1999 FECA Circulars which have previously been issued by the DFEC but have since been superseded by another Circular or inclusion in the FECA Procedure Manual.
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Circular |
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Reconsiderations - Correct Appeal Rights (10/98B) |
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Dual Benefits - FERS COLA (11/98B) |
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New Regulations Governing Claims under the FECA (01/99A) |
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Selected ECAB Decisions for April - June, 1997 (01/99B) |
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Selected ECAB Decisions for July - September, 1997 (01/99B) |
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Code changes for the Departments of the Air Force, Army, Defense, Transportation, Treasury, and Veterans Affairs, and the U.S. Postal Service and the Federal Judiciary, Case Management Users' Manual, Appendix 4-7 (01/99A) |
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Current Interest Rates for Prompt Payment Bills and Debt Collection (02/99A) |
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Selected ECAB Decisions for January-March, 1998 (04/99A) |
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Seclected ECAB Decisions for April-June, 1998 (04/99A) |
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Selected ECAB Decisions for July-September, 1998 (04/99B) |
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Revised CA-7 (04/99B) |
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Current Interest Rates for Prompt Payment Bills and Debt Collection (08/99A) |
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Loss of Wage Earning Capacity--Actual Earnings from Temporary Positions (08/99B) |
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Selected ECAB Decisions for October - December 1998 (09/99A) |
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Revised Form CA-1 (09/99A) |
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Selected ECAB Decisions for January - March, 1999 (09/99A) |
Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-01 |
October 12, 1998 |
SUBJECT: Reconsiderations - Correct Appeal Rights
It has come to our attention that full appeal rights are being issued with a certain number of merit reconsideration decisions.
As stated in FECA Procedure Manual Chapter 2-1602.8c, a claimant who receives a merit decision on reconsideration is entitled to review by the Employees' Compensation Appeals Board or to another reconsideration, but not to a hearing. When the right to a hearing is included in the description of appeal rights, and the claimant requests a hearing, the Branch of Hearings and Review must honor the request even if the "right" was included in error. This results in an additional and unwarranted workload for the Branch of Hearings and Review.
Senior Claims Examiners are reminded to ensure that proper appeal rights are appended to reconsideration decisions.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No. 1, Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
Back to Top of FECA Circular No. 99-01
Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-02 |
November 18, 1998 |
SUBJECT: DUAL BENEFITS – FERS COLA
Effective December 1, 1998, Social Security Benefits will increase by 1.3%. That requires the amount of the FERS Dual Benefits Deduction to be increased by the same amount.
This adjustment will be made from the National Office and will affect all cases that are correctly entered into the revised ACPS Program. The adjustment will be made effective with the periodic roll cycle beginning December 6, 1998. No adjustment will be made for the period December 1, 1998 through December 5, 1998.
If there are any cases currently being adjusted for FERS Dual Benefits that have not been entered correctly, please ensure that the correction is made by December 1, 1998.
The National Office will provide a notice to each beneficiary affected. A copy will be provided for each case file.
SSA COLA's are as follows:
| Dates | Rates |
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Effective December 1, 1998 |
1.3% |
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Effective December 1, 1997 |
2.1% |
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Effective December 1, 1996 |
2.9% |
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Effective December 1, 1995 |
2.6% |
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Effective December 1, 1994 |
2.8% |
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No. 1, Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
Back to Top of FECA Circular No. 99-02
Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-04 |
December 24, 1998 |
SUBJECT: New Regulations Governing Claims under the FECA
On November 25, new regulations for claims under the FECA were published in the Federal Register. They take effect on January 4, 1999. Copies have been shipped to each district office. They will also be available in FolioVIEWS on January 4, and from the program's home page very soon thereafter.
The regulations have been completely rewritten, so all claims staff should familiarize themselves with the new organization and contents. The reasons for the substantive changes are addressed in the Preamble to the regulations themselves. A series of FECA bulletins addressing the various changes will be issued shortly.
Citations to the regulations in letters in the Forms Correspondence and Letter Generator systems are being updated to reflect the new regulations, and these changes should also be in place by January 4. While the printed version of Form CA-1032 is being revised, copies will not be available until after January 4. Copies of Form CA-1032 citing § 10.125 will be legally unenforceable after that date, and they should be discarded.
Publications CA-810, "Injury Compensation for Federal Employees," and CA-550, "Federal Injury Compensation", are also being revised.
A brief description of the major changes is as follows:
Subpart A--General Provisions
1. A description of "recurrence of medical condition" now appears (§ 10.5).
2. A new provision requires employing agencies to treat records collected in claims under the FECA, including copies of records maintained by the employing agency, as official records of OWCP (§ 10.10, § 10.11, § 10.12).
3. Provisions addressing suspension of benefits during incarceration and termination of benefits for conviction of fraud against the program now appear(§ 10.17, § 10.18).
Subpart B--Filing Notices and Claims; Submitting Evidence
1. The employer may file a notice of injury, occupational disease, or death if the employee or survivor cannot do so (§ 10.100, § 10.101, § 10.105).
2. A claim may be withdrawn before adjudication (§ 10.100, § 10.101, § 10.105).
Subpart C--Continuation of Pay
1. Use of COP must begin within 45 days after the injury. For a recurrence, use of any remaining days must begin within 45 days of the time when the employee first returned to work after the initial period of disability (§ 10.205, § 10.207).
2. The employer may terminate COP when a preliminary notice of a disciplinary action has been issued (§ 10.222).
3. The employer may obtain medical evidence only in writing, not by telephone, during the COP period (and afterward as well) § 10.506).
4. On account of separate legislation, Sunday premium pay for time not actually worked may no longer be included in COP.
Subpart D--Medical and Related Benefits
1. The employer need not issue a Form CA-16 more than one week after injury has occurred (§ 10.300). This statement has appeared in Publication CA-810, but it has not been part of the regulations previously.
2. New guidance is provided concerning medical testing for exposures to workplace hazards (§ 10.303).
3. Attendants' allowances will now be paid as medical expenses, up to $1500 per month. This method of payment will allow for better monitoring of services and accounting of costs (§ 10.314).
4. Misbehavior of a representative is considered misbehavior of a claimant, for purposes of determining whether a medical examination has been obstructed (§ 10.323).
5. OWCP may (but will not always) require an original signature on a medical report (§ 10.330).
6. Form CA-17 is to be used only for traumatic injuries, since the form is not designed for use with occupational disease cases (§ 10.331).
7. OWCP will not always require submittal of an x-ray or the report of x-ray to support a claim for subluxation of the spine (§ 10.331).
8. OWCP uses the AMA Guides for determining schedule awards; the kinds of measurements usually used to make such determinations are described (§ 10.333).
9. The claimant may be reimbursed if a provider does not refund the balance of a partially paid bill to the claimant (§ 10.337).
Subpart E--Compensation and Related Benefits
1. Maximum and minimum compensation rates do not include locality pay (§ 10.406).
2. A new section addresses concurrent receipt of compensation and separation or severance pay (§ 10.421).
3. A new section addresses elections between FECA and FERS (reduction of FECA benefits to reflect SSA entitlement due to federal service) (§ 10.421).
4. The detailed material concerning representative payees has been condensed to one paragraph. Specific procedures will be added to the Procedure Manual.
5. Although the proposed regulations excluded any mention of leave buy-back, a brief paragraph which recognizes this kind of transaction has been added to the final rule (§ 10.425).
6. Language addressing how claimants are put on notice of an overpayment has been made more specific. The existence of EFT payments is also recognized (§ 10.430).
7. The manner in which OWCP applies the "against equity and good conscience" test for waiver of an overpayment is revised to correct an inadvertent error in the 1987 regulations (§ 10.437).
Subpart F--Continuing Benefits
1. A new section addresses how OWCP evaluates medical evidence (§ 10.502).
2. The new rule recognizes that the Office of Personnel Management, not OWCP, administers 5 U.S.C. 8151 (§ 10.505).
3. A new provision allows employers to contact employees at reasonable intervals to request medical reports addressing return to work (§ 10.506).
4. A new provision addresses reductions-in-force (RIFs) of employees performing light-duty work. Loss of a job in this way is not considered a recurrence of disability (§ 10.509).
5. A job must be classified for a formal rating to be done (§ 10.509).
6. OWCP nurse services are now included in the definition of vocational rehabilitation services, and sanctions may be applied for refusal to cooperate (§ 10.518).
8. A new section addresses volunteer activities (§ 10.526).
9. Computer matching may be used to verify reports of earnings (§ 10.527).
Subpart G--Appeals Process
1. The claimant cannot request review on the Director's own motion (§ 10.610).
2. Subpoenas are only to be issued in connection with a hearing, and only as a last resort (§ 10.619).
3. A Hearing Representative may deny a claimant's request that an employing agency representative testify, if the testimony would not be relevant or the employing agency representative does not have the information in question (§ 10.621).
4. Postponement of an oral hearing must be requested before the hearing is scheduled; otherwise, it may be requested only for non-elective hospitalization or death of immediate family member (§ 10.622).
Subpart H--Special Provisions
1. Federal employees may serve as representatives only under certain limited circumstances (§ 10.701).
2. The standards for review of representatives' fees have been streamlined. Where a claimant does not dispute the amount of the fee, OWCP will deem it approved (§ 10.703).
3. The rules for third-party claims more fully interpret and clarify the duties of FECA claimants and their counsel pursuant to sections 8131 and 8132 of the FECA (§ 10.704 to § 10.719).
Subpart I--Information for Medical Providers
1. OWCP's medical fee schedule has been expanded to include pharmacy and inpatient hospital bills (§ 10.809, § 10.810).
After you have received and studied the various bulletins addressing these changes in more detail, you may have further questions. They should be referred to the National Office through a manager or supervisor in your office.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
Back to Top of FECA Circular No. 99-04
Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-05 |
January 6, 1999 |
SUBJECT: SELECTED ECAB DECISIONS FOR APRIL - JUNE, 1997
The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.
Several decisions which deal with performance of duty/compensable employment factors are included. Four decisions which address refusal/abandonment of suitable employment are also summarized. Additional topics included in the summaries are schedule awards and impartial examiners.
Two decisions are included in their entirety. The first, Kenneth H. Wiggins, Docket No. 95-1581, issued June 5, 1997, deals with recurrence of disability claimed after a loss of wage-earning capacity determination had been made. The second, Amit Mashall, Docket No. 95-1224, issued April 28, 1997, addresses termination of compensation on the basis of "prophylactic restrictions."
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
IMPARTIAL EXAMINATIONS - BOARD CERTIFICATION
Charles M. David, Docket No. 95-1239, Issued June 12, 1997
In this claim, a conflict of opinion was found to exist between the claimant's treating physician, a Board-certified internist, and a second opinion physician, a Board-certified orthopedic surgeon, concerning whether the claimant continued to suffer from a disabling knee condition. To resolve the conflict, the claimant was referred to a physician who was not Board-certified for an impartial examination. The Office found that this impartial physician's report constituted the weight of the medical evidence and terminated compensation. The Office's decision was affirmed by a hearing representative, who also found that the impartial examiner's opinion was entitled to special weight.
The Board found that the office had not met its burden of proof to terminate benefits. They quoted Chapter 3.500.4(b) of the Federal (FECA) Procedure Manual, wherein it is stated, "The services of all available and qualified Board-certified specialists will be used as far as possible to eliminate any inference of bias or partiality." Because the selected impartial physician was not Board-certified, the Board found that he could not be considered as an impartial specialist whose report was entitled to special weight, and the Office's decisions dated October 19, 1993 and September 20, 1994 were reversed.
Back to Top of FECA Circular No. 99-05
PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT
Joseph F. Coyle, Docket No. 95-1465, Issued April 18, 1997
Ellis Jones, Jr., Docket No. 95-1810, Issued June 13, 1997
Ronald B. Sheckler, Docket No. 95-1144, Issued June 25, 1997
Ruby B. Kendall, Docket No. 95-1991, Issued June 2, 1997
Diane Smith, Docket No, 95-2039, Issued May 23, 1997
Rosemary M. Wasem, Docket No. 95-1420, Issued May 21, 1997
Gregory S. Lammers, Docket No. 95-1482, Issued June 3, 1997
Gareth D. Allen, Docket No. 95-1184, Issued April 15, 1997
A number of interesting decisions were issued by the Board during this quarter which concerned emotional conditions allegedly due to various compensable and non-compensable factors of employment.
In Coyle, the claimant, a letter-sorting machine clerk, attributed his "nervousness, muscle spasms, tension headaches, nausea, diarrhea, confusion, disorientation, sleeplessness and depression" to the high noise levels he encountered while working. He stated that the music played on the public address system was loud, that individual workers also played their personal radios loudly at times, and that they also engaged in loud yelling, singing, and noise making. He complained about the noise to managers on several occasions. Sometimes corrective actions were taken, and other times they were not. The Office denied the claim after requesting additional medical and factual information, on the basis that the claimant did not establish that he had sustained an injury as alleged. The claimant subsequently requested reconsideration and submitted a more detailed statement of the employment factors which he believed caused his condition. Modification of the prior decision was denied. The claimant again requested reconsideration and submitted a medical report from a psychologist, which supported the claim with some rationale. Modification of the prior decisions was again denied. The accompanying memorandum stated that the Office accepted as factual that the claimant's supervisor took appropriate steps to control the noise from the radio and coworkers, and that the incidents therefore did not occur in the performance of duty.
The Board found that the case was not in posture for decision. They stated that everyday noise encountered as part of a claimant's regular and assigned duties would constitute a compensable employment factor. The claimant submitted evidence to support that he was exposed to noise during his employment, which was supported by a medical officer having offered him noise-reduction devices, and by his supervisor having agreed that noise in the workplace was a problem. The case was remanded to the district office for preparation of a statement of accepted facts and referral to an appropriate medical specialist.
In Jones, the claimant alleged that he developed stress when he was transferred from his job as a safety specialist to a new job as a mail processing supervisor. He stated that his working hours changed, he did not know how to adjust to his new life, he was being forced to retire, he lacked the experience to perform the duties of the new job, and he received inadequate training for the new job. He submitted medical evidence from a Board-certified specialist that detailed the recent job transfers, and stated that without sufficient notice, he had been put in a job he could not perform adequately, which had led to diminished confidence, fear, insecurity, suspicion, and paranoia. The Office denied the claim on the basis that the evidence failed to establish that an injury was sustained. They found that some [compensable] employment factors occurred, without specifying those employment factors, but that a medical condition resulting from those factors was not demonstrated by the evidence of record.
The Board remanded the case for creation of a statement of accepted facts to include delineation of compensable and non-compensable employment factors. The attending physician was to be provided with the SOAF and asked to provide an opinion on causal relationship, after which further necessary development was to take place. The Board noted that stress attributed to the change in his work schedule and his inability to perform the new job would be compensable, while stress due to perceived fear of losing his job or being forced into retirement, or from the transfer itself (absent any evidence of error or abuse on the agency's part in making the transfer) would not be compensable. The Office is responsible for making a findings of fact concerning compensable and non-compensable employment factors.
