WORKERS COMPENSATION

1
Federal Workers Compensation Basic Training
Course - Breakout 8
4th Annual Federal Workers Compensation
Conference Dallas, Texas
David L. Hull, MBA Workers Compensation Program
Manager Mid South Healthcare Network (VISN 9)
2

• Major Topics
• Willful Misconduct/Intoxication
• Disciplinary/Adverse Actions
• Erroneous Personnel Actions
• Agency Medical Exams
• OWCP, Leave and EEO interactions

3

• WHITE HOUSE TO TACKLE FECA PROGRAM
• FECA CHANGE PROPOSED
• Add an administrative surcharge to the amount
  billed to federal agencies for FECA compensation
  costs related to their employees, bolstering
  their incentive to improve workplace safety
• Excerpt from Fed Week 3/11/02

4
PURPOSE OF WORKERS COMPENSATION

• To provide compensation and medical benefits to
  civilian employees of the Federal Government for
  personal injury or illness sustained while in the
  performance of duty.

5
Traumatic Injury

• A traumatic injury is a wound or other condition
  of the body caused by external force, including
  stress or strain. 
• The injury must occur at a specific time and
  place, and it must affect a specific member(s) or
  function(s) of the body
• Must be caused by a specific event or incident,
  or a series of events or incidents, within a
  single day or work shift
•  

6
Traumatic Injury (Examples)

• On August 23, 2001 at 1100 am
• Employee A fractured his knee when he fell down
  the steps as a result of a spill
• Employee B hurt his back lifting boxes

7
Occupational Condition

• Is a condition produced by the work
  environment over a period longer than one work
  day or shift.  The condition may result from
  infection, repeated stress or strain, or repeated
  exposure to toxins, poisons, fumes or other
  continuing conditions of the work
  environment. The length of exposure, not the
  cause of the injury or the medical condition
  which results, determines whether an injury is
  traumatic or occupational. 

8
Traumatic Injury Vs. Occupational Illness

• When an employee is exposed to toxic fumes for
  one day, the incident is considered a traumatic
  injury. 
• If the employee is exposed to toxic fumes for two
  or more days-more than one shift, the incident is
  occupational illness. 

9
Investigate and Document

• Employing agency is responsible for the
  investigation and submission of evidence when an
  employee claims an on-the-job injury.
• Investigate accident to include
• Employee statement
• Witness statements
• Medical notes
• Supervisors statement
• Any other relevant information
• All evidence must go to OWCP with the claim.

10
QUESTIONABLE ISSUES

• Was the injury caused by
• Willful misconduct
• Intoxication by drugs or alcohol
• Intent to injure self or others
• These are BARS TO COVERAGE

11
EMPLOYEES STATEMENT

• Full account of activities preceding the injury
• Were intoxicants consumed - how much
• Full description of how injury occurred
• Explanation of whether injury was caused by
  intoxication

12
STATEMENTS FROM WITNESSES

• Description of employees activities preceding
  the injury
• Conduct and outward symptoms
• Belief whether the injury was caused by the
  employees intoxication
• Explanation for this belief

13
INTOXICATION

• Extent to which employee was intoxicated at time
  of injury
• The manner in which the intoxication caused the
  injury

14
EVIDENCE OF INTOXICATION

• Description of employees activities preceding
  the injury
• conduct and outward symptoms
• Belief that injury was caused by employees
  intoxication
• Detailed explanation for this belief

15
STATEMENTS FROM CO-WORKERS

• What do they know about the injury?
• How was the injury sustained?
• In what activity was employee engaged?
• How did they acquire this knowledge?

16
WILLFUL MISCONDUCT (continued)

• Is not simple negligent disregard willful
  disregard requires intent
• Disobedience of orders may negate the right to
  compensation only if the disobedience is
  deliberate and intentional, as distinguished from
  careless and heedless

17
WILLFUL MISCONDUCT

• At the Time of Injury was the Employee
• Violating a Safety Rule
• Disobeying other orders of the employer

18
Evidence

• Identification of particular safety rule/order
  violated
• How, when and how often the employee and
  co-workers were informed of the rule/order
• How has the rule/order been enforced -
  Disciplinary Action?
• Was injury caused by factors which are barred for
  coverage?

