7/31/2012

7/31/2012
Danna Corbell
Program Analyst (VACO)
Office of Occupational Safety and Health
1
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Discuss the basis for challenge and how to
determine if the entire claim or a portion of
the claim should be challenged
Identify when to controvert and when to
challenge
Describe the five basic conditions of coverage
Examine the situations that make a claim
questionable
Discuss the evidence to support an agency
challenge
2
The FECA provides compensation benefits to civilian
employee of the United States for disability due to
personal injury or disease sustained while in the
performance of duty. The FECA is intended to be
remedial in nature
nature, and proceedings under it are
non-adversarial.
We recognize that the vast majority of claims are
legitimate and believe those claimants should be
assisted to improve their health and resume a full
and productive life.
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The fact that the OWCP process is designed
to be non-adversarial does not mean that the
agency has no right to dispute workers’
compensation claims that it believes to be
unwarranted.
unwarranted
The need to assist injured workers and their
supervisors is balanced by the need to
protect the agency and the federal workers’
compensation process.
4
•Hogan V. Army (EEOC No 01975337)
An agency has a right to represent its position and
interest in the OWCP forum and EEOC will not
review decisions which require judgment of the
merits of the OWCP claim.
•Andel v. U.S.P.S. (EEOC No. 01975337)
An agency has an obligation to controvert an
employee’s workers’ compensation claim.
Controversion of the claim does not affect a term,
condition of employment. Adel alleged the agency
provided false information to OWCP. EEOC ruled
this was a collateral attack on the workers’
compensation claim processing.
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 OWCP will accept the employee’s statement as
factual unless agency provides refuting
evidence
 The agency does not have post adjudicative
appeal rights
 The agency has a vested interest in ensuring
that only legitimate claims are accepted by
OWCP
 The agency ultimately bears the financial
burden because it must reimburse the Office
for claims paid. 5 USC δ 8147(b).
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20 CFR 10.117 (a)
An employer who has reason to disagree with
any aspect of the claimant's report shall
submit a statement to OWCP that specifically
describes the factual allegation or argument
with which it disagrees and provide evidence
or argument to support its position. The
employer may include supporting documents
such as witness statements, medical reports
or records, or any other relevant information.
7
20 CFR 10.118 (a)
The employer is responsible for submitting
to OWCP all relevant and probative factual
and medical evidence in its p
possession,, or
which it may acquire through investigation
or other means. Such evidence may be
submitted at any time.
8
20 CFR δ 10.118(b)
The employer may ascertain the events
surrounding an injury and the extent of
disability where it appears that an employee
who alleges total disability may be performing
other work, or may be engaging in activities
which would indicate less than total disability.
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Initial submission of a CA-1, CA-2, CA-2a or
CA-7
In response to OWCP correspondence such as
development letters
In the agency rebuttal to a hearing transcript
If there is a valid reason to question or dispute a claim,
do so at the time the claim is submitted or as soon as
possible thereafter.
10
“Challenging” a claim and “Controverting” a
claim are not the same thing.
h ll
” the
h merits off a claim
l
d
You ““challenge”
and
“controvert” continuation of pay (COP).
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An agency’s objection to paying COP for one
of the reasons provided by regulation is
called controversion. The supervisor may
controvert a claim by completing the
indicated portion of Form CA-1 and
submitting detailed supporting information to
OWCP.
Even though a claim is controverted, the
agency must continue the employee’s regular
pay unless at least one of the following
conditions applies:
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1.
2.
3.
4.
5.
The disability is a result of an occupational
disease or illness
The employee is excluded by 5 USC 8101 (1) B or
E. This section of the law deals mostly with
volunteers (unpaid) to the federal government.
The employee is neither a citizen nor a resident
off the
or Canada.
h United
U i d States
S
C
d
The injury occurred off the employing agency’s
premises and the employee was not involved in
official “off premises duties”.
The injury was caused by the employee’s willful
misconduct, intent to bring about injury or death
to self or another person, or was proximately
caused by employee’s intoxication.
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6.
7.
8.
9.
The injury was not reported within 30 days
following the injury.
