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.