Research Notes

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?

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