19
EMPLOYEE AWARENESS

• Was the employee aware of safety rule/order
• How was s/he informed of the safety rule/order
• Reason, if any, for violating the rule/order
• What was the employee doing at the time of injury
  - part of assigned duties?
• Previous violations and Supervisory awareness of
  violations

20
INTENT TO HARM

• Ones mental attitude, including purpose, will,
  determination, etc., at the time of doing an act.
• Intent must be derived inferentially from
  circumstantial evidence, and all of the evidence
  must be considered.

21
ASSAULT

• 1. Willful attempt to inflict bodily injury upon
  another
• 2. An apparent ability to do so and
• 3. An intentional display of force which gives
  the victim reason to fear bodily harm

22
INVESTIGATION OF INJURIES

• CONCLUSIONS - Can you prove the injury was caused
  by
• Willful Misconduct?
• Deliberate intent to injure?
• Intoxication?
• (Or was it plain everyday carelessness or
  negligence?)

23
EMOTIONAL REACTIONS(Stress Claims)

• When are they covered?
• Carrying out assigned duties
• Error or abuse in an administrative matter.
• When are they self-generated?
• Personnel or administrative actions.
• Outside the scope of employment.

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STRESSES NOT COVERED

• Fear of a reduction in force
• Frustration from not being allowed to work in a
  particular environment or job
• Feeling of job insecurity
• Desire for a different job
• Any personnel or administrative action

25
STRESSES NOT COVERED (continued)

• Performance evaluations
• Any grievance or EEO claim/process
• Reassignment
• Sick Leave
• Union matters

26
STRESSES THAT MAY BE COVERED

• Emotional reaction to assigned duties if in error
  or abusive
• Emotional reaction to requirements imposed by
  management if in error or abusive
• Performance evaluations
• if stress is due to an error
• if stress is due to abuse
• Erroneous Personnel Actions

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STRESSES THAT ARE QUESTIONABLE

• Harassment and Discrimination
• Must have factual evidence
• No decision on harassment or discrimination is
  made by OWCP
• Mere perception is not compensable
• What are the facts involved

28
LIMITED/ALTERNATE DUTY(for work-related injuries)

• Physical restrictions must be provided by
  attending physician (use Form OWCP 5 or CA-17)
• To be effective in controlling unnecessary costs,
  Agencies MUST provide limited duty, if medically
  feasible
• An employee MUST accept any light duty, offered
  by the Agency, that meets the attending
  physicians statement of physical limitations or
  the employee may loose eligibility for
  compensation benefits.

29
OTHER CONSIDERATIONS
An employee who is separated for misconduct and
whose removal is wholly unconnected to the
work-related injury is not entitled to further
compensation benefits. OWCP Publication
CA-810, Chapter 8, paragraph 8-9
30
OTHER CONSIDERATIONS Possible Disciplinary Action
If the employer has advised an employee in
writing that specific alternative positions exist
within the agency, the employee shall provide the
description and physical requirements of such
alternate positions to the attending physician
and ask whether and when he or she will be able
to perform such duties. 20 CFR
10.515 (c)
31
OTHER CONSIDERATIONS Possible Disciplinary Action
If the employer has advised an employee that it
is willing to accommodate his or her work
limitations, the employee shall so advise the
attending physician and ask him or her to specify
the limitations imposed by the injury. The
employee is responsible for advising the employer
immediately of these limitations. 20 CFR
10.515 (d)
32
MEDICAL EVIDENCE

• Objective medical evidence is REQUIRED to make an
  informed employment decision (which includes
  separation from employment)
• If an employing agency does not have suitable
  medical facilities or access to appropriate
  medical specialists, Agency Medical Exams may be
  contracted with appropriate private sector
  companies, who specialize in providing such
  examinations.

