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MF-2: How ECAB Case Law Affects You
Nov. 7, 2012 2:30 pm – 3:45 pm
How ECAB Case Law Affects You
Presented by Alan J. Shapiro, Attorney at Law 216-927-2030 www.injuredfederalworker.com
Case Selection Criteria
LRP ECAB year in review is from Aug. 1, 2011 to July 31, 2012 because the submission date for publication was Sept. 1, 2012.
Cases were chosen that I felt would be of educational value for agency personnel.
Several ancient cases were cited as background for recent changes in the law.
I. Technicalities
Technicalities are important.
“The devil is in the details.”
Technicalities
T.G. and Department of Veteran Affairs,
112 LRP 18954 (ECAB 03/15/12).
It is important to distinguish between a traumatic injury claim (CA-1) and an occupational disease case (CA-2).
Technicalities
R.I. and U.S. Postal Service, 111 LRP 74749 (ECAB 11/25/11).
OWCP must show that it considered all evidence on file.
Technicalities
D.C. and Department of the Navy, 112 LRP 3747 (ECAB 01/06/12).
Statute of limitations starts to run when the employee receives confirmation of the diagnosis.
Agency should seek confirmation from the doctor as to whether the employment caused the medical condition.
Technicalities
R.B. and Department of Veteran Affairs,
112 LRP 3468 (ECAB 12/28/11).
District medical director is not an independent medical examiner.
The district medical director’s opinion may create a conflict, but cannot be determinative of the medical issue without an IME report.
Technicalities
L.K. and U.S. Postal Service, 112 LRP 6639 (ECAB 01/19/12). A suitable job offer submitted by the employer must consider all medical conditions, not just work-related medical conditions.
Technicalities
R.M and U.S. Postal Service, 112 LRP 17461 (ECAB 03/09/12).
Claimant’s representative must be notified of a decision to terminate or modify benefits or the decision is null and void.
Technicalities
C.E. and Department of Justice, 112 LRP 25101 (ECAB 04/25/12).
Notice must be sent to the correct address when the OWCP knows the address or any decision is null and void.
Technicalities
C.K. and Department of Homeland Security,
112 LRP 9634 (ECAB 02/08/12).
Income from criminal activities must be reported to the OWCP or forfeiture will apply – cash counts.
Technicalities
J.C. and Department of the Treasury,
112 LRP 9575 (ECAB 02/15/12).
The OWCP must read the report – or at least say it did.
II. Employee Misconduct
“Is it OK to lie, cheat, or smack your supervisor?”
Employee Misconduct
R.R. and U.S. Postal Service, 112 LRP 3566 (ECAB 12/19/11).
Statements inconsistent with the claim of injury may be used to deny the claim.
Statements made on Facebook and Twitter are fair game to be used to impeach the claimant’s credibility.
Employee Misconduct
A.H. and U.S. Postal Service, 112 LRP 14923 (ECAB 02/27/12).
A physical altercation with the supervisor arising out of an employment-related dispute is compensable.
It is not material which party is the aggressor.
Employee Misconduct
B.P. and Dep’t of Agriculture, 111 LRP 72712 (ECAB 10/20/11). Imprisonment for a nonwork-related felony only suspends benefits for the claimant. The dependents are still entitled to receive their portion.
Imprisonment without a conviction does not suspend benefits.
Conviction for a federal misdemeanor or felony for worker’s compensation fraud forfeits compensation but not medical treatment forever. There is no redemption.
III. Wage-Earning Capacity
“OWCP is not an employment agency.”
Wage-Earning Capacity
D.B. and U.S. Postal Service, 112 LRP 3809 (ECAB 01/12/12).
The job identified by the OWCP or offered by the employer must be equivalent in hours to the job the claimant had on the date of injury.
A part-time job is not a proper wage earning capacity job when the employee had a full-time job on the date of injury.
Wage-Earning Capacity
B.H. and Department of the Treasury,
112 LRP 4410 (ECAB 01/03/12).
A modified job, i.e., wage-earning capacity job, need not last forever.