Work stoppage first occurred more than 45 days
following the injury.
The employee initially reports the injury after his
or her employment
p y
has been terminated.
The employee is enrolled in the Civil Air Patrol,
Peace Corps, Job Corps, Youth Conservation
Corps, Work Study Programs or other similar
group.
*The authority to determine any aspect of a claim rests with OWCP.
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The agency may dispute an employee’s right to receive COP,
and/or the validity of the claim as a whole, on other grounds,
for instance on the basis that the employee was not
performing assigned duties when the injury occurred or that
the condition claimed is not the result of a work-related
injury.
Any such objection should be supported by factual evidence
such as witness statements, pictures, accident investigation
reports, or time sheets. If the validity of a claim is disputed
for reasons other than the nine listed above, the agency must
continue regular pay for up to 45 calendar days.
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Time
Civilian employee
 Fact of injury
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◦ Occurrence of an event
◦ Diagnosed Medical Condition
Performance of duty
 Causal Relationship
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Each claim for compensation must meet
certain requirements before it can be
accepted. This is true whether the claim is
for traumatic injury, occupational disease or
death While the requirements are
death.
addressed somewhat differently according
to the type of claim, they are always
considered in the same order.
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Claims must be filed within 30 days for
continuation of pay entitlement and within
three (3) years of the date of injury.
May still be allowed if written notice was
given
Immediate supervisor had actual knowledge
of the injury or death within 30 days
◦ written records or verbal notification
◦ entry into an employee’s medical record
◦ sufficient to put the agency on notice of a workrelated injury or illness
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Must be an employee of the U. S. as defined in 5 U.
S. C. 8101(1) and 20 CFR 10.5(h).
Federal civilian employees, Peace Corps and VISTA
volunteers, Federal petit and grand jurors,
volunteer members of Civil Air Patrol, Reserve
Officer Training Corps Cadets; Job Corps and Youth
Conservation Corps enrollees; and non-Federal law
enforcement officers under certain circumstances.
Contract, volunteer and loaned employees may be
covered under certain circumstances but these are
considered on a case-by-case basis ONCE a claim
is filed.
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Occurrence of Event
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Diagnosed Medical Condition
◦ Did the accident or employment factor
result in a diagnosed injury or
illness/disease.
◦ Did the employee actually experienced the
accident, event, or employment factor
and
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Whether the employee actually experienced
the event or employment factor
◦ on the basis of factual evidence
◦ including statements from the employee,
p
and witnesses.
supervisor,
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Injury does not have to be witnessed to be
compensable
The supervisor who doubts the validity of a
claim should conduct an investigation and
provide factual evidence to support the
agency’s position.
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Whether the accident or employment factor
resulted in an injury or disease. This is
determined on the basis of the attending
physician’s statement that a medical
condition is present that could be related to
the incident, though the medical report need
not relate the condition to the incident.
*Simple exposure, for instance to a
contagious condition or dusty environment
does not constitute an injury.
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If the first three criteria have been met, it must be
determined whether the employee was in the
performance of duty when the injury occurred.
In general, an injury must occur: (1) at a time when
the
h employee
l
may reasonably
bl b
be said
d to b
be
engaged in his masters' business; (2) at a place
where he or she may reasonably be expected to be
in connection with the employment; and (3) while
reasonably fulfilling the duties of employment or
engaged in doing something incidental thereto.
Carmen B. Gutierrez, 7 ECAB 58, 59 (1954)
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Agency Premises
◦ During working hours or during a reasonable
time before or after the work shift (usually 30
minutes)
◦ Performing assigned duties
◦ Breaks and lunch time on the premises
◦ Personal acts for the employee’s comfort
◦ Parking areas if Federally owned or maintained
◦ Representational Functions (when entitled to
official time)
◦ Agency Housing
 Bunk-house Rule
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Off-Premises Injuries
◦ To and from work-generally not covered unless:
 Employees sent on special missions or errand
 Agency furnishes transportation
◦ Lunch Hour
 Not covered
d unless
l
in a travell status or performing
f
regular duties off premises
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Approved Travel Status
◦ 24 hours per day for all reasonable incidents
◦ Deviations for personal reasons are not covered
 Sightseeing tour-not covered
 Fall at hotel-covered
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An injury is not compensable when it occurs
during an activity unrelated to work.
