuit filed by WILG member John Evangelisti which claimed that, at least in Colorado, OWCP's doctor selection procedures were both secret and highly suspect. The court ordered OWCP to divulge data about the procedures, and the data showed that OWCP uses the same doctors over and over again in the FECA program. The OIG report failed to make any mention of that lawsuit.

Posted in Blog

WILG continues meeting with USDOL and OPM decision-makers

In mid-April, my partner Dan Goodkin and I, as members of the FECA [Federal Employees' Compensation Act] Section of WILG [Workers' Injury Law & Advocacy Group] traveled to Washington, DC for what are now our annual meetings with top officials at OWCP [U. S Department of Labor, Office of Workers' Compensation Programs] and ECAB [U. S Department of Labor, Employees' Compensation Appeals Board].

The first of these meetings Dan and I attended was held in October 2015, and now they encompass productive give-and-take discussions between the FECA claimants' bar (the vast majority of whom are members of WILG) and the decision-makers who manage FECA -- the only workers' compensation program that covers the approximately 3 million federal civilian employees. Dan attended as co-chair of the FECA Section, and I attended as a member of WILG's Federal Legislative Committee. Over time we have also added meetings at the U. S. Office of Personnel Management [OPM] with top officials there who manage the system of retirement benefits for federal employees, as well as meetings with interested parties on Capitol Hill.

At OWCP we expressed our appreciation for the openness with which we have been met at various OWCP offices and the dialog that has developed. Topics discussed included ways to improve communication between OWCP and claimant's attorneys in terms of the latter being copied on the complicated earnings questionnaires sent to our clients, and our being able to talk to OWCP nurse case managers, We also discussed what level of proof is required to exclude a medical examiner as biased against the injured worker, and what additional efforts OWCP should make to develop the record in emotional stress cases. Finally, we pointed out the problem that OWCP hearing representatives frequently do not address the legal arguments or the testimony presented at hearings when they issue their decisions, which of course leaves one to wonder what law applies and what facts were considered relevant. While agreement was not reached on all issues, inroads were made and we expect some changes soon. We invited OWCP personnel to attend WILG's annual convention in the Fall, as they have at our invitation for the last two years; their appearances and presentations have been well received and appreciated.

We also met with the Chairman and Chief Judge of ECAB, and are following up with him on topics such as the need for ECAB to issue final decisions, simplification of some appeals processes including attorney fee approvals, transcripts of oral arguments made before the Board, etc.

At OPM, we complimented the officials on the informal mechanisms we've been able to establish to correct errors specifically in disability retirement cases. Federal employees who become disabled after being in the job a sufficient length of time can retire early if their disability -- whether work-related or not -- is permanent and either renders them unable to perform their duties or is incompatible with useful and efficient service in the job. Benefits in such cases are less than workers' compensation and are taxable, but are payable in full even if the worker is able to obtain a lower-paying non-federal job.

On Capitol Hill, we joined other WILG members in lobbying for the interests of injured workers, including protection of workers' compensation benefits and hard-won federal employee job security and due process rights. In this age of hyper-partisanship, the value of having a professional federal civil service free from compromising political manipulation is perhaps greater than ever.

NOTE: The House Committee on Education & the Workforce held a hearing on May 8, 2018 on the subject of OWCP's response to the opioid crisis as it relates to injured federal employees covered under FECA. The general consensus of the witnesses was that, despite some changes initiated last August, FECA is behind the times in this regard, with insufficient policies and procedures to control over-prescription of opioid medications. We will keep you informed of developments on this issue.

Posted in Blog, FECA, OWCP

U. S. Postal Service National Reassessment Process (“NRP”) is found to be discriminatory, and damage claims can be filed now.

More than ten years ago, the Postal Service started a program in which it "reassessed" the duties of its employees and sent many of those with disabilities home without pay, claiming there was "no work available" for them. This practice, targeting as it did the employees who had a disability, has now -- after ten years of class action litigation -- been found to be discriminatory against those employees under the federal Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (as amended).