The claimant in Sheckler was an industrial engineer who claimed that his depression was due to ongoing investigations by the CIA and the FBI, as well as other work factors. The Office denied the claim on the basis that he did not establish that he sustained an emotional condition in the performance of duty. A hearing representative affirmed the Office's decision, finding that the claimant failed to establish any compensable factors of employment. The Board remanded the case for the Office to make a findings of fact on all of the alleged factors, write a SOAF, and refer the claimant for examination by an appropriate medical specialist. In evaluating factors of employment, the Board found that the following events were not compensable employment factors: alleged employer harassment due to arrangements having been made for him to meet the man who had previously investigated him (for time and attendance violations) on his first day at a new job (the employer stated the meeting was purely coincidental); alleged employer harassment due to a "spy" having been sent to overhear a private telephone conversation (the employer denied this allegation); poor management at the employing establishment and the claimant's overqualification for his position (these relate to the claimant's frustration at not being permitted to work in a particular environment); a letter of reprimand for putting up union signs and a suspension for statements he made regarding a superior (these involve the administration of personnel matters, and there was no evidence of employer error or abuse); and investigation for time and attendance matters (no evidence of employer error or abuse). They found that investigation of the claimant for alleged computer theft did constitute a compensable factor of employment, because the claimant's position required him to transport computer hardware and software, and in performing these duties he had twice been stopped by security and had his car searched. The Board also directed the Office to make findings regarding the allegations that the employer did not provide the claimant with the proper licensing for his computer software, adequate software to perform his work, or appropriate manuals for the software, where the evidence of record was contradictory.
In Kendall, the claimant attributed her illness to a coworker's having spread a rumor that she was suffering from a serious medical condition. She overheard this coworker and another coworker talking about her condition on the workroom floor. The Office denied the case, finding that the subject of the alleged harassment was not a result of the day-to-day work activities, a special assignment, or a requirement imposed by the employment, or by the nature of the claimant's work, but rather, was personal in nature, and therefore did not arise in and out of the course of employment. The Board remanded the case for further factual development, stating:
To the extent that disputes and incidents alleged as constituting harassment by coworkers are established as occurring and arising from appellant's performance of his regular duties, these could constitute employment factors. Even if the subject of the alleged harassment is personal in nature rather than work related, this is not dispositive of its connection to work. Even if the alleged harassment arose from a nonwork topic, the Board has held that such matters may be compensable if the employment brought appellant and the coworker together and created the conditions which resulted in the harassment. There is no evidence that appellant and her coworker had any relationship outside of the one at work. Their work brought them together and created the conditions that resulted in the alleged harassment.
In Smith, the claimant alleged stress caused by an incident with a coworker. While she was on break, the coworker who relieved her received a telephone call from her husband, but did not have her paged. When she returned from her break and found out what had happened, she said that in the future, she should be paged when she received a telephone call. The coworker then began to speak loudly and abusively toward her. The Office denied the claim on the basis that the incident did not arise in the performance of duty. The Board remanded the case for creation of a SOAF and development of the medical evidence. They stated that the claimant's description of the incident was supported by statements from two supervisors, and that given the nature of the verbal altercation, the claimant's perception could not be considered self-generated. Although the incident did not bear directly upon the claimant's regular assigned duties, it was not imported into the work due to a relationship outside the workplace, and bore sufficient relationship to the employment to afford coverage.
In contrast to Smith, in Wasem, the claimant also alleged stress due to incidents with coworkers, but with a different outcome. While having a conversation with a coworker, another coworker asked whether it was the first coworker's wife's "time of the month." The claimant asked the second coworker what he meant by the remark, to which he responded, "don't worry about it, you know what I mean, unless it's your time of the month." The claimant stated that she was humiliated by this remark. Later that day she overheard another coworker arguing with her supervisor and a union steward about whether she should be sent out on the street, and her light duty status. She told her supervisor that she was upset over the comments she had overheard, and both he and the union steward attempted to calm her down. She left work shortly thereafter. The Office denied the claim, finding that with respect to the first incident, the comments directed to her were not made as a threat, as harassment, or in a sexually abusive manner, and that with respect to the second incident, the supervisor took immediate action to control the coworker's profanity and tone of voice, and therefore there were no compensable factors of employment. Modification was denied in a subsequent reconsideration, on the basis that there was no evidence to support the allegation of harassment. The Board affirmed the Office's decisions, finding that neither incident constituted harassment.
In Lammers, the claimant alleged psychological stress due to the employer's requirement that he wear a uniform made of synthetic fibers, which was against his personal health and safety standards. The Office denied the claim on the grounds that the claimant failed to establish an emotional condition in the performance of duty. The Board affirmed the decision. They found that the employer's requirement that he wear a certain uniform did not relate to the duties the claimant was hired to perform, but rather was an administrative or personnel matter, and non-compensable. The claimant did not establish error or abuse on the part of the employer in administering this requirement.
The Allen decision involved rescinding a previous acceptance, based upon new legal argument. The claim was accepted for an adjustment disorder due to the claimant having worked in remote areas as far as 1000 miles from family and friends. A hearing representative rescinded the acceptance, stating that the location of the work, not the work itself caused the disability, and that this represented a desire to work in a particular environment, which is not compensable. The Board found that the Office had not met its burden of proof to rescind the acceptance, and reversed the decision. They agreed that an emotional reaction resulting from a desire to work in a different environment or at a different job does not constitute a personal injury in the performance of duty, and that an emotional reaction due to separation from one's family and friends does not arise in the performance of duty. In this case, however, the claimant also implicated the dormitory situations and the surrounding environment of the remote assignments, which reminded him of his past imprisonment. Assignment to the remote areas itself is not a compensable work factor, but the working conditions of the assignment can be compensable.
Back to Top of FECA Circular No. 99-05
REFUSAL/ABANDONMENT OF SUITABLE EMPLOYMENT
Gail Barrick, Docket No. 95-1183, Issued April 18, 1997
Robert W. Velon, Docket No. 95-864, Issued May 16, 1997
Leonard W. Larson, Docket No. 95-1102, Issued May 12,1997
Robert M. O'Donnell, Docket No. 95-795, Issued June 20, 1997
Several decisions by the Board this quarter involved cases in which the Office invoked the provisions of section 8106[c](2) of the FECA, whereby: "A partially disabled employee who€ (2) refuses or neglects to work after suitable work is offered€ is not entitled to compensation."
In Barrick, the claim was accepted for bilateral carpal tunnel syndrome. Her physician, a Board-certified orthopedic surgeon, released her for light work following surgery, and approved a light duty position offered by her employer, but said that it would be in the claimant's best interest to work from 6:30 am to 3:00 pm so that she could be driven to work, since she was no longer able to drive herself to work. The employer stated that the job was not available during hours specified by the attending physician. The claimant was notified that the job was found to be suitable, and that she would be reimbursed for round-trip transportation to the job, by either taxi or public transportation. The claimant requested a hearing, and forwarded a medical report from another physician, a Board-certified family practitioner, which stated that the claimant could not tolerate the night shift because it caused a lack of sleep which exacerbated her medical condition. The claimant accepted the job offer on the condition that she could work the day shift. She requested in writing that she be placed in a clerk position which she had formerly held. The request for hearing was denied, as no final decision had been issued. The employer advised the office that the clerk position did not exist for the claimant, and that even if it did, it would involve extensive use of both hands, which was prohibited by her physicians. The claimant was informed that the second physician's note was not sufficient to support that she was unable to perform the offered job. The Office reiterated that the job was suitable, and that reimbursement for transportation would be provided, and was given 15 days to respond to the offer or benefits would be terminated. The claimant responded that her physicians recommended the day shift. The Office terminated benefits, finding that the claimant had refused suitable work. The claimant returned to work for a few days, then filed a new claim for occupational disease and stopped working. The office stated that the new claim would be treated as a recurrence of the old claim. A hearing was requested, and Office's decision was affirmed. The Board also affirmed the office's termination of benefits, finding that the evidence supported the suitability of the job, and that the family physician's opinion that working at night would aggravate the claimant's condition was not sufficiently rationalized. The Board also noted that the new claim had not been adjudicated, and that the Office should undertake development of that claim.
In both Velon and Larson, the Office's termination of benefits for refusing suitable employment was deemed improper by the Board because the offered positions were temporary. In Velon, the claimant was offered an office clerk position that was being made available through temporary Pipeline funding for a period of one year to eighteen months. The employer stated that their goal would be to place the employee in a permanent position as one became available. The claimant refused the job on the basis that it was temporary, and because he wished to continue vocational rehabilitation. The Office terminated benefits because he refused an offer of suitable work. The Board reversed the decision, finding that the job was unsuitable because it was temporary, and the claimant was a permanent employee at the time of injury. In Larson, the claimant was a respiratory therapist who was offered a temporary position as a medical service administrative support person. The claimant objected to offered job for several reasons, including the fact that it was temporary or unfunded. The agency stated that they would look for a permanent position. The Office found the job suitable, and terminated benefits. The Board found that the job offered was not suitable because it was temporary, and the claimant was a permanent employee.
The situation in O'Donnell is somewhat different, in that it involves termination of benefits for abandonment of suitable work, rather than refusal of suitable employment. The claimant had returned to light-duty work as a clerk on March 2, 1993. The Office determined his loss of wage-earning capacity based upon his earnings as a clerk on May 11, 1993. After that, the claimant filed claims for recurrences of disability for the periods March 21 through April 6, 1993, and May 14, 1993 and continuing. These recurrence claims were denied. In the meanwhile, the claimant was discharged from his employment on September 3, 1993, based upon his absence from work. By decision dated January 11, 1994, the Office terminated his compensation for loss of wage-earning capacity on the basis that he was terminated from his employment for cause, and thus has abandoned suitable work under 5 U.S.C. 8106. The Board found that the Office had properly terminated compensation for wage loss, because the medical evidence did not support that he was unable to perform his light-duty work.
Back to Top of FECA Circular No. 99-05
SCHEDULE AWARD - FECA BULLETIN 95-17
Marguerita B. Younger, Docket No. 95-1892, Issued June 10, 1997
In this case, a claim was made for a schedule award due to impairment of the right lower extremity due to a knee condition. The claimant's treating physician stated that the claimant had 40 percent impairment of the knee, based upon the 4th edition of the AMA Guides. An office medical adviser found on March 4, 1995 that the claimant had 12 percent impairment of the knee. He based this figure on AMA Guides, page 78, Table 41, and page 85, Table 64. The Office made an award for 12 percent impairment of the right lower extremity, based upon the office medical adviser's opinion.
The Board remanded the case for further clarification by the office medical adviser. In doing so, they noted that FECA Bulletin 95-17, issued March 23, 1995, stated that certain tables in Chapter 3 of the AMA Guides could not be used together because such usage would lead to "overlapping applications, leading to percentages which greatly overstated the impairment." Tables 41 and 64 were specifically noted as examples of tables that should not be used together. The office medical adviser used those tables in arriving at the 12 percent impairment, and so the Board remanded the case for the office medical adviser to clarify his or her opinion, using the appropriate tables from the Guides.
This decision by the Board is another example of the extreme care that must be taken when assessing the degree of permanent impairment for schedule award purposes. It is noted that in this instance, the office medical adviser's opinion predated the issuance of the relevant FECA Bulletin. However, in any case where the treating physician's percentage of impairment is higher than that of an office reviewer's, an award based upon the lower percentage must be well-supported, inasmuch as there is a high likelihood of an appeal.
Back to Top of FECA Circular No. 99-05
SCHEDULE AWARD - PAY RATE WHEN EXPOSURE CONTINUES
Barbara A. Dunnavant, Docket No. 97-58, Issued May 14, 1997
The accepted conditions in this case were aggravation of right and left carpal tunnel syndrome, due to occupational disease. The claimant was disabled for work November 9-24, 1993, when she was off work for a surgical right carpal tunnel release. She used leave for the time she was off from work, but did not claim a leave buy-back.
On June 28, 1994, the claimant's treating physician reported that she had reached maximum medical improvement, and that she had a 20 percent impairment of the right upper extremity. On March 10, 1995, the physician indicated that she had a 15 percent impairment of the left upper extremity. On May 31, 1995, the Office awarded the claimant 20 percent impairment of the right upper extemity and 15 percent impairment of the left upper extremity, and used the claimant's rate of pay as of the date disability began, November 9, 1993, to compute the award. A later Hearings and Review decision increased the award for the left upper extremity to 21 percent, and affirmed the rate of pay used for the calculation of the award.
On appeal, the claimant did not contest the degree of disability awarded, but contended that since she was exposed to work factors until the award was issued, her award should be paid based upon the rate of pay in effect when the award was issued, which would be the "date of injury." The Office maintained that if there is no disability, the pay rate should be calculated using the date of injury, and that if there is a period of disability, the pay rate should be calculated using the rate in effect when disability began, without further consideration of the date of injury rate of pay.
The Board cited Section 8101(4) of the Act, which defines "monthly pay" as:
The monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than six months after the injured employee resumes regular full-time employment with the United States, whichever is greater€
In schedule award claims for injuries that occur over a period of time, the Office must determine the date of last exposure to injurious work factors, as well as the date of the medical evaluation which is used to document the degree of permanent impairment. In this case, the claimant continued to be exposed to injurious work factors well after her brief period of disability, as well as up to and after the date when she was examined for schedule award purposes. The Board found that the office erred in using the pay rate in effect when disability began, without considering her additional exposure to injurious work factors after that date. The additional exposure is considered to be part of the injury, and so the "date of injury", for purposes of determining pay rate, is after the date of disability. The Office did not consider whether the "date of injury" rate of pay was greater than the "date of disability" rate of pay.
With respect to the claimant's position that the rate of pay in effect as of the date the schedule award was issued should be used, the Board found that the "date of injury" would be the date of last exposure prior to the medical evaluation upon which the award was based. If the claimant claims further impairment due to additional exposure after the medical evaluation, a claim for an increased award should be filed.
Back to Top of FECA Circular No. 99-05
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-06 |
January 6, 1999 |
SUBJECT: SELECTED ECAB DECISIONS FOR JULY - SEPTEMBER, 1997
The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.
The subjects addressed include: case doubling, forfeiture of compensation due to failure to report earnings, performance of duty (factors of employment and premises issues), timeliness of reconsideration requests (one in which application of the mailbox rule to the claimant was considered), changes in shift causing recurrence, refusal/abandonment of suitable employment, and timeliness in occupational disease claims.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No. 1--Folioviews Groups A and D (Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
CASE DOUBLING
James C. Small, Docket No. 95-2716, Issued September 24, 1997
In this case, the claimant alleged that weakness in his legs caused his left knee to buckle. No medical evidence was submitted, and the claim was denied. An oral hearing was conducted, during which the claimant testified that he had a prior injury which was accepted by the office, and for which he received schedule awards for both legs. Medical evidence was also submitted which was supportive of the claim, but not sufficient to meet the claimant's burden of proof. The hearing representative affirmed the Office's denial.