Although a worker is covered 24 hours a day
while traveling for work, an injury still may be
deemed out of the scope of employment
when the worker deviates from the purpose
of the work travel to participate in a personal
mission.
Mohsen Payombari, 53 ECAB 788 (ECAB
2002).
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Recreation
◦ Formal recreation for which employee is paid or required to
participate as part of assigned duties
◦ Employer sponsored event
◦ Jogging on agency premises
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Horseplay
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Assault
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Emergencies
◦ Activity reasonably expected in a group
◦ Arose out of an activity related to work or environment
◦ Employee momentarily steps outside of POD to assist in an
emergency such as to extinguish a fire or help an injured
person
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Workers Who Perform Service at Home
(1) Ordinarily, the protection of the FECA does
not extend to the employee's home, but there
is an exception when the injury is sustained
while the employee is performing official
duties. In situations of this sort, the critical
problem is to ascertain whether at the time of
injury the employee was in fact doing
something for the employer.
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Compensable
◦ Found to be in the
performance of duty
◦ Result of regularly
assigned duties
◦ Harassment
◦ Erroneous
administrative or
personnel actions
◦ Threats of physical
harm
◦ Overwork
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Not Compensable
◦ Emotional reactions
to performance
ratings/reassignment
◦ Other administrative
actions of the agency
minus error or abuse
◦ Conditions which are
found to be self
generated or mere
perceptions
◦ Reductions in Force
(RIF)
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There are injuries that occur in the
performance of the employment and which
have some kind of causal connection with it
but nevertheless are not covered because
they are found not to have arisen out of the
employment. A disabling condition resulting
from an employee's feeling of job insecurity
per se is not sufficient to constitute a
personal injury sustained while in the
performance of duty. Katherine W. Brown, 10
ECAB 618 (1959).
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Do the “Right Thing”
◦ Review the claim for information and/or medical
documentation to determine if the employee is off
work
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Communicate with the Employee
◦ Provide information on the claim adjudication
process and usual time frames
◦ Discuss potential financial burden if employee does
not have sufficient leave to cover long absences
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Fall which may have been caused by a
personal and non-occupational pathology,
such as a myocardial infarction, fainting spell,
or epileptic seizure.
If some factor of the employment intervened
or contributed to the injury resulting from the
fall, the employee has coverage under the
FECA for the results of the injury but not for
the idiopathic condition which caused the fall.
A fall simply unexplained is compensable if it
occurred in the performance of duty.
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Whether a fall at work is idiopathic or unexplained
will usually be determined on the basis of the
medical evidence. If the medical evidence shows
that the employee's fall was caused by a nonp
,p
gp
y
preexisting
physical
condition,, it is
occupational,
idiopathic and not compensable. Absent such
evidence, the fall is unexplained and compensable.
Gertrude E. Evans, 26 ECAB 195
Martha G. List, 26 ECAB 200
Margreate Lublin, 44 ECAB 945 (1993)
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After the four factors described above have been
considered, causal relationship between the
condition claimed and the injury or disease
sustained is examined. Unlike fact of injury, which
is discussed which involves the determination that
a medical condition is present, causal relationship
involves establishment of a connection between the
injury and the condition found. This factor is based
entirely on medical evidence provided by
physicians who have examined and treated the
employee. Opinions of the employee, supervisor or
witness are not considered, nor is general medical
information contained in published articles.
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Direct Causation
◦ injury, through a natural and unbroken sequence, result in
the condition claimed
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Aggravation
◦ Pre-existing condition is worsened by a work injury
 Temporarily or permanently
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Acceleration
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Precipitation
◦ Hastened the development of an underlying condition
◦ A latent condition that would not have manifested itself but
for the employment
 Latent TB precipitated by work-related exposure
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The issue of causal relationship almost always
requires reasoned medical opinion for resolution.