33
Medical Report Requirements(for work-related
conditions)

• In all cases, a medical report from the
  attending physician should include
• (a) Dates of examination and treatment
• (b) History given by the employee
• (c) Physical findings
• (d) Results of diagnostic tests
• (e) Diagnosis
• (f) Course of treatment

34
Medical Report Requirements (Continued)

• (g) A description of any other conditions found
  but not due to the claimed injury
• (h) The treatment given or recommended for the
  claimed injury
• (i) The physician's opinion, with medical
  reasons, as to causal relationship between the
  diagnosed condition(s) and the factors or
  conditions of the employment

35
Medical Report Requirements(Continued)

• (j) The extent of disability affecting the
  employee's ability to work due to the injury
• (k) The prognosis for recovery and
• (l) All other material findings.
• 20 CFR 10.330

36
Agency Medical Exams

• Agency Medical Exams are most useful in acquiring
  objective medical information, upon which an
  employing agency may base informed employment
  decisions involving medical conditions, based
  upon objective medical evidence.
• An Agency Medical Exam is an employing agencys
  qualified right to determine an employees
  physical ability to perform the essential
  functions of their job.

37
Agency Medical Exams(Continued)

• Oftentimes, medical information provided by an
  employee, does not provide sufficient detail with
  which the employer might construct light duty
  offers, alternate duty assignments, or
  modifications to existing positions, that would
  meet the employees physical limitations.

38
Legal Authority To Order Agency Medical Exams

• Agency Medical Exams must be offered or ordered,
  in writing, usually by the Employing Agencys
  Appointing Authority (commonly the Chief of Human
  Resources). Such examinations are governed by 5
  CFR Part 339

39
Legal Authority(Continued)

• Employing agencies may require an employee who
  has applied for, or is receiving, benefits, as a
  result of an on-the-job injury, to undergo a
  medical examination that may affect placement
  decisions. 5 CFR 339.301 (c)

40
Examination Procedures

• The Agency must inform the employee in writing of
  the reason for the exam and consequences of
  failure to cooperate. 5 CFR 339.303 (a)
• The Agency designates the physician, but must
  offer the employee the opportunity to submit
  medical documentation from their own physician.
  5 CFR 339.303 (b)

41
Examination Procedures(continued)

• Agency must review and consider all medical
  documentation submitted by employees physician.
  Notice must give the physicians name, location,
  date and time of examination in order to be
  enforceable. 5 CFR 339.303 (b)
• Agency must pay for exam, ordered or offered. 5
  CFR 339.304

42
Examination Procedures(continued)

• General Medical Exam must precede Psychiatric
  Exam.
• 5 CFR 339.301 (e)
• Agency must report to OWCP the failure of an
  employee to report for an ordered examination.
  5 CFR 339.305 (c)
• Except in cases of claims for work-related
  emotional disorders

43
Examination Procedures(continued)

• The Agency must forward all reports and medical
  documentation, resulting from exams relating to
  on-the-job injury claims, to the Office of
  Workers Compensation Programs. The Agency must
  also report the failure of any workers
  compensation claimant to report for a properly
  ordered examination. 5 CFR 339.305 (c)

44
Examination Procedures(continued)

• Agency Medical Examinations are not sufficient,
  in and of themselves, to cause OWCP to render
  decisions on the level of medical impairment of a
  workers compensation claimant. OWCP must,
  however, consider any other medical reports in
  the file. 20 CFR 10.502

45
Examination Procedures(continued)

• Agency Medical Examinations may provide
  conflicting medical evidence, if it exists, that
  would support OWCPs decision to order a second
  opinion medical examination.
• 20 CFR 10.321 (a)

46
Examination Procedures(continued)

• An employee who refuses to submit to or obstructs
  an examination ordered by OWCP, may have their
  entitlement to compensation suspended for the
  duration of the obstruction. Such obstruction
  also includes an employees representative. 20
  CFR 10.323