The Board found that given the absence of opposing medical evidence, further development of the record was needed. They remanded the case for doubling with the prior injury case, in accordance with FECA Bulletin No. 97-10, preparation of a statement of accepted facts, and referral to an appropriate Board-certified medical specialist for evaluation.
Back to Top of FECA Circular No. 99-06
FORFEITURE OF COMPENSATION - FAILURE TO REPORT EARNINGS
Ruth Moreno Rios, Docket No. 94-1977, Issued July 14, 1997
This case is interesting because of the unusual circumstances involved. Forfeiture of compensation was declared for the period July 7, 1987 through February 1991 due to failure to report earnings. The claimant was found to be at fault in the creation of the resulting overpayment, on the basis that she had knowingly failed to report earnings on forms CA-1032 covering the period of time.
The claimant had worked using two different names and social security numbers. Medical evidence dated July 24, 1990 from her attending Board-certified psychiatrist indicated that the claimant suffered from a form of mental illness in which two personalities were present, each using a different name. The claimant was totally divorced from one personality when she was in the other, and could not remember anything about the other personality.
The Board found that the Office did not establish that the claimant knowingly omitted earnings for a portion of the period that was declared subject to forfeiture. During one of the reporting periods covered by the CA-1032 forms, the claimant was suffering from two personalities, and therefore, a finding that she had "knowingly" omitted earnings could not be made for that period of time. The Board did affirm that periods of time covered by CA-1032 forms signed prior to the July 24, 1990 medical report were subject to forfeiture, since the medical evidence did not specify when the two separate personalities began to manifest themselves.
Back to Top of FECA Circular No. 99-06
PERFORMANCE OF DUTY - FACTORS OF EMPLOYMENT
Ana L. Leishman, Docket No. 95-2007, Issued July 3, 1997
Earl D. Smith, Docket No. 95-2749, Issued August 13, 1997
Both of these decisions contain some interesting distinctions between compensable and non-compensable work factors in claims for emotional conditions.
In Leishman, the claimant described several incidents which she claimed caused stress on her job. The district office denied the claim on the basis of failure to establish an injury in the performance of duty. In a subsequent hearing decision, the district office decision was affirmed. The Board, however, reversed the decisions. The work factors cited included the following:
The claimant stated that her supervisor and general supervisor continuously stood close to, observed, and harassed her on a specific date, which led to a verbal altercation with her general supervisor. The supervisor responded that he watched employees at random, and if they were not working, he approached and asked why they were not working. He stated that this had happened with the claimant, and that she argued with him in a loud voice. Several witness statements were submitted which supported the claimant's position that she was unfairly watched and badgered in a hostile manner while attempting to perform her job duties. The Board found that the incident was related to factors of employment.
The claimant posted a newspaper article related to postal killings on the bulletin board, on which some one wrote that she (the claimant) was next. The claimant stated that the postal inspector and supervisor to whom she reported the incident did nothing. However, statements were submitted which reflected that the postal inspector told the supervisor that the claimant just wanted to put the incident on record, and that the supervisor was prepared to give a service talk but was told by the shop steward not to have a service talk because it would alert the individual who wrote the note. The Board found that there was no evidence that the employer erred or acted abusively, and therefore this was not a compensable work factor.
The claimant did not submit support for her allegation of ongoing supervisory observation for extended periods of time, and the Board found that this was not a compensable factor of employment.
The claimant reported a verbal altercation with a co-worker, in which she was called a name but to which she responded in kind. Both she and the co-worker were reprimanded. The Board found that the incident did not arise out of the claimant's regular or specially assigned duties. She had engaged in name calling, and the agency did not err or act abusively in handling the matter, therefore, the incident did not constitute a factor of employment.
Another incident was reported in which a fellow employee made an obscene gesture. There was a history of disagreement between the claimant and this co-worker. This particular incident arose out of a disagreement between them concerning the volume of a communal radio. Since use of the radio was part of the claimant's day to day duties, the Board found that this incident was a factor of employment. The claimant stated that she was unfairly given a disciplinary action for a nosebleed. The supervisor stated that he called the claimant into his office to discuss other incidents. The Board found that that there was no evidence of employer error or abuse.
Based on the two compensable work factors noted above, and the sufficiency of the medical evidence submitted in support of the claim, the Board remanded the case for the preparation of a statement of accepted facts and referral to an appropriate medical specialist.
In Smith, the claimant was a profoundly deaf city letter carrier who claimed stress due to not receiving timely reasonable accommodations requested under the Americans with Disability Act (ADA). The claimant had been working in another (larger) postal facility, where there were other hearing impaired employees, while there were none at the new facility. The claimant requested the job transfer. During his pre-employment interview, he communicated by using a note pad, and did not request an interpreter. After he began working at the new job, he requested a translator for work-related meetings, a visual fire alarm and other visually-oriented safety devices, and a means of communicating with coworkers and supervisors at work and with the employer while he was on his delivery route. He did not have these items at his former location. He stated that communication had been good at the former location because there was another employee there who knew sign language and could act as an interpreter. It took the employer two months to get a T.D.D. translating machine, and five months for the visual safety devices to be installed, which were installed in places that the claimant could not see. He complained that other clerks would get in front of his face and wave their hands to get his attention. He also claimed that he had not received safety training, had not been trained as a carrier in his new area, or as a clerk, could not call for help when he had truck trouble, advise his employer that he was running late, or attend required meetings because he had no T.D.D. machine or interpreter.
The supervisors responded that the employee had received safety training at his former location, that he received the same clerk training as other individuals, that the T.D.D. machine and other devices had been difficult to obtain because they did not know where to get them, and difficult to install because of the need to hire a contractor and codes. They stated that they were not sure how the claimant wished to be dealt with, since all of his communication was through the shop stewards, rather than directly. They were not aware that people were getting in his face, and prior to his arrival had suggested methods other than touching should be used to get his attention. In a Step 2 Grievance Decision/Settlement, the employer agreed to provide a sign language interpreter at safety meetings, and a portable T.D.D. machine for claimant's use while he was on his route. The employer also stated that when the claimant interviewed for the job, he did not request special accommodations, and that if he had expressed his needs earlier, they would have accommodated him sooner.
The district office denied the claim, finding that the claimant's condition was not due to compensable employment factors. The Board affirmed the decision. They found that the claimant's job transfer was voluntary, and that he did not make his needs known before he started working on the new job. He had not required special accommodations in the former job. The employer met his needs after they were communicated. The time lag in providing the accommodations was due to the claimant's failure to advise his employer, rather than employer neglect. They stated that the disabling condition arose from not being permitted to work in a particular environment, which is not compensable under the Act, particularly where no advance notice of special needs was given.
Back to Top of FECA Circular No. 99-06
PERFORMANCE OF DUTY - ON THE PREMISES
Patrick Dunn, Docket No. 95-2319, Issued July 2, 1997
Diane Bensmiller, Docket No. 95-3108, Issued September 15, 1997
Both of these decisions deal with performance of duty issues.
In Dunn, the claimant requested and was granted leave to consult with his union representative concerning a previous work injury. After speaking with the union representative, he went to the medical records office to obtain copies of the medical reports from his prior injury, for which he had been treated at the employing establishment. He was injured as he left the medical records office. The Office rejected the claim on the basis that fact of injury was not established. Modification of the decision was also denied.
The Board found that the claimant was injured in the performance of duty. "Performance of duty" is interpreted as "arising out of and in the course of employment." When the hours and place of work of an employee are fixed, there is a strong presumption that an employee who is injured on the premises during working hours is in the performance of duty. The claimant was injured while on administrative leave, on the premises, obtaining copies of records for an accepted work-related injury. Copies of the records were needed so that the claimant could obtain treatment for the work-related injury, as the employer was no longer going to provide treatment on the premises. The Board found that this activity was reasonably incidental to his employment, and that he was therefore in the performance of duty.
In Bensmiller, the claimant was injured when she tripped on a metal post while walking in a parking lot which was adjacent to the employing establishment. In response to an Office inquiry, the employer stated that the parking lot was provided for employees, but was not owned, maintained, or controlled by the employer. They stated that parking was provided for all employees because no public transportation was available. Based on this information, the Office rescinded a prior acceptance of the claim, and found that the injury did not occur in the performance of duty, as she was not on the premises.
Following the Office's decision, the claimant sent a letter to the Office, in which she related that on the date of injury, when she attempted to park her car in the employer-owned parking lot, she was blocked due to construction, and was redirected to an adjacent (non-employer) lot. At the time she was injured, she had gone to pick up her lunch and move the car to the regular (employer) parking lot, when she tripped on a protruding post and fell.
The Board found that although the injury did not occur on the employer's premises, the facts of the case brought it into the proximity exception to the premises rule. Under the proximity rule, special circumstances may extend the industrial premises to include hazardous conditions which are proximately located to the premises. In this case, all employees were provided with parking space on the premises, but due to the special circumstances on the date of injury, the claimant was forced to use an adjacent lot, which contained a hazardous condition, the protruding post. She was in a pay status and was involved in an activity related to her employment (obtaining her lunch and moving her car to the employer's lot) when she was injured. The Board reversed the Office's decision.
Back to Top of FECA Circular No. 99-06
RECONSIDERATION - TIMELINESS
Linda F. Anderson, Docket No. 96-2121, Issued September 18, 1997
Maria Puente, Docket No. 95-2240, Issued July 15, 1997
Christine Marcelle, Docket No. 95-2147, Issued August 8, 1997
In Anderson, the Office denied the claimant's request for a schedule award on June 14, 1994. On June 2, 1995, a request for reconsideration and additional medical evidence was received from an attorney, who stated that he represented the claimant. On August 25, 1995, the claimant was informed that the attorney's request for reconsideration was invalid, because there was no written notification from the claimant, appointing the attorney as her representative. On January 9, 1996, the attorney again requested reconsideration, and submitted additional medical evidence, as well as written authorization from the claimant. The claimant contended that the June 2 request for reconsideration was timely, as she did not know that written notice of authorization was required.
On June 5, 1996, the Office found that the request for reconsideration was not timely (not filed within one year), and that the request did not present clear evidence of error.
The Board found that the request for reconsideration was timely, and set aside the Office's denial of reconsideration. They stated, "There is no requirement that the Office actually have the authorization in hand at the time an authorized representative acts on behalf of a claimant. The representative only needs to show that he was authorized at the time such action was undertaken."
The injury was accepted in the Puente case, but the claim of compensation for a specific period of disability was denied on April 7, 1993. In a letter dated May 7, 1993, an appeal was requested. On July 22, 1993, the claimant requested a hearing. She again requested a hearing on October 7, 1993, January 10, 1994, and December 21, 1994. On February 27, 1995, the request for a hearing was denied because it was first requested (on July 22, 1993) more than 30 days after the April 1993 decision. The Office considered the matter further in relation to the issue and denied the request because the issue could be resolved by requesting reconsideration and submitting additional evidence.
A reconsideration of the April 1993 decision was requested on March 20, 1995. The request was denied as untimely and lacking in clear evidence of error.
The Board found that the Office properly denied the request for a hearing, but improperly denied the request for reconsideration as untimely. A hearing had been requested three months after the Office's April 1993 decision. However, the denial of the hearing was not issued until February 27, 1995. The delay in addressing the request for a hearing deprived the claimant of the opportunity to make a timely request for reconsideration. The case was remanded for a de novo decision on the issue of disability for the period that was previously denied, so as to protect the claimant's rights of appeal.
In Marcelle, a claim was filed for stress due to harassment on the job, which was denied on June 1, 1993 for failure to establish injury in the performance of duty. On February 3, 1994, a hearing representative affirmed the district office's decision, and instructed the claimant to direct any request for reconsideration to the district office in Jacksonville, Florida.
In a February 9, 1995 letter, addressed to the Washington, D.C. office and received on March 6, 1995, the claimant stated that she was still waiting for a response to her letter dated April 20, 1994, in which she requested reconsideration. On May 9, 1995, the Office rejected her claim for reconsideration as untimely, and found that it did not establish clear evidence of error. They stated that there was no evidence that the April 20, 1994 letter was actually received in either the Washington, D.C. or Jacksonville offices within one year of the last merit decision in the case, which was issued on February 3, 1994.
The Board considered whether the mailbox rule was applicable in this case. Under this rule, a letter mailed in the ordinary course of business is presumed to have been received. The rule can be applied to communications sent both to and from the Office. However, the rule cannot be invoked unless the sender can show that mail is sent consistently in the course of business. The claimant in this case did not present evidence that she routinely sends correspondence in the course of business, therefore the mailbox rule could not be applied. The Board agreed that the request for reconsideration was not timely, and affirmed the Office's decision.
Back to Top of FECA Circular No. 99-06
RECURRENCE - CHANGE IN SHIFT
Fallon Bush, Docket No. 95-2237, Issued July 15, 1997
This claim was accepted for aggravation of arthritis of the left hip, and hip replacement surgery. The office paid compensation for total disability until the claimant returned to light duty work. Shortly after returning to work, the claimant was changed to a daytime shift on the recommendation of his physician, who stated that his arthritic condition was worse later in the day. The claimant continued to work for 20 months, until he was reassigned to an evening shift. He stopped working and filed a claim for total disability, which was denied by the Office.
The Board found that when an employee on light duty stops working, they must show a change in the nature and extent of disability, or a change in the light-duty job requirements. In this instance, the requirements of the job (that he work an evening shift rather than a daytime shift) had changed so that they were no longer within the restrictions specified by his physician. The Board reversed the Office's decision and remanded the case for payment of compensation.
Back to Top of FECA Circular No. 99-06
REFUSAL/ABANDONMENT OF SUITABLE EMPLOYMENT
Sandra J. Corson, Docket No. 95-1933, Issued July 2, 1998
In this case, benefits were terminated by the Office on the basis of Section 8106 (c)(2) of the Act.
The claimant was offered a temporary, light-duty nursing job, for five hours per day. The restrictions of the job were in accordance with those recommended by a second opinion specialist and agreed to by the claimant's own attending physician. The claimant was advised by the Office that the job was suitable, and that she had 30 days to accept the job, or provide reasons for refusing it. She was advised that if she failed to accept the position, her reasons for refusing the job would be considered prior to determining whether the reasons for refusal were justified. She was also advised that a claimant who refused an offer of suitable work was not entitled to compensation.
The claimant returned to work, but stated that her left leg was giving out and was causing her to fall. She stopped working that same day. She completed the job offer form by refusing the job, stating that she had a tendency to fall and was at risk for further injury.
The Office advised the claimant that the light-duty job remained suitable and available. The Office did not indicate that it had considered her reasons for refusing the job, and did not advise her whether her reasons for refusal were accepted or rejected. She was given an additional 15 days to report to work or provide additional evidence.