One of the law suits this process prompted was Latham v. U. S. Postal Service, a Merit Systems Protection Board case (Docket No. DA-0353-10-0408-I-1, reported as 2012 MSPB 20, issued on 02/24/12) in which WILG (Workers' Injury Law & Advocacy Group) and NELA (National Employment Lawyers Association), through several of its members including the undersigned and my partner Daniel Goodkin, filed an amicus curiae brief in favor of the affected workers. That case held that the NRP violated various provisions of the union contract and federal regulations about returning partially recovered injured workers to work at the Postal Service, providing them with a reasonable accommodation, etc..

The main law suit challenging the NRP was a class action filed with the Equal Employment Opportunity Commission (EEOC) based on disability discrimination -- McConnell v. USPS, EEOC Appeal No. 0720080054. In that case a final decision has been rendered in favor of the injured workers.

If you were a Postal employee whose duties were reassessed under the NRP anytime from May 5, 2006 through July 1, 2011 you can now file an individual claim for monetary damages or other relief. Such claims can include harassment you were subjected to because of the NRP. The deadline for filing these claims is April 12, 2018. The claim must reference EEOC Case No. 520-2010-00280X and Agency No. 4B-140-0062-06. If you think you qualify and have questions about the claim process, you can contact our office and we will provide further information.

NOTE: Regarding administration of the Federal Employees’ Compensation Act (FECA), WILG members have recently followed up on our November 2017 meeting with OWCP District Office leadership in San Francisco with a similar meeting at OWCP's District Office in Jacksonville. We anticipate further meetings of this sort this year, along with our traditional meetings with OWCP national leadership in Washington, DC this Spring.

Posted in Blog

WILG FECA Section members meet with Western Region OWCP leaders

As mentioned in previous newsletters, it is one thing to know the law and quite another to watch how it is administered.

This is particularly true in the area of FECA workers' compensation claims for federal employees under the Federal Employees' Compensation Act, administered by the U. S. Department of Labor, Office of Workers' Compensation Programs (OWCP).

For some time, we have been working with OWCP's National Office to resolve problems in cases where OWCP decisions made at the local level were, in our opinion, clearly wrong based on OWCP's own rules. Eventually the National Office suggested to us that perhaps a meeting at our local District Office could be helpful.

So in an attempt to resolve issues around how this law is administered, back in November our office met in San Francisco with many of the USDOL personnel who administer FECA in several Western states. We had asked for a meeting with Susan Pearlman, the District Director at OWCP's San Francisco office (DFEC District 13), to address issues of concern about how this law is administered at OWCP's offices around the country. The San Francisco OWCP office has jurisdiction over claims by injured federal employees in California, Arizona, Nevada, Hawaii, and Guam.

To our pleasant surprise, Ms. Pearlman brought with her most of her senior claims staff as well as her Regional Director from Seattle. So instead of a meeting with one or two people, we (my partner Dan Goodkin, paralegal Jessica Duncan, and me) met with a roomful of about 15 people.

Our agenda was straightforward - we wished to (and did) discuss how it's possible to avoid issues like: OWCP's seeming inability to deal with urgent issues that arise in a claim (like a need for surgery authorization), non-response to phone calls from claimants' attorneys, claims being denied on bogus grounds like "no medical report received" when it was electronically uploaded to the OWCP file, decisions being made without review of medical evidence that was uploaded, claims being denied due to input from the employer that was not shared with the claimant's attorney, etc. On these issues, a protocol was agreed upon, setting forth whom we should contact, and in what order, to try to resolve such issues.

We also raised a more substantive issue involving the level of proof on causal relationship that is required, namely: Why does OWCP insist that a doctor explain the "mechanism of injury" in every case, even where it's obvious? We were advised that in cases where an injury is "obvious to visual inspection" no causal relationship medical opinion is needed. This is a bit different from the OWCP FECA Procedure Manual Chap.2-805.3(d)(1), which says:

(1) In clear-cut traumatic injury claims, where the fact of injury is established and is clearly competent to cause the condition described (for instance, a
worker falls from a scaffold and breaks an arm), a fully rationalized medical
opinion is not needed. The physician's diagnosis and an affirmative
statement are sufficient to accept the claim.
We'll have to see whether OWCP starts to take a more common-sense approach on this issue.

