# Presentation: 003663

## Federal Workers’ Compensation 

**Basic Training Course - Breakout 8**

**4****th**** Annual Federal Workers’ **
**Compensation Conference**
**Dallas, Texas**

**David L. Hull****, ****MBA**
**Workers’ Compensation Program Manager**
**Mid South Healthcare Network (VISN 9)**

## Major Topics

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

## 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**

## 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.**

## 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**
** **

## Traumatic Injury (Examples)

**On August 23, 2001 at 11:00 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**

## 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. **

## 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.**** **** **

## 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**
**Supervisor’s statement**
**Any other relevant information**
**All evidence must go to OWCP with the claim.**

## 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**

## EMPLOYEE’S 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**

## STATEMENTS FROM WITNESSES

**  ****Description of employee’s activities preceding the injury**
**Conduct and outward symptoms**
**Belief whether the injury was caused by the employee’s intoxication**
**Explanation for this belief**

## INTOXICATION

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

## EVIDENCE OF INTOXICATION

**Description of employee’s activities preceding the injury**
**conduct and outward symptoms**
**Belief that injury was caused by employee’s intoxication**
**Detailed explanation for this belief**

## 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?**

## 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**

## WILLFUL MISCONDUCT

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

## 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?**

## 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**

## INTENT TO HARM

**One’s 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.**

## 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**

## 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?)**

## 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.**

## 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**

## STRESSES NOT COVERED (continued)

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

## 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**

## 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**

## 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 physician’s statement of physical limitations or the employee may loose eligibility for compensation benefits.**

## 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**

## 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)**

## 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)**

## 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.**

##  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;**

##  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;***

##  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**

## 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 agency’s **_**qualified**_** right to determine an employee’s physical ability to perform the essential functions of their job.**

## 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 employee’s physical limitations.**

## Legal Authority To Order Agency Medical Exams

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

## 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)**

## 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)**

## Examination Procedures(continued)

**Agency must review and consider all medical documentation submitted by employee’s physician. [Notice must give the physician’s 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**

## 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**

## 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)**

## 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**

## Examination Procedures(continued)

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

## 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 employee’s representative.****   ****20 CFR 10.323**

## 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)**

## 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)**

## 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)**

## 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)**

## 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.**

## 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.”**

## 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.”**

## Kevin Clark v. USPS

**“****With the burden of proof shifted back to the agency, the Board found that the agency’s 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.”**

## 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**

## 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**** **

## EEOC DECISIONS

**The Commission stated: “...it is well established that an Agency has an obligation to controvert an employee’s workers compensation claim where there is a dispute as to the employee’s entitlement.”****	**
**    ****Andel v. USPS EEOC 01975337**

## 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: (304) 429-6755 x 2334**
**Fax: (304) 429-0371**
**E-mail: David.Hull@med.va.gov**