The claimant responded by reiterating that she had refused the job due to left sciatica, and that she was unable to provide additional medical evidence because she had been discharged from treatment by her former physician, and had been unable to locate a new physician.
The Office terminated compensation benefits on the basis of refusing suitable work, and stated that no evidence had been received in response to the job offer. The Office did not advise the claimant that her work stoppage (on the day she returned) was unjustified, did not consider her explanation of why she stopped work, and did not explain why her work stoppage was unjustified. The Board reversed the Office's decision. In doing so, they reiterated the concept that a claimant has a property interest in not having benefits terminated, and a vested interest in not being coerced into accepting a job which may worsen his or her condition. To ensure regularity and impartiality, the Office must not only inform the claimant of the penalty provisions of 5 U.S.C. 8106(c)(2), but must inform him or her that the job is suitable, the consequences of refusing the job, and allow a reasonable period of time for them to accept the job or provide reasons for refusing it. If the claimant provides reasons for refusing a job, the Office must consider those reasons and inform the claimant whether the reasons are accepted or rejected.
Back to Top of FECA Circular No. 99-06
TIMELINESS - OCCUPATIONAL DISEASE CLAIM
George W. Blackmon, Docket No. 95-1872, Issued July 9, 1997
On February 3, 1993, an occupational disease claim was filed for hypertension, coronary artery disease, and stroke. The claimant stated that he first became aware of the conditions on January 17, 1990, and was first aware that the conditions were work-related on February 1, 1993. The claimant had been diagnosed with hypertension as early as 1973. His last exposure to the work factors that were thought to have contributed to the condition was no later than January 31, 1990. He was off from work for diagnostic testing and coronary bypass surgery from January 3 through May 16, 1990, and returned to limited duty. The office denied the claim on the basis that it was not timely filed, stating that he should have been aware that the condition was work-related on January 16, 1990, when he was given the results of diagnostic tests, but did not file a claim for more than three years.
A hearing was requested. The claimant stated that he did not immediately relate his chest pain to his work because he was more concerned with the condition itself than with the cause. The hearing representative affirmed the Office's decision.
The claimant requested reconsideration. He stated that the physician who treated him in 1990 had indicated that his job was not a factor, and submitted reports from 1990 in which the physician indicated that the conditions were not caused or aggravated by employment activity. The claimant stated that he did not realize that his condition was work-related until another physician so informed him on February 1, 1993. Modification of the prior decision was denied. The claimant again requested reconsideration, and submitted a note from his original physician which stated that he had advised the claimant in 1990 that the conditions were not work-related. Modification was again denied.
The Board found that the claim was timely filed. The three-year period for filing a claim did not begin to run until February 1, 1993, when the claimant was first advised that his condition was work-related.
Back to Top of FECA Circular No. 99-06
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-07 |
January 7, 1999 |
SUBJECT: Code changes for the Departments of the Air Force, Army, Defense, Transportation, Treasury, and Veterans Affairs, and the U.S. Postal Service and the Federal Judiciary, Case Management Users' Manual, Appendix 4-7
The Case Management Users' Manual is being updated and revised to reflect multiple changes, including the addition of several new codes. For the Department of the Air Force, new codes have been added to reflect the establishment of the Air Force Research Laboratory and the Air Force Services Agency. For the Department of the Army, new code 3893 has been added for the National Guard to reflect coverage for the National Guard Youth Challenge Program. For the Department of Defense, several agencies, including the Defense Special Weapons Agency, have combined to form the Defense Threat Reduction Agency, and chargeback code 3004 (formerly assigned to the Defense Special Weapons Agency) is now assigned to this new agency. Certain printing functions have also been assigned to the Defense Logistics Agency, and chargeback code 3034 will henceforth be used for employees of the Defense Automated Printing Service. For the Department of Transportation, a new chargeback code has been added to reflect injuries sustained by cadets at the State Maritime Academies, coverage noted in Chapter 2-0802.18 of the FECA Procedure Manual. For the Department of the Treasury, chargeback code 2150 has been expanded to include not only IRS National Office employees but also employees of IRS Computer Centers in Martinsburg, WV and Detroit, MI and IRS Service Centers in 10 separate cities. For the Department of Veterans Affairs, 4 new codes have been added to reflect injuries reported by employees of newly created offices, and name changes for 2 VA facilities in Indiana have been made. For the U.S. Postal Service, a previously existing code has been changed to reflect injuries reported by employees of the newly created Office of the Inspector General, an organization separate from the Postal Inspection Service. Finally, in the Federal Judiciary, two new chargeback codes has been added to reflect coverage under FECA beginning in October, 1997 for employees of the D.C. Superior Court (code 1370) and the D.C. Court of Appeals (code 1371).
Because the procedures for adding new chargeback codes to the Case Management File have changed, ADP Systems Managers no longer need to add the chargeback codes listed below; they have been added by National Office staff. Changes in the titles for employing agencies which already exist in the agency address field will have to be added to an individual agency address.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
_________________________________________________________________
|
Trans-action |
Code |
Dept. |
Agency |
|---|---|---|---|
|
|
|
|
|
|
Add |
3773 |
Air Force |
Air Force Research Laboratory (AFRL) |
|
" " |
3774 |
" " |
Air Force Services Agency (AFSVA) |
|
|
|
|
|
|
Add |
3893 |
Army |
Natl Guard Youth Challenge Program |
|
|
|
|
|
|
Add |
2535 |
DOT |
State Maritime Academy Cadets |
|
|
|
|
|
|
Add |
4508 |
VA |
Chief Information Officer |
|
" " |
4522 |
" " |
Office of Resolution Management |
|
" " |
4523 |
" " |
Office of Employee Education |
|
" " |
4524 |
" " |
Health Eligibility Center |
|
|
|
|
|
|
Add |
1370 |
Fed Judic |
D.C. Superior Court |
|
" " |
1371 |
"" |
D.C. Court of Appeals |
|
|
|
|
|
|
Change |
3004 |
Defense |
from: Defense Special Weapons Agency |
|
|
|
|
|
|
" " |
3034 |
" " |
from: Defense Subsistence Supply Center |
|
|
|
|
|
|
Change |
2150 |
Treasury |
from: IRS National Office, Washington, D.C. |
|
|
|
|
|
|
Change |
4093 |
VA |
from: Fort Wayne VAMC |
|
|
|
|
|
|
" " |
4097 |
" " |
from: Marion VAMC |
|
|
|
|
|
|
Change |
5102 |
USPS |
from: Eastern Region, Administration |
Distribution: List No. 5 - Folioviews Groups C and D
(All Supervisors, Index and Files Personnel, Systems Managers and Technical Assistants)
Note: Immediate distribution to chargeback coding personnel is essential.
Back to Top of FECA Circular No. 99-07
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-08 |
January 8, 1999 |
SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection
The interest rate to be assessed for the prompt payment bills is 5.0 percent for the period January 1, 1999 through June 30, 1999.
Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.
The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through January 31, 1999. The interest rate has been updated in the Debt Management System.
Attached to this Circular is an updated listing of the DMS interest rates from January 1, 1984 through current date.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Attachments
Distribution: List No. 2--Folioviews Groups A, B, and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)
Attachment 1
| Dates | Rates |
|---|---|
|
1/1/99 - 6/30/99 |
5.0% |
|
7/1/98 - 12/31/98 |
6.0% |
|
1/1/98 - 6/30/98 |
6 1/4% |
|
7/1/97 - 12/31/97 |
6 3/4% |
|
1/1/97 - 6/30/97 |
6 3/8% |
|
7/1/96 - 12/31/96 |
7.0% |
|
1/1/96 - 6/30/96 |
5 7/8% |
|
7/1/95 - 12/31/95 |
6 3/8% |
|
1/1/95 - 6/30/95 |
8 1/8% |
|
7/1/94 - 12/31/94 |
7.0% |
|
1/1/94 - 6/30/94 |
5 1/2% |
|
7/1/93 - 12/31/93 |
5 5/8% |
|
1/1/93 - 6/30/93 |
6 1/2% |
|
7/1/92 - 12/31/92 |
7.0% |
|
1/1/92 - 6/30/92 |
6 7/8% |
|
7/1/91 - 12/31/91 |
8 1/2% |
|
1/1/91 - 6/30/91 |
8 3/8% |
|
7/1/90 - 12/31/90 |
9.0% |
|
1/1/90 - 6/30/90 |
8 1/2% |
|
7/1/89 - 12/31/89 |
9 1/8% |
|
1/1/89 - 6/30/89 |
9 3/4% |
|
7/1/88 - 12/31/88 |
9 1/4% |
|
1/1/88 - 6/30/88 |
9 3/8% |
|
7/1/87 - 12/31/87 |
8 7/8% |
|
1/1/87 - 6/30/87 |
7 5/8% |
|
7/1/86 - 12/31/86 |
8 1/2% |
|
1/1/86 - 6/30/86 |
9 3/4% |
|
7/1/85 - 12/31/85 |
10 3/8% |
|
1/1/85 - 6/30/85 |
12 1/8% |
Back to Top of FECA Circular No. 99-08
Attachment 2
| Dates | Rates |
|---|---|
|
1/1/99 - 12/31/99 |
5% |
|
1/1/98 - 12/31/98 |
5% |
|
1/1/97 - 12/31/97 |
5% |
|
1/1/96 - 12/31/96 |
5% |
|
7/1/95 - 12/31/95 |
5% |
|
1/1/95 - 06/30/95 |
3% |
|
1/1/94 - 12/31/94 |
3% |
|
1/1/93 - 12/31/93 |
4% |
|
1/1/92 - 12/31/92 |
6% |
|
1/1/91 - 12/31/91 |
8% |
|
1/1/90 - 12/31/90 |
9% |
|
1/1/89 - 12/31/89 |
7% |
|
1/1/88 - 12/31/88 |
6% |
|
1/1/87 - 12/31/87 |
7% |
|
1/1/86 - 12/31/86 |
8% |
|
1/1/85 - 12/31/85 |
9% |
|
Prior to 1/1/84 |
not applicable |
Back to Top of FECA Circular No. 99-08
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-09 |
March 23, 1999 |
SUBJECT: SELECTED ECAB DECISIONS FOR JANUARY - MARCH, 1998
The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.
The subjects addressed include: rescinding accepted claims for emotional conditions; injury while on temporary duty; abuse of discretion in attorney's fee reduction; death benefits for surviving grandchildren where an eligible widow or widower exists; special weight of a second opinion evaluation upon reexamination; allowing at least 30 days for claimants to submit information required to meet their burden of proof; and authorizing medical treatment recommended after the fact.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
ATTORNEY'S FEE APPLICATION - ABUSE OF DISCRETION
Neil R. Stein, Docket No. 96-324, Issued March 4, 1998
Recent changes to the regulations will serve to simplify the process by which OWCP adjudicates application for approval of representative's fees (see FECA Bulletin 99-14). However, when the claimant objects to the amount of the requested attorney's fee, the Office must evaluate the itemized billing according to several criteria.
In the above case, the representative submitted an itemized fee application of $7,705.75 for 23.71 hours of work at an hourly rate of $325.00. The claimant objected to the amount of the fee, stating that the billing time was padded to increase the hours, too much time was shown for standard letters and short telephone calls, the hourly rate was too high, and the initial "free" consultation was included. The claimant did not wish to pay more than $4000.00.
The Office approved an attorney's fee in the amount of $5008.75. The hourly rate of $325.00 was reduced to $175.00 for 1992, and $250.00 for 1993. The Office disallowed the fee for the initial consultation, and reduced the time charged on 36 of the 63 billed services. The Office stated that the time reductions were based on the claimant's statements, and what were judged to be reasonable amounts of time for routine actions.
The Board found that the Office abused its discretion, and remanded the case. The claimant submitted his comments on the fee directly to the Office; the representative did not have the opportunity to address the claimant's objections to the amount of the fee. The representative asked for a copy of the claimant's comments, but was not provided with them.
In addition, the file reflected no documentary information to support the reduction of the hourly rates for 1992 and 1993.
In cases where the claimant objects to the representative's fee, and the claimant's statement has not already been reviewed by the representative, a copy of the claimant's statement should be provided to the representative for comment.
Back to Top of FECA Circular No. 99-09
BURDEN OF PROOF - TIME FOR SUBMITTING EVIDENCE
Lenease Norman, Docket No. 95-2973, Issued February 23, 1998
A claim was filed for a traumatic back injury. On July 27, 1995, the claimant was advised of the evidence needed to establish her claim, and was given twenty (20) days to provide that evidence. On August 17, 1995 (21 days later), her claim was denied for failure to establish fact of injury. The Board set aside the decision and remanded the case for further development.
Prior to the recent revision of the regulations, 20 C.F.R. 10.110(b) stated:
If a claimant initially submits supportive factual and/or medical evidence which is not sufficient to carry the burden of proof, the Office will inform the claimant of the defects in proof and grant at least thirty (30) calendar days for the claimant to submit the evidence required to meet the burden of proof.
The proposed revised regulations issued on December 23, 1997 stated that "up to 30 days" would be allowed for the submission of additional evidence. In section 10.121 of the final rule published on November 25, 1998, however, it states, "the claimant will be allowed at least 30 days to submit the evidence required."
This decision serves as a reminder that, regardless of timeliness standards for issuing decisions, claimants must be given at least the required amount of time (30 days) to submit additional evidence.
Back to Top of FECA Circular No. 99-09
DEPENDENT GRANDCHILDREN - DEATH BENEFITS WHEN THERE IS A WIDOW OR WIDOWER
Clyde Stevenson, Docket No. 95-3016, Issued February 4, 1998
The claimant in this case was a widower who was receiving survivor's benefits due to the death of his spouse. He claimed additional survivor's benefits on behalf of his grandson, who was being supported financially by the deceased at the time of her death. The widower gained custody of the grandchild by court order 19 months after his wife's death.
The Office denied the claim for additional survivor benefits initially on August 24, 1994, on the basis that a grandchild was not entitled to compensation if there was a widower receiving compensation. On February 23, 1995, the Office vacated the previous decision and found that there could be concurrent entitlement to survivor's benefits. However, on March 28, 1995, the Office set aside the February 1995 decision. A subsequent hearing decision upheld the denial of benefits on behalf of the grandchild.
The Board found that interpreting 5 U.S.C. 8133 as barring survivor benefits to a grandchild if benefits were being paid to a widow or widower was incorrect. They stated:
Section 8133 of the Act provides that survivor benefits are payable in accordance with the formula set forth in the statute. It is well established that the Act is a remedial statute and should be broadly and liberally construed in favor of the employee to effectuate its purpose and not in derogation of the employee's rights. A primary rule of statutory construction is to give effect to legislative intent and it is well settled that, in arriving at intent, the statute must be construed in whole, rather than in part.