We also raised the sensitive issue of claims examiners denying claims based on their disagreement with the doctors' opinions - despite their lack of medical training. We were told that claims examiners "can't play doctor", and will get criticized by their superiors if they do that. Again, time will tell if this practice is going to be curtailed.

The meeting was substantive and cordial. After our meeting, Ms. Pearlman led us on a tour of the OWCP offices, where we met in person many of the claims personnel with whom we've been dealing for years.

So we have been operating within this new protocol for a couple of months now. The jury is still out as to whether it will work, to the benefit of all concerned (especially injured workers). We'll report periodically on the status of this initiative.

NOTE: An interesting article published on January 26th reveals the results of a study about the effects of employers' control over the medical treatment of injured employees. The study concluded that employer-directed choice of doctors has the effect of driving claimants to attorneys, thus erasing any savings in medical costs.

Posted in Blog

Unpredictability of OWCP decisions in FECA claims creates uncertainty that hurts productivity and employee morale.

In our practice representing federal employees, we find it is one thing to know the law and quite another to watch how it is administered.

This is particularly true in the area of FECA - workers' compensation claims for federal employees under the Federal Employees' Compensation Act. We have written recently about the problem of administrative decisions that seem to make no sense, logically or legally, but which can nevertheless have devastating effects on our clients. This is especially true where the administrative process violates basic constitutional principles of due process of law. Here are a few recent examples of practices by the U. S. Department of Labor (USDOL) and its Office of Workers' Compensation Programs (OWCP) that thwart the purposes of the law.

  • Case #1: OWCP recognized that an injured worker was entitled to an award for permanent partial loss of use of his arm, but the claims examiner refused to process the payment because the worker was also entitled to awards for other body parts, and those awards had not yet been calculated. The claims person said he wanted to "process them all at the same time" -- but meanwhile the injured worker gets paid nothing (with no interest or penalty for the delay).
  • Case #2: OWCP's message system created havoc. The system allows a caller to leave a voicemail with details of the client, case number, and reason for the call. But when attorneys leave such messages, OWCP claims examiners don't bother to listen to them, instead opting to just call up the injured worker. The worker, of course, isn't always aware of the call or why it was placed; so the worker gets panicked and confused and the claims examiner wastes time.
  • Case #3: OWCP accepted a claim but refused to pay lost wage benefits for periods when the client was on (unpaid) Family Medical Act leave. The law says wage loss benefits can't be paid for periods when the worker is on paid leave, but this distinction is somehow lost on the claims examiner.
  • Case #4: OWCP accepted a claim and was paying wage-loss benefits for 6 hours per day for periods after the employer offered light duty for 2 hours per day. A claim for total (8 hours per day) wage-loss benefits for prior time off was denied on the basis that the employer made the light duty job offer and the employee rejected it -- but it's obvious that that job offer was not made until after the period in question so the employee could not possibly have rejected it..
  • Case #5: In a related type of case that seems to be recurring more often, OWCP accepts a claim but refuses to pay wage-loss benefits on the basis that the employer - after the fact - says it "would have" made a job offer earlier. In several such cases, the injured worker provides documentation that s/he asked for work repeatedly, only to be ignored or turned down by the same employer; but the OWCP claims examiner always seems to believe the employer's self-serving statements in this situation. Result: lost wage benefits are denied in violation of the law, based on obviously flawed logic.

Do these practices seem fair to you? In my opinion these claims-handling methods do not assist in reaching a fair resolution for any stakeholders in the system and cannot be justified. They create unnecessary financial hardship in a system that does not provide for interest or attorney fees to be added to benefits when payments are delayed. Employees hear about them and lose confidence they will be compensated if they get injured. Employers see opportunities to "game the system" and take advantage. Claims handling procedures are well beyond the reach of the courts, which have no jurisdiction even over challenges to formal decisions in such cases. When there is no incentive for the government's self-insured system to work properly, and no real accountability for OWCP employees using such tactics, there is no adequate remedy for the injured worker.