A Functional Capacity Exam that shows the claimant has the ability to perform regular work, may be sufficient evidence to deny a claim for compensation when the limited-duty job has been withdrawn.
Wage-Earning Capacity
A.N. and U.S. Postal Service, 111 LRP 72842 (ECAB 10/26/11).
When the employer withdraws a limited-duty job offer, alleging there is no work available, the claimant is entitled to compensation when the medical evidence establishes that: • The claimant cannot perform regular work; • Restrictions are still in place; • There has been no wage-earning capacity rating; or • The claims examiner has set aside the rating.
Wage-Earning Capacity
M.A. and U.S. Postal Service, 112 LRP 40552 (ECAB 07/24/12).
The agency must prove to OWCP that the WEC position was an actual bona fide position.
The agency must explain how it can unilaterally withdraw a permanent position without regard to seniority rights.
The agency must establish that the job position was open to the general public or employees without physical limitations.
The agency and OWCP must follow FECA Bulletin No. 09 05.
IV. Loss of Vision
So what if you lost an eye – you have another one. So says the AMA, Guides to the Evaluation of Permanent Impairment (6th ed. 2009).
Loss of Vision
A.G. and Department of the Army,
112 LRP 19222 (ECAB 04/09/12).
When a claimant loses total vision in one eye, he is now entitled to the maximum award for loss of vision of the one eye.
Loss of Vision
R.L. and Department of the Treasury,
104 LRP 31858 (ECAB 06/21/04).
Claimant lost total vision in one eye, and was paid 60% loss of vision. When the eye was actually removed, the claimant was paid the additional 40%.
Loss of Vision
D.H. and Department of Defense,
110 LRP 39993 (ECAB 06/23/10).
Loss of total vision of one eye, but eye remained intact. Claimant awarded 50% loss of vision.
V. Fact of Injury
It’s a lot more than “I did not have it when I came to work, but now I have it.”
Fact of Injury
M.B. and U.S. Postal Service, 112 LRP 10620 (ECAB 02/15/12).
Claimant must be able to identify time, place and manner of injury. “Vague recitation of the facts is not sufficient.”
Fact of Injury
C.Y. and Department of Veterans Affairs,
112 LRP 9822 (ECAB 02/02/12).
Claimant must be able to identify a specific medical condition, may not file a claim for symptoms.
Fact of Injury
J.J. and Department of Justice,
112 LRP 25299 (ECAB 04/23/12).
Fact of injury and causal relationship are two separate concepts. Causal relationship is not assumed – it requires substantial, reliable, and probative evidence.
Fact of Injury
M.C. and Department of the Interior,
112 LRP 23465 (ECAB 04/02/12).
What happens when medical science states that there are no tests to establish a medical condition and diagnosis must be made on the basis of symptoms? ECAB says: Send it back for another report.
VI. Performance of Duty
“Exercise is not necessarily good for you.”
Performance of Duty
E.A. and Department of Defense, 112 LRP 17855 (ECAB 03/14/12).
Injury while exercising, in order to meet the physical requirements of the job, is not in the performance of one’s duty unless specifically supervised by the employer. Even providing the equipment may not be sufficient to establish a compensable claim.
VII. Bonus Topic - Fraud When Big Brother is Watching You
Fraud
F.S. and U.S. Postal Service 112 LRP 48519 September 26, 2012
When Big Brother Goes too Far!
OWCP must disclose the existence of videotape evidence to the claimant before it is shown to the doctor.
Claimant must be given the opportunity to comment on the evidence before the physician is contacted.
The employing agency may not contact the treating physician. It is OWCP’s obligation to send the videotape to the treating physician.
Evidence obtained by direct contact with the treating physician is inadmissible and can not be a basis for termination of benefits.
The Office of Inspector General does have the right to conduct investigations in accordance with its rules and regulations. However, the use of the evidence must comply with the rules and regulations of OWCP.