The Board stated that the intent of the statute was to provide up to a maximum total of 75 percent compensation to any dependent family member, including spouse, child, parent, sibling, grandchild, or grandparent of the deceased. In discussing the intent of the statute, the Board looked at the predecessor of section 8133 in effect until the 1966 amendments. The language of section 8133's predecessor was much clearer with regard to benefits for surviving grandchildren. The Board also quoted from House of Representatives Report that accompanied the 1966 revisions to the Act, which stated that the intent of the bill was to restate the provisions previously in effect, without substantive change. The Board noted that the subparts of Section 8133 were to be read cumulatively, not independently.
The Board reversed the Office's decisions and remanded the case for completion of a form CA-5b, and a determination as to whether the grandchild was wholly or partially dependent on the deceased at the time of death.
Back to Top of FECA Circular No. 99-09
MEDICAL TREATMENT - RECOMMENDATION BY PHYSICIAN AFTER THE FACT
Sheila G. Peckenschneider, Docket No. 96-1152, Issued March 25, 1998
This claim was accepted for cervical strain and tendinitis of the left shoulder. The claimant submitted bills for acupuncture treatments she received from December 1991 through March 1994. The Office advised her that acupuncture could be authorized if recommended and supervised by the attending physician, and that periodic reports from the physician to show progress or relief of symptoms would be required. They also advised her that no recommendation for acupuncture or treatment notes were found in her file. The claimant submitted treatment notes from the acupuncturist, who signed as a "licensed acupuncture physician," but there was no indication that this individual was a physician as defined by section 8101(2) of the Act. She also submitted a note from her internist that stated, "The only relief she has ever gotten was from acupuncture. She is to continue acupuncture as medically necessary for pain relief. She has been using acupuncture for the last two and one-half years for pain relief." The claimant also submitted reports from her orthopedic surgeon that recommended that she continue acupuncture treatments. The Office denied payment for the acupuncture treatments.
The Board affirmed the Office's decision. The treatment notes did not constitute medical evidence, since it was not clear that the acupuncturist was a qualified physician. The note from the internist was characterized as "after-the-fact acknowledgment of treatment and its benefits." The Board found that such late recognition of treatment could not substitute for a physician's referral and direction. Neither physician submitted progress reports to show progress or relief of symptoms, nor did they indicate they were supervising the treatments.
Back to Top of FECA Circular No. 99-09
PERFORMANCE OF DUTY - COMPENSABLE FACTORS OF EMPLOYMENT - RESCINDING PRIOR ACCEPTANCES
Homer L. Mooney, Docket No. 96-2360, Issued January 13, 1998
Constance I. Galbreath, Docket No. 95-149, Issued March 13, 1998
Both of these decisions involved rescinding prior acceptances for emotional conditions sustained in the performance of duty. The Office's decisions were affirmed in both decisions.
In Mooney, the claim was accepted for major depression and gastritis on March 9, 1994. The acceptance was rescinded on May 28, 1996, on the basis that the claim was accepted in error, and that the condition did not arise in the performance of duty. The Board found that the Office had submitted sufficient new legal argument and rationale to justify the rescission.
The Office found that none of the employment factors cited by the claimant were compensable. The claimant alleged harassment by his supervisor and co-workers. For harassment to be compensable, there must be evidence that harassment actually occurred. The claimant stated that his supervisor placed a deadline on him to complete his route, and followed him on his route. Monitoring an employee's route is an administrative function, and is not compensable absent employer error or abuse. No error or abuse was shown. The claimant stated that his supervisor wrongly allowed another employee to case mail on his route. This again would be an administrative function, and not compensable unless the employer erred or was abusive. Although the claimant received pay for the overtime he lost due to the other employee's work, this action in itself did not establish employer error or abuse. The claimant alleged that his supervisor allowed other employees to laugh at him and tell him he was slow. He did not provide any details or witness statements, and thus the allegations were not established as factual. The claimant also stated that he had an unreasonable workload, that he was forced to complete his route in eight hours, that other employees increased his work by casing his mail, and that substitute carriers increased his work by leaving mail for him to deliver the next day. Although these factors could be compensable, the claimant had not established them as factual.
In Galbreath, the claimant alleged disability due to being "verbally attacked, abused and humiliated" by the Human Resources Field Director on one single occasion. The employer controverted the claim, and submitted a statement from a witness to the events from the claimant's acting supervisor. The claim was accepted in September 1990, then rescinded in March 1994. In rescinding the prior acceptance, the Office explained that the claim was originally accepted based on the claimant's allegation of harassment, but no finding of harassment had ever been made. The Field Director met with the claimant to discuss her job performance, and to issue a letter of warning. This discussion would be considered an administrative function, and would not be compensable unless there was error or abuse by the employer. The witness to the discussion stated that the discussion was routine and professional, and that there was no strong language used.
The Board affirmed both the March 1994 rescission and a later reconsideration decision. In support of the request for reconsideration, the claimant argued that the employer had shown error or abuse, because through an EEOC settlement, the letter of warning was removed, and a monetary settlement made. However, the EEOC decision made no finding of discrimination, and the terms of the settlement were such that neither party admitted to any wrongdoing.
These two decisions are further illustrations of the importance of clearly delineating between compensable and non-compensable employment factors.
Back to Top of FECA Circular No. 99-09
PERFORMANCE OF DUTY - INJURY WHILE ON TEMPORARY DUTY
Jack E. Talbert, Docket No. 94-1810, Issued February 10, 1998
The claimant in this case was on temporary duty while performing an audit in Dallas, Texas. He tore the Achilles tendon of his right leg while playing basketball with a co-worker on the hotel grounds. The audit was being conducted at another location approximately one-half mile from the hotel.
The district office denied the claim on the basis that the injury did not occur in the performance of duty. The Board affirmed the decision.
Employees who travel while on temporary duty assignments are generally considered to be in the performance of duty during the trip, but there are limitations to the coverage. Injuries that arise out the necessity of sleeping in hotels or eating in restaurants are usually compensable. Personal errands that depart from the necessary routine are not compensable. In this case, the claimant was engaged in a personal, recreational activity when he was injured. His activity was not directed by his employer, and was not a necessary part of his temporary duty status. Even though he was on the hotel grounds at the time of injury, he was not in the performance of duty.
Back to Top of FECA Circular No. 99-09
SECOND OPINION EVALUATION - SPECIAL WEIGHT UPON REEXAMINATION
Cerlestine Evans, Docket No. 96-1684, Issued March 13, 1998
The claimant in this case sustained a left knee injury. Knee surgery was authorized by the Office, but the underlying condition of osteoarthritis was not accepted.
In April of 1994, the claimant was examined by Dr. Nelson, a Board-certified orthopedic surgeon, for a second opinion. He stated that her total disability ceased prior to her return to work in March 1991, but did not give reasons for his opinion. He did not address whether the claimant's underlying condition had been aggravated by the work injury.
Subsequent reports from the claimant's attending physicians supported that her condition continued to be work-related, although the reports were not well-rationalized.
The claimant was referred to Dr. Nelson for another second opinion in May 1995. Dr. Nelson stated that the additional surgery being proposed by the claimant's physicians would not be beneficial for her knee pain, and that her preexisting disability did not increase with the work injury. He did not support his opinions with medical rationale.
The Office terminated the claimant's benefits on the basis of Dr. Nelson's reports. In assessing the medical evidence, the office attributed special weight to Dr. Nelson's second report because "he had previously performed a second opinion examination in 1994, such that he was able to assess changes in appellant between 1994 and 1995 and had the benefit of a complete and accurate knowledge of appellant's medical and factual history."
The claimant subsequently requested reconsideration and submitted a report from her physician, disagreeing with Dr. Nelson's statements. Modification was denied, and the office stated that Dr. Nelson's opinion was thorough and well-rationalized.
The Board reversed the Office's decision, finding that there was an unresolved conflict of medical opinion that required referral to an impartial medical specialist. Neither Dr. Nelson's nor the attending physicians' opinions were well-rationalized. The Board also made special note that the second opinion physician's reports were not entitled to special weight by virtue of his having seen the claimant previously and being able to compare findings over time.
Back to Top of FECA Circular No. 99-09
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-10 |
March 22, 1999 |
SUBJECT: Selected ECAB Decisions for April-June, 1998
The attached group of summaries of selected ECAB decisions is provided to point out novel issues recently addressed by the Board.
Included in this FECA Circular are summaries on the performance of duty and on use of leave for hearings.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No.1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
PERFORMANCE OF DUTY--HARASSMENT
Christophe Jolicouer, Docket No. 1996-0597, Issued June 11, 1998
In this case, the Board discusses specifically whether shouting and/or cursing by a supervisor at a subordinate will be considered harassment.
The claimant was a 40-year-old examiner assistant. His acting supervisor ordered him to look for a missing roll of forms. Not finding the forms, he returned to his usual duties. Upon noticing this, the acting supervisor scolded him for not continuing to look for the "damn" forms. A witness confirmed this encounter.
The Board found that this was an isolated comment from the acting supervisor, and that, as the claimant had not shown how this incident rose to the level of verbal abuse, this would not fall within the performance of duty.
Back to Top of FECA Circular No. 99-10
PERFORMANCE OF DUTY--TRAVEL
Kathleen M. Fava, conservator, Docket No. 1995-0268, May 18, 1998
In this case, a federal employee suffered severe head injuries while in a travel status which eventually led to his death. The claim was initially accepted but later rescinded on the basis of new factual evidence.
The employee, a 38-year-old aircraft electrician, was on temporary duty status when injured. He and two co-workers also on temporary duty went sightseeing and to dinner. They were to return to temporary duty the following day. During the evening, they played pool and drank beer at a sports bar, followed by dinner and then a return to the sports bar for additional games of pool and more beer.
They left the bar at 11:00 p.m. to return to the campus where they were staying. Their van was parked at the end of a grassy area with a retaining wall. The employee turned to speak as he approached the end of the retaining wall and fell to the pavement (approximately three feet), striking his head. He was unresponsive and bleeding from the head and nose.
His companions took him back to the campus in the van, and medical attention was summoned. The employee was comatose and in critical condition. He was also found, the following morning, to have a blood alcohol level of .166.
The Office initially accepted the claim, but later rescinded the acceptance, finding that the drinking and playing pool were not reasonably incidental to the TDY mission. This was based upon new information, notably statements from the parties present at the time of injury.
The conservator of the estate later requested reconsideration, but review was denied.
The Board found that the recission of acceptance was correct when issued, as the drinking beer and playing pool were, indeed, not incidental to the TDY. However, the Board also found that the new evidence submitted with the reconsideration request was sufficient to require further development.
Specifically, upon return to the campus, the employee may have suffered additional injuries, and the Board found that these injuries may have the potential to be within the performance of duty. The later incidents, which involved his removal from the van by his apparently intoxicated companions, occurred at the quarters to which he was assigned and while he could not be said to be engaged in personal or recreational activities.
The Board found that the deviation created by his travel to the sports bar ceased when he was returned to his quarters. The case was remanded for medical development of the extent of his injuries upon return.
Back to Top of FECA Circular No. 99-10
LEAVE REPURCHASE
Raymond H. Chandler, Docket No. 1996-1225, April 13, 1998
In this case, the claimant filed a claim for compensation attempting to repurchase leave used to attend a hearing with an Office Hearing Representative.
The Board found that, as neither the Act nor its implementing regulations contain any provision authorizing such payment, the Office and the Board may not create such a provision. OWCP's denial of the claim for leave repurchase was affirmed.
Back to Top of FECA Circular No. 99-10
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-11 |
April 22, 1999 |
SUBJECT: Selected ECAB Decisions for July-September, 1998
The attached group of summaries of selected ECAB decisions is provided to point out novel issues recently addressed by the Board.
Included in this FECA Circular are summaries on payment for authorized supplies, civil employee, idiopathic falls, and overpayments and the ability to make repayment.
THOMAS M. MARKEY
Director for
Federal Employees' Compensation
Distribution: List No.1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
MEDICAL EXPENSES AND TREATMENT--SERVICES, APPLIANCES, AND SUPPLIES
James R. Bell, Docket No. 1995-2786, Issued August 20, 1998
In this case, the claimant requested reimbursement for operating expenses for electricity and water for a Jacuzzi whirlpool spa. OWCP had previously authorized the purchase of the spa as related to treatment for the accepted condition.
The request for reimbursement was denied because the specific expenses incurred were not provided for under section 8103(a) of the Act.
The Board found that the approval of services, appliances, and supplies is within the discretion of OWCP, and that this discretion has been construed broadly to be defined as those items considered by OWCP likely to cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of monthly compensation. The Board also found that while a contrary conclusion might have been reached, this decision was within the limits of reasonableness and not an abuse of discretion.
Back to Top of FECA Circular No. 99-11
CIVIL EMPLOYEE
Jane Doe, Docket No. 1996-2477, August 24, 1998
In this case, the appellant was a student, completing a phlebotomy laboratory rotation at a Veterans Administration Medical Center (VAMC) when she was stuck by a needle. The VAMC filed a claim for her injury, and the claim was accepted, as OWCP found her to be an employee of the VAMC who was injured in the performance of duty.
The student then appealed that decision, contending that she was not a VAMC employee as she had not signed a letter of appointment activating her student status.
The Board affirmed the Office's decision, finding that Ms. Doe was an employee for purposes of the Act because there was a statute allowing the VAMC to accept her unpaid services and because the services provided by her were substantially similar to those provided by paid employees.
Back to Top of FECA Circular No. 99-11
IDIOPATHIC FALLS
Joseph C. Gunter, Docket No. 1997-0246, September 22, 1998
In this case, the claimant filed a claim for compensation after undergoing a syncopal episode while driving a postal vehicle and colliding with another vehicle. The Office denied the claim, finding that the syncope could not be found to have occurred within the performance of duty. A laceration of the left brow was accepted, however, as related to the resultant automobile accident.
The Board reversed the Office's decision, noting that no physician provided any specific underlying cause for the syncopal episode. Rather, the episode remains unexplained, so all injuries resulting from it, as well as the expense for the resultant hospitalization and diagnostic workup are compensable.
Claims Examiners are reminded that evidence that a fall or syncopal episode may have some explanation in the claimant's medical history, without a definitive medical opinion confirming this, is not sufficient to find that all injuries resulting therefrom are not compensable. Rather, any fall/blackout not specifically identified by a physician as related to an underlying medical problem should not be considered idiopathic, but should instead be viewed as unexplained and the resultant claim adjudicated accordingly.
Back to Top of FECA Circular No. 99-11
OVERPAYMENTS
Adolphus Bennett, Docket No. 1996-2009, Issued July 8, 1998
In this case, the claimant was found to have excess income such that recovery of an overpayment would be necessary. The claimant was found to have been without fault in the creation of an overpayment due to five years of health insurance non-deduction.
In computing the claimant's ability to repay, the Office included the claimant's son's earnings in computing his ability to repay the debt. No finding was made, however, as to whether the son's income was "reasonably available" to the claimant.