NOTE: Congress recently passed laws that limit the civil service rights of VA employees. Many feel such changes are the "tip of the iceberg", signaling similar erosion of federal employee rights generally. The problem, of course, is that federal employees do important work for the country and must be shielded from the whims of the current political climate -- regardless of which party is in power.

Posted in Blog, FECA, OWCP

ECAB continues to issue inscrutable decisions in FECA claims

ECAB continues to issue inscrutable decisions in FECA claims that mask due process constitutional problems.

It is frustrating, to say the least, for attorneys to get administrative decisions that seem to make no sense, logically or legally, when those decisions adversely affect their clients. This is especially true where the administrative process violates basic constitutional principles of due process of law. Here are a few recent examples of U. S. Department of Labor (USDOL) decisions involving the Federal Employees' Compensation Act (FECA - workers' compensation for federal employees) that implicate constitutional violations at USDOL.

In two of our recent appeals, DOL's Employees' Compensation Appeals Board (ECAB) made decisions that turned a blind eye to blatant unfairness imposed on the injured workers.

In the first case, our client filed a claim for a traumatic back injury, it was denied by DOL's Office of Workers Compensation Programs (OWCP), and she filed an appeal with ECAB.  ECAB said the medical report from the primary treating physician was not good enough, but did not cite any flaws whatsoever in his report and in fact quoted extensively from his lengthy discussion of the medical rationale supporting his opinion that the injury contributed to the herniated disc she suffered. ECAB sent the case back to OWCP for "further development". OWCP sent her to a government-chosen doctor who said the injury did not contribute to her back problem. OWCP denied the claim again, without even mentioning the treating doctor's report. So we filed another appeal with ECAB, which then ruled (1) the government's doctor's report was sufficient to deny the claim, (2) it had already decided that the treating doctor's report was not good enough so they would not look at it "again". We then filed a Petition for Review at ECAB, arguing that the Board never cited any flaws in the treating doctor's report and was letting OWCP ignore his report for no reason.  ECAB then denied our Petition, saying that since OWCP had not discussed the treating doctor's report in its most recent denial decision then the Board "cannot" look at that report since it is "res judicata" (an already decided issue).  In fact, the Board is empowered to make final decisions on all issues in FECA cases, and is not limited to facts found by OWCP or even the issues decided by OWCP.

In the second case, after an industrial injury our client was offered a light duty job; he responded asking questions about the job and expressing concerns about whether he could safely perform the job duties.  His employer never responded.  OWCP proposed to terminate his wage-loss benefits based on the job offer; in its letter OWCP did not mention any response the employer had made to his questions and concerns. OWCP then terminated benefits based on availability of the light duty job, again not mentioning any employer response. We filed an appeal with ECAB.  The Board ruled that, based on an employer response to his concerns, the job was within his medical capability. We then filed a Petition for Review with the Board, arguing that (1) this employer response was never sent to us or our client when the benefit termination was either proposed or effected, (2) had our client known about this response he would have accepted the job offer, and (3) it is fundamentally unfair to make such a decision without advising the injured worker of all the facts. In denying our Petition, the Board said that the employer's response was "in the record" so there was no due process violation, or at least counsel had not explained how there could be one. In fact, our entire Petition was a detailed discussion of why OWCP's failure to provide the employer's response - or even reference its very existence in any way - was a denial of basic due process.

Do the decisions summarized above look fair to you? Administrative decisions made by OWCP and ECAB in FECA cases cannot be appealed to federal court -- except where the constitutional rights of the injured workers are denied. Due process of law is a constitutional right of all citizens.  If USDOL persists in making decisions like those above, attorneys will be exploring court challenges to them in order to inject more basic fairness into this process.

Posted in Blog

OWCP clarifies schedule award procedures

OWCP clarifies schedule award procedures, including how pre-existing or nonindustrial medical conditions affect these important permanent disability awards.

There have been persistent problems in Federal Employees' Compensation Act (FECA - workers' compensation for federal employees) cases in the amount of awards for permanent impairments.  Under the law, there is no "apportionment" - that is, if the employment contributed to any degree to the medical condition causing the disability, the entire disability is covered in full.

