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.

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.

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.

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.

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?

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).