The Board, therefore, remanded the case for further development of this issue. Senior Claims Examiners are reminded that findings of fact must be made in such a scenario, when income other than that of the injured employee and his or her spouse is included in the computation.
Back to Top of FECA Circular No. 99-11
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-12 |
April 26, 1999 |
SUBJECT: Revised CA-7
FECA Bulletin 99-18, dated December 24, 1998, notified offices of the revised Form CA-7, "Claim for Compensation," and provided procedures for its use.
The first printing of the revised CA-7 showed a revision date of July 1997. The correct revision date is November 1998. Printings subsequent to the first will reflect the correct 1998 revision date. The July 1997 printing of the form is identical to the November 1998 version, except for the revision date, and may be used.
In addition, the Government Printing Office stock number provided in FECA Bulletin 98-18 is incorrect. The correct stock number for the revised CA-7 is 029-016-00198-1.
SHEILA M. WILLIAMS
Acting Director for
Federal Employees' Compensation
Distribution: List No. 3--Folioviews Groups A, B, C, and D
(All FECA Employees)
Back to Top of FECA Circular No. 99-12
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-13 |
July 1, 1999 |
SUBJECT: Current Interest Rates for Prompt Payment Bills and Debt Collection
The interest rate to be assessed for the prompt payment bills is 6.5 percent for the period July 1, 1999 through December 31, 1999.
Attached to this Circular is an updated listing of the prompt payment interest rates from January 1, 1985 through current date.
The rate for assessing interest charges on debts due the Government has not changed. The rate of 5 percent continues to be in effect through December 31, 1999.
Attached to this Circular is an updated listing of the DMS interest rates from January 1, 1984 through current date.
SHEILA M. WILLIAMS
Acting Director for
Federal Employees' Compensation
Attachments
Distribution: List No. 2--Folioviews Groups A, B, and D
(Claims Examiners, All Supervisors, Systems Managers, District Medical Advisors, Technical Assistants, Rehabilitation Specialists, and Fiscal and Bill Pay Personnel)
Attachments to FC 99-13
| Dates | Rates |
|---|---|
|
7/1/99 - 12/31/99 |
6.5% |
|
1/1/99 - 6/30/99 |
5.0% |
|
7/1/98 - 12/31/98 |
6.0% |
|
1/1/98 - 6/30/98 |
6 1/4% |
|
7/1/97 - 12/31/97 |
6 3/4% |
|
1/1/97 - 6/30/97 |
6 3/8% |
|
7/1/96 - 12/31/96 |
7.0% |
|
1/1/96 - 6/30/96 |
5 7/8% |
|
7/1/95 - 12/31/95 |
6 3/8% |
|
1/1/95 - 6/30/95 |
8 1/8% |
|
7/1/94 - 12/31/94 |
7.0% |
|
1/1/94 - 6/30/94 |
5 1/2% |
|
7/1/93 - 12/31/93 |
5 5/8% |
|
1/1/93 - 6/30/93 |
6 1/2% |
|
7/1/92 - 12/31/92 |
7.0% |
|
1/1/92 - 6/30/92 |
6 7/8% |
|
7/1/91 - 12/31/91 |
8 1/2% |
|
1/1/91 - 6/30/91 |
8 3/8% |
|
7/1/90 - 12/31/90 |
9.0% |
|
1/1/90 - 6/30/90 |
8 1/2% |
|
7/1/89 - 12/31/89 |
9 1/8% |
|
1/1/89 - 6/30/89 |
9 3/4% |
|
7/1/88 - 12/31/88 |
9 1/4% |
|
1/1/88 - 6/30/88 |
9 3/8% |
|
7/1/87 - 12/31/87 |
8 7/8% |
|
1/1/87 - 6/30/87 |
7 5/8% |
|
7/1/86 - 12/31/86 |
8 1/2% |
|
1/1/86 - 6/30/86 |
9 3/4% |
|
7/1/85 - 12/31/85 |
10 3/8% |
|
1/1/85 - 6/30/85 |
12 1/8% |
Back to Top of FECA Circular No. 99-13
| Dates | Rates |
|---|---|
|
1/1/99 - 12/31/99 |
5% |
|
1/1/98 - 12/31/98 |
5% |
|
1/1/97 - 12/31/97 |
5% |
|
1/1/96 - 12/31/96 |
5% |
|
7/1/95 - 12/31/95 |
5% |
|
1/1/95 - 06/30/95 |
3% |
|
1/1/94 - 12/31/94 |
3% |
|
1/1/93 - 12/31/93 |
4% |
|
1/1/92 - 12/31/92 |
6% |
|
1/1/91 - 12/31/91 |
8% |
|
1/1/90 - 12/31/90 |
9% |
|
1/1/89 - 12/31/89 |
7% |
|
1/1/88 - 12/31/88 |
6% |
|
1/1/87 - 12/31/87 |
7% |
|
1/1/86 - 12/31/86 |
8% |
|
1/1/85 - 12/31/85 |
9% |
|
Prior to 1/1/84 |
not applicable |
Back to Top of FECA Circular No. 99-13
Attention: This circular has been superseded and is inactive.
|
FECA CIRCULAR NO. 99-14 |
August 30, 1999 |
SUBJECT: Loss of Wage Earning Capacity--Actual Earnings from Temporary Positions
Recently, some confusion has arisen about the proper method of determining the wage-earning capacity of temporary employees who are injured and return to work in new temporary positions prior to the expiration of their original appointments.
Specifically, the issue is: must a temporary position last at least as long as the time remaining on the original appointment before OWCP can determine that the actual earnings of that position fairly and reasonably represent the wage-earning capacity of a worker who was a temporary employee when injured?
The length of any temporary position to which the employee returns must be at least 90 days before the actual earnings from such a temporary position can be used to calculate an employee's loss of wage-earning capacity. However, the work need not continue for the length of the original appointment.
For example, an employee who is injured two months into a six month appointment need not return to work in a job lasting six months. Rather, an appointment lasting three months will be sufficient to determine that the job fairly and reasonably represents his or her wage-earning capacity. The rating for loss of wage-earning capacity may be done after 60 days of employment, as with any other employee.
This issue should not be confused with the suitability of a job offer made by an agency to a temporary employee. The employee is obligated under 5 U.S.C. 8106(c) to accept suitable employment, or lose entitlement to compensation. In making a finding of suitability of a job offer to a temporary employee, a position that will continue for a minimum of 90 days will be considered suitable, provided that all other required criteria are met.
The Federal (FECA) Procedure Manual in Chapter 2-814.4b(3), which pertains to offers of employment, states that:
A temporary job will be considered unsuitable unless the claimant was a temporary employee when injured and the temporary job reasonably represents the claimant's WEC. Even if these conditions are met, a job which will terminate in less than 90 days will be considered unsuitable.
Therefore, temporary employment offered to a temporary employee who has not returned to work must not be less than 90 days in duration. Otherwise, the job cannot be considered suitable.
These are two separate issues and different criteria apply.
SHEILA M. WILLIAMS
Acting Director for
Federal Employees Compensation
Distribution: List No. 1, Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
Back to Top of FECA Circular No. 99-14
Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-15 |
August 15, 1999 |
SUBJECT: Selected ECAB Decisions for October - December 1998
The attached is a group of summaries of selected ECAB decisions for the above quarter. The decision summaries are provided to point out novel issues not frequently addressed by the Board, or commonly occurring errors by the Office which need to be emphasized.
Included in this FECA Circular are summaries on a willful misconduct decision, a decision on a "learner's capacity" determination, a decision on non-cooperation with rehabilitation, a decision regarding performance of duty, and several decisions addressing loss of wage-earning capacity determinations. Should you find, upon reviewing a decision summary, that it affords guidance in a topic that you are addressing, do not fail to avail yourself of the ECAB decision in its entirety for your thorough review.
NANCY L. RICKER
Acting Director for
Federal Employees' Compensation
Distribution: List No. 1 - Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
WILLFUL MISCONDUCT
Shirley C. Graham, Docket No. 96-2053, issued October 13, 1998
The claimant injured her back, right leg and right shoulder when she fell over a drawer that she alleged was placed in her way by another employee. The Board found that the Office improperly determined that due to statutory willful misconduct the employee was not covered under the Act.
The claimant was a 59-year-old secretary whose work area was being remodeled along with the work areas of co-workers in her office. She had been directed to remove writing which she had done directly on the office furniture, at the same time that contractors were building cubicles for the new work space. When the contractors complained about the claimant removing and returning office furniture to the work space while they tried to work, the claimant's acting supervisor instructed all of the secretarial staff to stay out of their way while they built the cubicles.
Some hours later, the supervisor observed the claimant continuing to move items to and from her office, so he advised her directly to stop. The claimant was thereafter observed by her acting supervisor and another manager to make a defiant statement and to continue dragging the items of furniture into her office. The witnesses stated that shortly afterwards a thump was heard as a result of her falling over one of the items she had dragged into her area against the instructions of her superior.
The Office denied the claim finding that the claimant's actions were deliberate and intentional, and as such constituted willful misconduct. The Board, on reversing this decision, made the distinction between disobeying a direct order of a superior, and intentionally violating a known safety regulation. The Board pointed out that even though the claimant clearly did disobey a direct order from her superior, there was no evidence to support that the order was phrased as a direction for her to avoid bodily harm such as in a safety rule. The Board stressed that the claimant did not intentionally violate a known regulation designed to save her from serious bodily harm. As background discussion, it referred to § 8102 (a)(1) of the FECA which states that coverage under the Act is afforded when an injury or death is in the performance of duty unless it is "caused by the willful misconduct of the employee..." The Board goes on to explain that the "willful misconduct" defense (which is an affirmative defense 1) has been limited to the deliberate violation of known regulations designed to preserve the employee from serious bodily harm (from Larson's Workmen's Compensation Law). Moreover, the Office must prove that the employee understood the "seriousness of the consequences attending violation of the safety rule since otherwise his conduct can only be described as heedless rather than deliberate and intended to harm himself.
1 Affirmative defense means that the Office has to prove that it did occur, rather than the cliamnat having to provive or support that it did not occur in this manner.
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LWEC/NON-PARTICIPATION IN REHABILITATION
CORLISIA L. SIMS, Docket 97-842, issued December 23, 1998
The employee was a Postal Worker who had suffered two injuries at work on February 12, 1992, and a cervical and right shoulder strain on March 18, 1993. Due to her permanent residuals from the employment injuries the claimant was referred to the rehabilitation program. After being placed in an interrupt status by rehab due to her pregnancy, the claimant was again activated and signed a rehab training plan to participate in an associate degree program in social work.
Sixteen months after signing the training rehabilitation plan, and after several failures to comply with the terms of the agreement and numerous opportunities to show cooperation with the rehab program, the Office issued a proposal to reduce the claimant's benefits. One month after receiving the claimant's response to the proposed reduction, the Office finalized the proposed reduction finding that the claimant had failed to show good cause for her failure to continue with her training program and to undergo vocational rehab as directed in accordance with the provisions of § 8113(b) of the FECA.
The Board affirmed the decision, ruling that the Office properly reduced the claimant's benefits prospectively. It noted that the claimant's wage-earning capacity would have been that of a social work aide had she undergone vocational rehabilitation according to her agreement. It pointed out that the Office may direct a partially disabled claimant to undergo rehab under § 8104 of the Act. The Appeals Board added that, should the claimant fail to cooperate without good cause, the Office may find under § 8113(b) that the wage-earning capacity would have been that of the targeted position had the agreed-upon training program been completed, and may reduce compensation benefits accordingly. The Board observed upon review of the case that the claimant had been counseled on several occasions regarding her noncompliance with the rehab plan, that she refused to participate in telephone conferences with the Office and her rehab counselor, and that she was given another chance to cooperate but refused to participate in required math courses. The Board pointed out that evidence from all sources including her college instructors, college transcripts, her rehab counselor and the rehab specialist amply supported the claimant's non-cooperation, non-responsiveness, and non-participation with the goals of her vocational rehabilitation program.
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LOSS OF WAGE-EARNING CAPACITY (LWEC)
Robert Carlisle, Docket No. 97-1299, issued December 3,1998;
Paul Day, Docket No. 96-1888, issued October 8, 1998;
Shirley Murphy, Docket No. 95-2417, issued October 7, 1998;
Carla J. Hammond, Docket No. 97-78, issued December 7, 1998
In three of the above four compensation claims, the LWEC determination was reversed, and in the last the decision was set aside. In all four claims the Office was correct in its finding that the claimant was no longer totally disabled but could not return to the date-of-injury job. In Robert W. Carlisle the Board observed:
Once the medical evidence suggests that a claimant is no longer totally disabled but rather is partially disabled, the issue of wage-earning capacity arises... If an employee does not have any actual earnings, his or her wage-earning capacity is determined with due regard to the nature of the injury, the degree of physical impairment, the employee's usual employment, age, qualifications for other employment, the availability of suitable employment and other circumstances...
In all four of the above cases, the Board ruled that the Office failed to base its decision on a solid finding of suitability of the employment position selected for the LWEC rating. In Carlisle, the Office relied on the Rehabilitation Specialist's selection of the position of Shipmate without confirming the claimant's ability to perform the duties of the position. The Board pointed out that "the Office must consider not only physical limitations, but also education, age and prior experience." In this case the Board noted that the claimant did not have the vocational skills to competitively perform the selected position in the open labor market. In Paul Day the Office selected a position for rating based on a Rehabilitation Specialist's recommendation that had been made 4 years in the past, and on a second-opinion specialist's report that was internally contradictory. On reversing this decision, the Board found that the Office would have to refer the claimant to an appropriate physician to clarify his work restrictions, to determine whether the position of auto service station attendant would be available to him in view of his restrictions, and to verify that this position would still be available in the claimant's commuting area through the present time.
In Shirley Murphy, again, the Board found that the Office's error was in the selection of a position that was suitable employment for the claimant in view of her disability. The claimant had both physical and psychiatric diagnoses accepted by the Office as caused or aggravated by her employment injury. The Office reduced her benefits based on the selected position of full-time cashier. In noting the deficiencies in this decision, the Board pointed out that the Rehabilitation Specialist's recommendation was more than a year old, that the medical opinion which supported the job as suitable was 2½ years old, and that the report was not based on a complete and accurate history resulting in its being of diminished probative value. Furthermore, the Board noted that the duties of the position selected (cashier) were in direct contradiction to the claimant's psychiatric restrictions of no time pressures and no public contact.
In the Carla J. Hammond decision, the Office made a finding that the claimant's earnings in a light duty position with her original employer for 4 hours per day represented her wage-earning capacity. In setting this decision aside the Board referred to the Office's own procedures which provide as follows:
...Reemployment may not be considered suitable when: (1) the job is part-time (unless the claimant was a part-time worker at the time of injury) or sporadic; (2) the job is seasonal..., or (3) the job is temporary where the claimant's previous job was permanent.