But OWCP claims examiners and their examining physicians have for years been calculating some awards based only on the work-related portion of the disability or impairment.  For example, a worker with pre-existing arthritis in his right knee who injures it at work, requires surgery for a torn meniscus, and now has more knee impairment due to both medical conditions would be incorrectly evaluated with regard to the surgical result only, ignoring the arthritis which is also affecting his knee and contributing to a higher level of impairment.

That has never been correct, and has resulted in large numbers of appeals that had to be filed just to point out that there is no apportionment in these cases and therefore the awards should be higher. After repeated complaints about this from our office and others, USDOL has finally clarified the issue.

In FECA Transmittal No. 17-02 issued on March 24, 2017, OWCP revised its Procedure Manual to clarify a number of things regarding permanent disability schedule awards:

  1. When OWCP's District Medical Advisor ("DMA" -a doctor) disagrees with its Second Opinion doctor on an issue, this disagreement doesn't create a conflict in medical evidence requiring yet another evaluation.
  2. When OWCP has already sent the injured worker to a referee (independent) medical examiner, there is no need for the government to have the DMA review the referee's opinion.  Referees see injured workers where the treating doctor and the government 's doctor disagree  This change only applies, however, when the referee's report fully resolves the earlier conflict in medical opinions and provides a through explanation of the medical impairment.
  3. There are no provisions for apportionment in FECA, so impairment ratings should include both work-related and non-work-related impairments to the affected body part.

The third item above is the most important one.  This should result in larger and more timely schedule awards for injured federal workers where, before, errors had been made in the award calculation that resulted in appeals and other challenges.  If the awards are going to be calculated correctly, we can avoid costly appeals and the correct (higher) amount of benefits can be paid in a timely manner.

Further, this change clarifies that the disability rating must include all conditions affecting the affected body part as of the time of the rating examination.  This means that, theoretically, a worker could suffer another injury after the industrial one but before the rating exam, and the effects of that extra injury would also have to be included in the rating. It also means that the effects of any other non-industrial injuries have to be included in the rating as well.


All this makes sense administratively in a non-adversarial system. Litigation in other workers' compensation systems is often complicated by the need to apportion disabilities, ascribing a percentage to different causes -- but those are adversarial systems where both sides have attorneys and a judge makes the decision. FECA is not designed as an adversarial system that could handle such disputes. It also of course makes sense legally, since the rule against apportionment means there is no need to attribute percentages to the various causes. Practically speaking, it is difficult anyway for a doctor to determine how much the knee (in the above example) was affected by more than one cause.

The other two items above are unobjectionable and should result in faster adjudication of such claims.  Considering how slow OWCP is to finalize so many actions on FECA claims, this could speed up some claims.

There are other types of awards for permanent injuries in FECA claims, including lost wage benefits for both total and partial disability, but those are not affected by this change in the Procedure Manual.

NOTE: So far, the new Congress has not made any legislative proposals affecting FECA. We will continue to monitor this situation and report on any developments.

Posted in Blog, FECA

A string of positive ECAB decisions may signal a trend toward more fair appeals rulings in FECA cases.

Over the past few months we have received about a half dozen positive decisions from the Employees' Compensation Appeals Board in Washington in cases filed under the Federal Employees' Compensation Act (FECA).  A quick summary of some of them can give an idea of why we think this might be significant.

In I.D. and USPS, ECAB Docket No. 2016-0581 (12/12/16), ECAB ruled that an employee's emotional reaction to sexual harassment plus the employer's failure to investigate her complaints about it was work-related -- even though she and one of the supervisors involved had previously been in a consensual sexual relationship and the supervisor, with the female employee's knowledge, had made a video of them engaging in a sexual act.  After the relationship ended, the supervisor then brought the video to the workplace and showed it to other employees, with the result that many workers saw it and she became distraught and unable to work there. OPINION: This decision shows the Board is willing to look beyond obvious facts, such as the consensual nature of the prior relationship, to consider how the employment contributed to the disability under a specific set of facts.