47
IMPORTANT CONSIDERATIONS

• A person who claims benefits has the burden of
  establishing the essential elements of his claim,
  including the fact that he sustained an injury
  while in the performance of duty, and that he had
  disability as a result. As part of this burden
  the employee must present rationalized medical
  opinion evidence, based on a complete factual and
  medical background, showing a causal relationship
  between the injury and the disability.
  Daniel R. Hickman, 34 ECAB 1220 (1983)

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IMPORTANT CONSIDERATIONS(continued)

• The fact that a disabling condition exists does
  not establish a right to compensation benefits,
  nor does it raise an inference of causal
  relationship between such condition and an
  employment injury. Dolph G.
  Stuart, 13 ECAB 480 (1969)

49
IMPORTANT CONSIDERATIONS(continued)

• The employee's belief that the condition was
  caused by or aggravated by employment conditions
  is insufficient to establish causal relationship.
  
  Alberta S. Williamson, 47 ECAB 569 (1996)

50
IMPORTANT CONSIDERATIONS(continued)

• Where a person has a pre-existing condition which
  is not disabling, but which becomes disabling
  because of aggravation causally related to the
  employment, then regardless of the degree of such
  aggravation, the resulting disability is
  compensable. If the medical evidence reveals that
  an employment factor contributes in any way to
  the employee's condition, the condition is
  considered to be employment related.
  Arnold Gustafson, 41
  ECAB 131 (1989)

51
REASONABLE ACCOMMODATION
Kevin Clark v. USPS Merit Systems Protection
Board NY-0752-95-0155-I-1 Example of
consequences of failing to follow regulations
pertaining to Reasonable Accommodation issues.
52
Kevin Clark v. USPS
In cases involving direct evidence, the burden
of proof remains with the appellant until he or
she proves that the suggested accommodation would
enable the appellant to perform the essential
functions of the job at that time the burden
then shifts to the agency to demonstrate, through
some objective evidence, that the accommodation
would cause an undue hardship on the agency.
53
Kevin Clark v. USPS
In this case, the Board found that the appellant
met his burden of making a prima facie case of
disability discrimination. The medical evidence
supported a substantial limitation in the major
life activities of lifting, sitting, standing and
bending and the record is clear that the removal
action was based on the medical condition.
Further, the Board noted the numerous suggestions
for accommodation which the appellant brought
forward prior to and after receiving his proposed
notice.
54
Kevin Clark v. USPS
With the burden of proof shifted back to the
agency, the Board found that the agencys
analysis of the suggested accommodations was weak
and the agency was unable to demonstrate that it
had investigated thoroughly any of the
suggestions prior to removing the employee.
55
Reasonable Accommodation(for non work-related
injuries)

• To be useful, physical restrictions MUST be
  provided obtained based upon objective medical
  evidence
• The employing Agency MUST identify and document
  essential functions of the position in question
• The employing Agency MUST comply with EEOC
  regulations 29 CFR 1614.203 with regard to
  reasonable accommodation 5
  CFR 339.103

56
EEO DECISIONS

• A claimant may not use the EEO process to launch
  a collateral attack on the workers compensation
  process.
• Story v USPS, EEOC 05960314 (10/18/96)
• The Commission has recognized that an agency has
  the right to represent its position and interest
  in the OWCP Forum, and will not review decisions,
  which would require it to judge the merits of a
  workers compensation claim. Hogan EEOC 05940407

57
EEOC DECISIONS

• The Commission stated it is well established
  that an Agency has an obligation to controvert an
  employees workers compensation claim where there
  is a dispute as to the employees entitlement.
• Andel v. USPS EEOC 01975337

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CONTACT INFORMATION
David L. Hull, MBA U. S. Department of Veterans
Affairs Workers Compensation Program
Manager MidSouth Healthcare Network (VISN 9)
1540 Spring Valley Drive Huntington, West
Virginia 24704 Phone [phone] x 2334 Fax
[phone] E-mail David.Hull_at_med.va.gov