The Board also noted that the Office failed to make any specific findings with regard to whether the actual earnings fairly and reasonably represented the claimant's wage-earning capacity. The case was therefore remanded for proper findings on the issues presented and an appropriate decision.
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LOSS OF WAGE-EARNING CAPACITY (LWEC) AFFIRMED
Elijah Small, Docket No. 96-2277, issued October 6, 1998; Gary Michael Connatser, Docket No. 96-2184, issued October 16, 1998
In Elijah Small, the Office relied on a vocational rehabilitation counselor's recommendation that the job of Security Guard was within the claimant's physical restrictions, that it was reasonably available within the commuting area and that the claimant was vocationally prepared for performing the duties. Once the Office issued its LWEC determination, the claimant requested a reconsideration, and in support of such request, submitted a medical report from his physician which was substantially the same as his previous report. The Board noted that the physician had previously approved the position of Optometry Clerk and felt that the duties of Security Guard exceeded those of the former position. However, the Board pointed out that the physician had not actually reviewed the duties of the Security Guard position, and that the physician, as before, indicated that the claimant could work within the restrictions provided in the functional capacity evaluation. As such, the Board noted that the new medical report was no more than a reiteration of the previous report and was not sufficient to require the Office to reconsider the merits of the claim.
In Connatser, the Office reduced benefits based on the claimant's ability to perform the duties of a Mechanical Engineering Technician. Vocational Rehabilitation services had been provided to the claimant for a period of five years at the time the determination was made. Additionally, the claimant received training and attended a community college with completion of an Associate of Science (A.S.) degree. He attended two additional years with a concentration in Biomedical Engineering, and he received job placement services for more than 3 months at the end of the vocational rehab process. However, even though the claimant received high scores on intelligence quotient (IQ) tests, between 110 and 138, he was academically unable to complete a Bachelor's Degree program at the university he attended for two years. The claimant's rehab counselor along with the Vocational Rehabilitation Specialist found the claimant vocationally qualified to perform the job of Mechanical Engineering Technician based on his 11 years as a metal fabricator/sheetmetal worker, his A.S. degree, and his two years of coursework at the university. Despite the claimant's assertions that he was unable to complete his Bachelor's Degree because of his being ill, due to not being given a tutor, and to a psychiatric condition alleged resulting from his accepted employment injury, and despite his obtaining a letter from the director of placement at the community college, the Board found that the Office's decision to reduce benefits was well supported by the evidence of record. The Board noted that the claimant had been given proper notice of the intention of the Office to reduce benefits and the opportunity to present evidence and argument in opposition to the reduction. The case record reflected that the claimant's arguments were given full consideration and that the Office sought clarification by writing to the community college placement director and speaking with him to evaluate his earlier statements. The Board concluded that in view of all the facts in this case the Office's finding that the position of mechanical engineering technician fairly and reasonably represented the claimant's wage-earning capacity should be affirmed.
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PAY RATE FOR COMPENSATION PURPOSES: LEARNER'S CAPACITY
David J. McDonald, Docket No. 96-1144, issued December 10, 98
The Board ruled that the claimant was not employed in a "learner's capacity" when injured such as to entitle him to additional compensation under 5 U.S.C. § 8113(a).
The claimant was a GS-9, step 3 Customs Inspector when he filed his compensation claim. The Office accepted temporary aggravation of his pre-existing heart condition, a subsequent myocardial infarction, angina episode, and further aggravation of the claimant's heart condition. The claimant later alleged that he was entitled to a higher rate of compensation because he had been employed in a learner's capacity at the time of his injuries within the meaning of 5 U.S.C. § 8113(a) which provides as follows:
If an individual – (1) was a minor or employed in a learner's capacity at the time of his injury; and (2) was not physically or mentally handicapped before the injury, the Secretary of Labor, on review under section 8128 of this title after the time the wage-earning capacity of the individual would probably have increased but for the injury, shall recompute prospectively the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to the probable increased wage-earning capacity.
The Office denied the claim for an increased pay rate on the grounds that the claimant was not employed in a learner's capacity at the time of his injuries so as to be entitled to additional compensation under § 8113(a) of the Act. On affirming the Office decision, the Board noted that the case record contained personnel documents indicating that the "full performance level" of the custom inspector's position was GS-9, and that the employing agency had described the status of the position as follows:
The full performance or journeyman level of (claimant's) position is GS-9 with no further promotion potential in the present position.
The Board's discussion also referred to other decisions in which the appropriate circumstances for finding an employee to have been in a learner's capacity within the meaning of the Act had been delineated, e.g., Carter C. Swinson, 10 ECAB 281; and James L. Parkes, 13 ECAB 515. In Swinson the job title of the position being considered was that of "helper-machinist trainee." The employing agency explained that the only formal training program for machinists was the apprenticeship program and that the claimant was not enrolled. The employer further stated that the job classification of 'helper-machinist' was not an "in-training" position, and that while some helpers were promoted to machinist based on demonstrated ability, the majority were not. The Board added that the designation of helper or of trainee is not sufficient to render the employee a "learner" within the meaning of the Act. It added that the title given to a job is not, of itself, determinative of this issue, nor is the fact that an employee was engaged in an unskilled job which may or may not lead to a semiskilled or skilled craft, bring him or her within the meaning of "learner" such as to afford coverage under the Act. Similarly, in Parkes, the claimant was not in a formal training program with a specified period for completion after which he would have moved to a higher grade. Parkes could have remained in the same position indefinitely, and if he was promoted, it would have been the result of his proven ability, experience, or other qualifications.
The Board pointed out that in the present case, as in Parkes, the claimant was not a participant in a formal training program in which, after a specified period for completion, he would have been automatically promoted to a higher grade. The employing agency stated that advancement from the customs inspector's position required either promotion through competition with other qualified individuals, or through "accretion of duties" which occurs when an employee performs duties above his or her grade level. The Appeals Board affirmed the decision that the claimant was not entitled to any increase in compensation payable as he was not found to have been in a "learner's capacity" within the meaning of the Act; and it held that the Office had not abused its discretion by refusing to reopen the case for consideration of the merits of the claim.
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Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-16 |
September 21, 1999 |
SUBJECT: Revised Form CA-1
Form CA-1 was revised to reflect the revision to the Federal Regulations that requires that work stoppage begin within 45 days of the date of injury (rather than the previous 90 days) in order for an employee to be eligible for Continuation of Pay. Some additional revisions are included for the sake of clarity.
Existing stock of CA-1s should be replaced with the revision because the regulatory change makes all existing versions inaccurate. A copy of the form, revised in April 1999, is attached. Supplies are now available in the warehouse and orders should be placed through regular channels. Any agency who produces their own CA-1 forms should make the revision immediately. You will know that the CA-1 available on the internet has been revised when it reflects a revision date of April 1999. This may be accessed at
http://www.dol.gov./dol/esa/public/regs/compliance/owcp/fecacont.htm
NANCY L. RICKER
Acting Director for
Federal Employees' Compensation
Distribution: List No. 1, Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
Back to Top of FECA Circular No. 99-16
Attention: This circular has been superseded and is inactive.
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FECA CIRCULAR NO. 99-17 |
September 21, 1999 |
SUBJECT: SELECTED ECAB DECISIONS FOR JANUARY – MARCH, 1999
The attached group of summaries of selected ECAB decisions is provided for study and filing by subject.
The subjects addressed include: dual benefits; overpayments; performance of duty; recurrence vs. new injury; refusal of suitable employment; rescinding acceptance of a claim; schedule award; terminating medical benefits; timeliness of request for reconsideration or hearing; wage-earning capacity-actual earnings; wage-earning capacity-constructed position; weighing medical evidence.
Nancy L. Ricker
Acting Director for
Federal Employees' Compensation
Distribution: List No. 1—Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)
DUAL BENEFITS - SEVERANCE PAY
William Taylor, Docket No. 97-1540, Issued February 1, 1999
In this case, the issue under consideration by the Board is whether the claimant is entitled to compensation for total temporary disability for the same period in which he received separation incentive pay. The claimant received continuation of pay from an accepted traumatic injury from January 14, 1994 through February 3, 1994. He then accepted voluntary separation incentive pay for a period of 30.82 weeks. The claimant filed an occupational disease claim, which was accepted, and a schedule award was paid on this claim for 144 weeks running from March 17, 1995 through December 18, 1997. The claimant requested compensation for total temporary disability for the period February 4, 1994 through March 16, 1995. By decision dated March 12, 1997, the Office found, among other things, that the claimant voluntarily retired from his job on February 3, 1994, that the personnel action showed that his reason for separation was to obtain retirement benefits, that he received separation incentive pay from his employer for 30.82 weeks and that the appellant was not entitled to any disability compensation for the period February 3, 1994 to September 6, 1994 because he received incentive pay for that period. The claimant argued that he was entitled to both the separation incentive pay and compensation for total temporary disability.
The Board noted that the claimant accepted a lump-sum payment of separation incentive pay upon voluntarily retiring form his employing agency. This separation incentive pay was remuneration from the United States in consideration of his voluntary retirement. This separation incentive pay, therefore, falls under both the category of "pay" and the category of "remuneration of any type" as specified in 5 U.S.C.§8116. Consequently, the Board held that the claimant was not entitled to compensation for wage loss during the period in which he received the separation incentive pay.
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OVERPAYMENT-ASSISTED RE-EMPLOYMENT
Michael K. Montgomery, Docket No. 97-2882, Issued March 10, 1999
There were two issues before the Board in this claim. However, the issue of interest pertains to the decision of whether the Office properly found an overpayment of compensation for the period January 25, 1995 to July 20, 1996. The injured worker was employed under the assisted re-employment program from January 27, 1995 to May 8, 1996. The injured worker's compensation was not reduced based on his actual wages during this period. The Office found that an overpayment existed because he was earning wages during the period in question and, therefore, was not entitled to total temporary disability. The injured worker argued that the time period during which he worked under the assisted re-employment program should not be considered in a calculation of his overpayment because it should be considered an authorized rehabilitation training program.
The Board held that, while the Federal Procedure Manual indicates an injured worker may receive benefits for temporary total disability while participating in an authorized rehabilitation program, there is no indication that the injured worker would be entitled to these benefits once he is employed. Thus, the Office properly determined that the injured worker was not entitled to total temporary disability during the period he was participating in the assisted re-employment program.
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PERFORMANCE OF DUTY - OFF PREMISES INJURY
Kurt A. Hickman, Docket No. 97-1042, Issued January 5, 1999
This claimant fell and broke his hip and injured his wrist on the way to work. On the date of injury, conditions were icy. The claimant telephoned his supervisor at work and told him that due to the ice, he could not get his car out of the driveway, and could not come in to work. The supervisor offered to give him a ride, and they arranged for the claimant to be picked up on the street corner. As the claimant was approaching the supervisor's vehicle, he slipped and fell approximately 20 feet from the vehicle.
The employer controverted the claim on the basis that the injury did not occur in the performance of duty. The Office denied the claim on the basis that the injury did not occur in the performance of duty. A hearing was requested, and the hearing representative affirmed the Office's decision.
The Board also affirmed the Office's decision. Injuries that occur off the premises while an employee is commuting to work are generally not compensable. The recognized exceptions to this general rule are: (1) where the employer requires the employee to travel on the highway; (2) where the employer contracts to and does furnish transportation to and from work; (3) where the employee is subject to emergency calls (as with firemen); and (4) where the employee uses the highway to do something incidental to his employment with the knowledge and approval of the employer.
None of these exceptions applied in this case. On the date of injury, the supervisor agreed to provide transportation as a courtesy. When transportation is directly provided by the employer, the vehicle in which transportation is provided is considered to be an extension of the premises, and therefore, an injury that takes place while riding in employer-provided transport occurs on the premises and is compensable. In this case, however, the claimant had not yet reached the "premises" (the supervisor's truck) when he was injured.
The proximity rule was also not applicable since he was on a public street when injured, and not near his workplace.
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RECURRENCE IN OCCUPATIONAL DISEASE CLAIM - NEW INJURY
Tyrone E. Murray, Docket No. 96-613, Issued January 29, 1999
The Office accepted that the claimant, a modified distribution clerk, sustained de Quervain's tendinitis of the right wrist, right lateral epicondylitis, and subacromial bursitis of the right shoulder due to his job duties. He received compensation for intermittent periods of total disability until July 2, 1994, when he returned to work filing mail.
The claimant filed a claim for recurrence of disability as of April 7, 1995. He stated that after he returned to work, he developed problems with his left hand, wrist, and shoulder from filing mail, and when he started to use his right hand, wrist, elbow and shoulder, they began to fail. He did not stop working until July 5, when he stopped working for reasons other than his right hand, wrist, elbow, and shoulder problems.
The Office denied the claim for recurrence, and found that both the claimant and his physician described a new injury, rather than a recurrence. The claimant was advised to file a new Form CA-2. A subsequent reconsideration request was denied.
The Board affirmed the Office's decision, finding:
If the appellant's claim for a recurrence of disability is actually, as indicated by his ... letter, a claim that his employment duties since his return to work on July 5, 1994 caused a left arm condition and a worsening of his right arm condition, the Office was correct in informing him that this was a new injury and not a recurrence of disability related to his prior accepted condition. The Office should have adjudicated this claim for a new injury, as there is no requirement that a claim be filed on an Office form, but, as it did not do so, the Board cannot review this aspect of appellant's case on appeal.
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REFUSAL TO ACCEPT SUITABLE EMPLOYMENT - CONDITIONS SUBSEQUENT TO INJURY
Robert Steele, Docket No. 97-441, Issued January 4, 1999
The claimant in this decision was a distribution clerk who sustained a work-related herniated lumbar disc. His treating physician provided a work capacity evaluation which indicated he could work eight hours per day with restrictions. On March 5, 1996 his employer offered him a limited-duty job. On March 6, 1996, the Office informed him that the job was suitable, that refusal of suitable work would be a basis for termination of compensation, and that he had 30 days to accept the position or give reasons for refusing it. On March 7, 1996, the claimant rejected the job offer, stating that he did not get along with the postmaster, and that he was physically unable to work. On April 16, 1996, the Office informed the claimant that his reasons for rejecting the job offer were unacceptable, and he was given an additional 15 days to accept the job offer. On April 23, 1996, the claimant's wife advised the Office that the claimant could not work because he was hospitalized. On May 26, 1996, the Office suspended compensation due to his refusal of suitable work.
The claimant requested reconsideration on August 6, 1996, and submitted reports from a psychiatrist which indicated that he had been hospitalized for bipolar disorder, and that medication and further inpatient care was recommended. The Office issued a decision terminating compensation on August 20, 1996.
In reversing the Office's decision, the Board cited Chapter 2.814.4(b)(4) of the Federal (FECA) Procedure Manual, which provides that if medical reports document a medical condition which arose after a work injury, and which disables the claimant for the offered job, the job will be considered unsuitable. The Office did not consider the medical evidence from the claimant's psychiatrist prior to terminating compensation. The Board remanded the case for consideration of the medical evidence.