In T.M. and Dept. of Interior, ECAB Docket No. 2016-1262 (01/11/17), ECAB ruled that OWCP had improperly denied disability benefits for a 7-year period.  The employee had slipped on ice and struck her body against a car in 2006, and resigned from her position a few months later. OWCP had initially accepted only a lumbar strain as work-related, despite an MRI showing dislocated cervical vertebrae, had later accepted aggravation of DDD and depression as work-related, but had [improperly] denied benefits on the basis that she had voluntarily resigned. The Board held that, since OWCP had not gotten clarification from its Second Opinion medical examiner about a change in the work restrictions, it had not developed the record "in a fair and impartial way", and could not just deny benefits when a crucial issue had not been developed. OPINION: This case shows the Board is willing to insist on fairness in the OWCP decision-making process - it even mentioned "justice" in its decision.

In T.L. and Social Security Admin., ECAB Docket No. 2016-0672 (08/24/16), ECAB ruled that OWCP had terminated, and the Branch of Hearings and Review had upheld, an improper termination of benefits for an SSA claims representative based on her refusal of a limited-duty job.  The Board found there was conflict in medical evidence about whether the job offered was suitable in light of the work restrictions.  It also found that OWCP had not considered all the employee's work restrictions, whether work-related in origin or not, as is required. OPINION: This case shows the Board will look closely into the bases for OWCP decisions and reverse them where appropriate.

In P.P. and USPS, ECAB Docket No. 2015-0522 (06/01/16), ECAB ruled that the employee with pre-existing Parkinson's Disease had proved he suffered a traumatic injury (fractured hip) on the job when he stepped over and to the left of a "wet floor" sign, lost his balance and fell. OWCP had denied the claim, saying no employment object had intervened with the fall. One doctor said the employee had to step around the sign an awkward manner and that contributed to the fall. Another doctor said having to work overtime that day contributed to a worsening of his neurological condition, causing increased gait and balance problems. The Board ruled this was not an "idiopathic" fall, which would not be compensable, but rather was an "unexplained fall", which is.  It ordered the case back to OWCP to determine the extent of injury and disability. OPINION: This case shows the Board will require OWCP to prove "idiopathic" falls, and where it fails to meet that burden of proof the claim will be accepted.

NOTE: It is unclear how the just-announced federal hiring freeze will play out in the federal sector. Exactly which agencies will it apply to?  Does it apply to civilian employees of military departments?   Does it apply to the Postal Service, whose employees no longer technically work for the federal government?  Will it make federal managers hesitate to fire bad-performing employees, knowing they will not be able to replace them?  Does it mean that the Merit Systems Protection Board in Washington DC, which currently lacks a quorum to issue decisions, will be out of business indefinitely?

Posted in Blog

How the Social Security Administration paid $30,000 for a $75 space heater for one of its employees

This is a story of how bureaucratic intransigence and, one could say, stupidity resulted in prolonged hardship for a federal employee and unnecessary expense to the U. S. taxpayer.

An employee of the Social Security Administration (SSA) - an administrative judge who renders decisions on Social Security Disability (SSDI) claims - was using a space heater in her cubicle to combat the symptoms of her osteoarthritis. She had permission from her boss, the chief judge, to do so, and this worked fine for about a year. She needed the space heater so her hands would not become stiff and painful, which made it very hard for her to do things like handle documents and concentrate on her work.  Her doctor had even written a note, which her supervisor had been given, saying she needed the space heater because of her osteoarthritis.

Then her boss retired, and a new chief judge arrived on the scene. He noticed our client's space heater, and soon thereafter in February 2015 he issued a memo saying no one at the office could use a space heater. Our client then showed him the letter from her doctor saying she needed to use it, but he refused to honor it and ordered her to remove the space heater from her office immediately.