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REFUSAL OF SUITABLE EMPLOYMENT - REFUSAL PRIOR TO SUITABILITY DETERMINATION
Migdalia Tirado, Docket No. 96-2303, Issued March 25, 1999
In this case, benefits were terminated by the Office under Section 8106(c)(2) on the grounds that the claimant refused an offer of suitable employment. On July 7, 1995 the employing agency offered the claimant a position as a modified distribution clerk. On July 20, 1995 the claimant refused the job offer on the grounds that the position required eight hours of standing. On July 28, 1995 the Office informed the claimant that this position was found suitable, was currently available and that the claimant had 30 days in which to accept the position or provide an explanation of her reasons for refusing it. No other reasons for refusal were received from the claimant. Therefore, on September 8, 1995, the Office terminated the claimant's compensation on the grounds that she had refused an offer of suitable work. for a hearing.
The Board found that the Office had improperly terminated the claimant's compensation benefits on the grounds that she had refused an offer of suitable employment. The Board held that the claimant offered her reasons for refusal on July 20, 1995 and the July 28, 1995 notice of suitability from the Office constituted only a preliminary determination. Once the Office finalized its determination of suitability, which was done in its September 8, 1995 decision, it did not provide the claimant with an opportunity to accept the position offered because the Office terminated her compensation at the same time.
Even though the claimant offered her reasons for refusal prior to the Office making a preliminary determination of suitability, i.e. the July 28, 1995 letter, the Office was still obligated to advise the claimant that her reasons for refusal were not deemed justified after finalizing the decision on the suitability of the job and to provide her with an opportunity to accept the job without penalty.
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REFUSAL OF SUITABLE EMPLOYMENT-TEMPORARY EMPLOYMENT
Lethia M. Rollins, Docket No. 97-1759, Issued March 17, 1999
In this case, benefits were terminated by the Office under Section 8106(c)(2) on the grounds that the claimant refused an offer of suitable employment. On August 24, 1994 the employing agency offered the claimant a limited-duty position. On March 27, 1995 the Office informed the claimant that this position was found suitable based on a second opinion evaluation. On July 12, 1995, the Office terminated the claimant's compensation on the grounds that she had refused an offer of suitable work. The case was initially remanded by a hearing representative on the grounds that the limited duty job was temporary based on contact with the employing agency. The Office contacted the employing agency for clarification of the status of the offered limited duty position and, based on the response, again terminated the claimant's compensation.
The employing agency stated that the word "temporary" was used by the employing agency to distinguish between a limited duty job offer and a rehabilitation job offer. They further indicated that they had abandoned that practice at the request of this Office because it was confusing. However, the job was not temporary.
The Board held that, as the limited duty job offer was not temporary in nature, the Office properly terminated the claimant's compensation for failure to accept a suitable job offer.
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RESCINDING ACCEPTANCE OF A CLAIM
Noah Ooten, Docket No. 96-1405, Issued March 12, 1999
In this case, the issue under consideration by the Board is whether the Office met its burden of proof to rescind acceptance of a claim for pneumoconiosis.
An occupational disease claim was filed alleging that the claimant developed coal workers' pneumoconiosis due to exposure to coal dust during his federal employment.
The Office arranged for him to be examined by an independent second opinion specialist. In a report dated April 12, 1994, the physician noted that chest x-rays read in the past noted interstitial changes compatible with pneumoconiosis and that the claimant had a 37-year history of mine work. He provided a diagnosis of coal workers' pneumoconiosis secondary to his federal employment. By letters dated April 25 and May 25, 1994 the Office requested the second opinion specialist to submit the results of current chest x-rays, as interpreted by a certified "B" reader, together with pulmonary function studies. In a June 8, 1994 report, x-rays taken on June 7, 1994 were read as revealing diffuse chronic interstitial lung disease consistent with coal worker's pneumoconiosis, type q/t, profusion of 1/1 affecting all six lung zones.
By letter dated November 16, 1994, the Office advised the claimant that his claim had been accepted for pneumoconiosis. The Office then processed his claim for a schedule award.
On August 21, 1995 the Office medical advisor noted that the second opinion physician did not submit the graphic results of any pulmonary function studies and noted that the record did not indicate whether the June 7, 1994 x-rays were reviewed by a certified "B" reader. Upon receipt of the pulmonary function studies and verification that the x-ray reviewer was a certified "B" reader, the Office medical advisor again reviewed the case and noted that the second opinion physician had indicated that the studies were effort dependent and were not representative of the claimant's best capabilities. The Office medical advisor further noted that the claimant made an erratic effort and showed poor cooperation with the testing process.
On September 15, 1995, the Office referred the claimant to a Board-certified pulmonary specialist and certified "B" reader. He opined that he saw no evidence of pneumoconiosis. He noted that the claimant's cooperation with the pulmonary testing was good and that his respiratory capacity was adequate to perform his previous occupation in the coal mining industry.
The Office found a conflict of medical opinion existed between the first independent medical examiner and the second independent medical examiner and referred the claimant for an impartial medical examination. By report dated February 9, 1996, this physician opined that the x-rays did not reveal a significant pulmonary condition or any evidence of occupational pneumoconiosis.
By decision dated March 6, 1996, the Office rescinded its acceptance of the claim for pneumoconiosis and terminated compensation benefits.
The Board upheld the Office's decision noting that the Office had the authority to reopen a claim at any time on its own motion under section 8128(a) of the FECA and, where supported by the evidence, set aside or modify a prior decision and issue a new decision. The Board noted that, as always, the Office must justify rescission of acceptance of a claim by showing that it based its decision on new evidence, legal argument and/or rationale.
The Board noted that the Office was incorrect in determining that a conflict of medical opinion existed as both opinions were from Office referral physicians. However, the weight of the medical evidence rested with the final physician's opinion. The Board further noted that the Office had submitted new medical evidence addressing the relevant medical issue and, based on the weight of the medical evidence, properly reopened the claim and rescinded the acceptance of employment-related pneumoconiosis.
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SCHEDULE AWARD - USE OF THE A.M.A. GUIDES
George H. Alexander, Docket No. 97-597, Issued January 5, 1999
The claimant's left foot and ankle injury on May 31, 1977 was accepted for left ankle sprain, and arthroscopy and meniscectomy of the left knee. On October 9, 1979, the Office made a schedule award for 65 percent permanent impairment of the left lower extremity. In 1993, the claimant submitted a medical report in support of a request for an increase in the schedule award. Based on that report and a review by the Office medical advisor, the Office determined that there was no increased schedule award.
The claimant again requested an increase in his award in 1994. He was advised to arrange for his physician to evaluate his impairment in accordance with the third edition of the A.M.A. Guides. A report was submitted which indicated that the claimant had 78 percent impairment of the left leg, based on the third edition of the Guides, and also requested authorization for an arthroscopy. Arthroscopy was authorized, and after surgery, the attending physician submitted another report. The report was reviewed by the Office medical advisor, who found a 73 percent impairment of the left lower extremity, based on the fourth edition of the A.M.A. Guides.
The Office subsequently asked the Office Medical Advisor to evaluate permanent impairment in accordance with the first edition of the A.M.A. Guides, stating that when a claimant seeks an increased award due to further deterioration without additional work exposure or injury, the edition of the A.M.A. Guides used should be the same as was used for the original award. The medical advisor found that there was 49 percent loss of use of the left lower extremity, in accordance with the first edition of the Guides. The Office issued a decision stating that the claimant was not entitled to an additional award. This decision was affirmed by a hearing representative and by reconsideration.
The Board also affirmed the decision, stating that the Office medical advisor properly applied the first edition of the Guides.
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SCHEDULE AWARD FOR LUNGS - DATE OF INJURY PRIOR TO 1974
Johnnie Wilkins, Docket No. 97-241, Issued January 15, 1999
The Office accepted that the claimant contracted tuberculosis in 1965 due to exposure to a coworker. The last exposure occurred in 1965. He developed tuberculous bronchiectosis in 1993, consequential to his accepted tuberculosis.
In 1993, the claimant requested a schedule award for the lungs. The Office denied his claim on the basis that his exposure to the contributing work factors ceased prior to the 1974 amendments to the FECA, and no award for lungs was provided under the Act until the 1974 amendments.
The Board affirmed the Office's decision. The claimant argued that his permanent impairment was due to the consequential condition, and that since the consequential condition developed after the 1974 amendments, he should be eligible for a schedule award. However, the Board found that the original date of injury (which was 1965), not the date of the consequential injury, must be used to determine eligibility for the schedule award. Because the Act did not provide a schedule award for the lungs prior to 1974, the claimant was not entitled to such an award.
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TERMINATING MEDICAL BENEFITS
Thomas A. Fekete, Docket No. 97-1279, Issued March 24, 1999
In this case, the issues under consideration by the Board are whether the claimant established a recurrence of disability and whether the Office met its burden of proof in terminating the claimant's medical benefits. The interesting decision in this case pertains to the termination of the claimant's medical benefits.
By decision dated September 5, 1996, the Office determined that the claimant had not established a recurrence of disability and that the claimant did not have continuing residuals of his employment injury. By decision dated November 18, 1996 this decision was modified to reflect entitlement to medical benefits through September 5, 1996 because he had received a letter from another district office advising him that his case was still open for medical treatment.
The Board upheld both decisions. With respect to the issue of continuing residuals the Board noted that there was no probative medical evidence indicating a continuing cervical or shoulder strain (the accepted medical conditions). A medical report from September 7, 1994 provided a diagnosis of minimal disc bulge at C6-7 but made no reference to a cervical or shoulder strain. There was no medical evidence after that until early 1996. A medical report from May, 1996 noted a spondylotic spur with a small herniated disc at C6-7. The neurosurgeon noted that this condition could have been aggravated by the work incident. However, as the conditions of spondylotic spur and herniated disc were not accepted as related to the work injury, it is the claimant's burden to prove that they were. The neurosurgeon's report is not sufficient to discharge that burden.
As there was no medical evidence indicating a continuation of the accepted medical conditions, the Board affirmed the Office's decision to terminate medical benefits.
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TIMELINESS OF REQUEST FOR RECONSIDERATION OR HEARING
Benito A Perez, Docket No. 97-887, Issued January 7, 1999
Patricia A. Ingold, Docket No. 97-236, Issued January 4, 1999
Both of these decisions involve situations in which the claimant pursued appeal rights, the Office found that the request was not timely, and the Board set aside the Office's decision.
In Perez, the claim was originally denied on October 18, 1995. By fax on November 6, 1996, the Office received a copy of a request for reconsideration dated October 1, 1996. Along with the fax, the Office also received a copy of a receipt for certified mail, addressed to the Office, dated October 3, 1996. The Office denied reconsideration on November 15, 1996 as untimely, and lacking clear evidence of error.
The original letter dated October 1, 1996 was not found in the case file, nor was the envelope in which it was mailed. The Office did not consider whether the October 3, 1996 certified mail receipt was proof of timely filing for reconsideration, and the Board remanded the case.
In Ingold, the Office issued a denial decision on March 11, 1996. The claimant requested a hearing by letter dated April 10, 1996. The letter was not date stamped, and the envelope in which the letter was sent had not been retained in the file. The Office denied the request for hearing as untimely, stating that the request was postmarked April 11, 1996, which was more than 30 days after the March 11, 1996 decision.
The Board set aside the Office's decision, and directed the Office to produce evidence of the postmark date of the claimant's request. If the postmark could not be found, the request for a hearing would be considered timely.
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WAGE EARING CAPACITY- ACTUAL EARNINGS
Thomas M. Demgen, Docket No. 96-2254, Issued February 9, 1999
In this case, the issue under consideration by the Board was whether the Office properly determined the claimant's wage earning capacity based on his employment as an industrial trainee. The claimant accepted the position of industrial trainee with his employing agency effective August 23, 1991 with retained pay. The job description for industrial trainee noted that the position was part of a FECA Development Program and consisted of assessment, career counseling, training/retraining, out placement counseling and ultimate placement into a career at the end of the program. The training program was slated to last from one month to two years. By decision dated June 29, 1995, the Office determined that the claimant's re-employment as an industrial trainee fairly and reasonably represented his wage earning capacity and that his compensation would be terminated since his actual wages met or exceeded the wages of the position held when injured.
The Board held that the Office improperly determined the claimant's wage earning capacity based upon his actual earnings as an industrial trainee. The Board noted that the Office's policy of determining that actual earnings represent a claimant's wage earning capacity can be invoked only in the absence of contrary evidence. In this case, the Board held that the evidence of record clearly indicated that the position of industrial trainee was temporary in nature because the job offer specifically stated the position would last from one month to two years. The fact that the job actually lasted well over two years did not alter the temporary nature of the position. Thus, the position of industrial trainee could not be considered suitable. The Office's decision on wage earning capacity was reversed.
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WAGE EARNING CAPACITY-CONSTRUCTED POSITION
Diane M. Hackney, Docket No. 96-1078, Issued March 19, 1999
There were two issues before the Board in this claim. However, the issue of interest pertains to the decision on wage earning capacity. Compensation was reduced effective December 12, 1977 based on the Office's determination that the constructed position of general clerk constituted the injured worker's wage-earning capacity. That decision was subsequently vacated and a new constructed position of telephone solicitor was found to constitute her wage-earning capacity, again effective December 11, 1977. This decision was issued on October 17, 1983. The injured worker returned to work with her employing agency in a light duty capacity effective February 21, 1984 and again stopped work effective August 9, 1994 claiming that her current condition was a consequence of the May 21, 1975 work injury. By decision dated June 5, 1995, that claim was denied. Pursuant to the injured worker's request for reconsideration, the Office issued a decision on September 19, 1995 which modified the previous decision to the extent that the condition of agoraphobia was accepted as related to the May 21, 1975 work injury but that this condition had ceased on July 21, 1984.
The injured worker again requested reconsideration contending that, because agoraphobia was now an accepted condition, the wage-earning capacity decision was in error. By decision dated January 25, 1996, the Office denied modification of the prior decision.
The Board held that the Office failed to determine if the injured worker was capable of performing the duties of a telephone solicitor once they accepted the additional medical condition of agoraphobia. The claim was remanded for further evaluation of the evidence of record to determine whether the wage-earning capacity was in error and should be modified.
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WEIGHING MEDICAL EVIDENCE
James Digiantommaso, Docket No. 97-1326, Issued March 24, 1999
In this case, the issue under consideration by the Board is whether the Office met its burden of proof in terminating the claimant's compensation. In determining the weight of the medical evidence, the Office relied on the medical opinion of an impartial medical examiner. The IME report indicated agreement with the opinions of the second opinion examiner but did not provide his reasons for doing so.
The Board held that, because the impartial medical examiner merely agreed with the opinions of the second opinion examiner without providing his own supporting rationale, his report was of diminished probative value and could not constitute a well-reasoned medical report. The Office's decision was, therefore, reversed.
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