Our client filed an employment discrimination complaint based on disability. In response, SSA told her various false and inconsistent things, including:

  1. osteoarthritis is not a disability (even though federal anti-discrimination laws and SSA's own regulations regarding SSDI claims say the opposite)
  2. space heaters are not allowed per the terms of GSA's lease of the office space from a private party (even though that private party's management company provided another lessee with a space heater to use)
  3. her boss has no authority to grant permission to use the space heater
  4. her boss is the only person who could grant permission to use the space heater
  5. her prior boss's letting her use a space heater was not a "formal" accommodation, so SSA had not withdrawn a prior reasonable accommodation
  6. use of a space heater is against SSA policy (even though that policy had an exception for reasonable accommodations), and
  7. she should try other ways to keep warm such as wearing gloves (have you ever tried typing with gloves on?)

This month, our office settled the discrimination complaint.  The basic terms of the settlement were that SSA would provide our client with a space heater (which cost SSA $75) as a reasonable accommodation to her disability, would pay her $15,000 for her pain and suffering for having to work in pain for over a year and a half without a space heater, and would pay $15,000 in reasonable attorney fees.

We found it frankly baffling and quite ironic that a chief administrative judge who himself was a disability expert would take the inexplicable position that osteoarthritis "is not a disability" and therefore our client was not entitled to protection, including the right to reasonable accommodation, under the anti-discrimination laws. We found it discouraging that the attorney representing SSA went along with this nonsense for over year before offering a reasonable settlement, making various excuses like how long it would take to get authority to settle from someone high enough in the SSA's chain of command.

Even more confusing was the fact that SSA had already fought this battle (a space heater as a reasonable accommodation) in two other cases and lost - cases we cited to SSA's attorney months before the settlement. Meanwhile, litigation costs and our client's frustration mounted.

Moral of the story -- Never underestimate the lengths to which some bureaucrats will go to obfuscate issues and defy logic in attempting to justify a wrong-headed decision.

NOTE: ECAB recently ruled that OWCP has not been making consistent decisions in awarding permanent disability ratings under FECA on arm impairments, and has ordered OWCP to revise its procedures to do so.  See T.H. and USPS, ECAB Docket No. 14-0943 (11/25/16).

Posted in Blog

FECA practitioners merge into one unified bar group

At the annual convention of WILG (Workers' Injury Lw and Advocacy Group) in Arizona last month, the country's two groups of attorneys who represent FECA (Federal Employees' Compensation Act) claimants completed their merger and became one group - the FECA Section of WILG.  WILG is the nation's only "stand-alone" professional association of attorneys who represent injured workers in their workers' compensation claims. WILG has well over 1,000 members, and members practicing workers' compensation law in every state and in every federal jurisdiction.

The significance of this development is that, for the first time, the interests of injured federal workers can be spoken for with one voice -- that being a voice with a presence on Capitol Hill and an ongoing dialog with those at the U. S. Department of Labor who run the FECA system.

At the Arizona convention, FECA attorneys from across the country assembled, gave presentations, and interacted with other stakeholders in the FECA system, including two representatives of the USDOL National Office from Washington, DC, a local Arizona doctor involved in these cases, and a federal employee union leader also from DC.

Topics covered on FECA included a review of the year's most significant cases handed down by the Employees' Compensation Appeals Board (ECAB), hearings and appeals procedures, the role of unions in FECA, medical issues, attorney fees, financial planning for federal employees, the Renzi case, and a "report from the inside" presented by high-level USDOL personnel.

My partner Daniel Goodkin presented a detailed statistical analysis of ECAB decisions issued over the last two years, showing alarming trends which have been discussed here in prior newsletters (e.g., treating doctors never being given the benefit of the doubt over the government's Second Opinion doctors).  I presented a summary of developments in DC regarding FECA, including legislative proposals and my meetings with USDOL personnel this year.

Dan and I also received Special Recognition Awards from WILG for our work on behalf of the FECA Section, including the merger mentioned above.

NOTE 1: OWCP has taken some action on the compounded medications issue mentioned in our last newsletter, and is planning to do more. Word is that they will follow the lead of other insurers like TriCare and impose limitations on payments for these personalized medications in light of both their extremely high cost and serious questions about their medical efficacy.

NOTE 2: A recent ECAB case in which the Board's majority did not rule in favor of the claim, but in which Chief Judge Christopher Godfrey issued a strongly-worded dissent, got top billing on the ECAB review segment -- more on that case later.

Posted in Blog, FECA