◦ From a physician who has examined or treated
the employee for the condition claimed
◦ Physician must provide rationalized medical
opinion which
h h differentiates
d ff
the
h effects
ff
off the
h
employment-related injury or disease from the
pre-existing condition.
◦ Temporary vs. permanent aggravation
◦ See 20 CFR 10.330
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◦ (a) Dates of examination and
treatment;
◦ (b) History given by the
employee;
◦ (c) Physical findings;
◦ (d) Results of diagnostic
tests;
◦ (e) Diagnosis;
◦ (f) Course of treatment;
◦ (g) A description of any
other conditions found but
not due to the claimed
injury;
◦ (h) The treatment given or
recommended for the
claimed injury;
◦ (i) The physician's opinion,
with medical reasons, as to
causal relationship between
the diagnosed condition(s)
and the factors or conditions
of the employment;
◦ (j) The extent of disability
affecting
the
ff i
h employee's
l
'
ability to work due to the
injury;
◦ (k) The prognosis for
recovery; and
◦ (l) All other material
findings.
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Willful Misconduct
◦ violation of a safety rule
 simple negligent disregard/not sufficient
 deliberate and intentional
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Intoxication
◦ alcohol/drugs
◦ extent of intoxication
◦ proximate cause/manner in which intoxication
caused the injury
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Any finding that one of these factors applies
to a claim constitutes an affirmative defense
which must be considered at the same time
the five basic requirements are examined, as
the ECAB has stated that an affirmative
defense cannot be raised for the first time on
appeal (see Hope Kahler, 39 ECAB 588).
*FECA PM Chapter 2-0800-13
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Differing Versions
◦ Employee has given different versions of injury to
different people
 Medical reports-different version to physician
 Statement on CA form
◦ Witnesses give differing accounts of facts
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Previous Injury
◦ Reports to work on date of claimed injury with the
appearance of an injury
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Time Lags
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Other Employment
◦ Delayed reporting of injury/seeking medical care
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Pending or proposed corrective or disciplinary
action
Pending change or nearing end of
employment
Disgruntled employee
Abuse of sick leave, zero or low sick/annual
leave balance
History of multiple Claims
No Health Insurance Coverage
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If the supervisor questions the validity of a claim,
he/she should investigate the circumstances and
make a full report to OWCP through the facility
Worker’s Compensation Specialist
g
must be supported
pp
by
y specific
p
◦ All allegations
factual evidence
 Credible witness statements
 Time cards
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◦ Re: Fact of Injury
 Did the accident actually occur?
 Did the event occur as reported?
p
 Did the event result in an injury or
disease?
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◦ Re: Performance of Duty
 Was the event outside working hours?
 Did it occur off premises?
 Did the injury occur as part of a
recreational activity?
 Was there horseplay involved?
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◦ Re: Causal Relationship
 Is there a relationship between the
condition claimed and the injury?
◦ Re: Statutory Exclusion
 Willful misconduct?
 Alcohol or drug impairment involved?
 Intent to injure self or others?
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Employee Compensation Appeals Board
(ECAB) Decisions
FECA Procedure Manual-Chapter 2
◦ Helps you determine how OWCP will develop the
claim
◦ Helps you develop the agency’s position
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Code of Federal Regulations 20 CFR Part 10
Cyberfeds
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Length - Keep position papers to one (1)
page if possible
◦ Helps keep audience attention
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Present facts:
◦ Tell the story in chronologic order
◦ Submit witness statements and/or factual
evidence
Don’t use excessive words just to sound
complicated, technical or knowledgeable
Exclude personal, cultural and political view
points.
Have someone else proof read your paper
Do not request OWCP to deny the claim
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Any determination that sets forth OWCP’s finding
in the case and includes a description of the
employee’s appeal rights is known as a formal
decision.
OWCP reaches a formal decision whenever it
reaches an adverse decision about entitlement,
such as denial of a claim or continuing benefits.
Three avenues of appeal
◦ Oral hearing
◦ Reconsideration
◦ ECAB
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http://www.dol.gov/owcp/dfec/
20 CFR Part 10
FECA Procedure Manual Part 2
Decisions of the ECAB
P bli i
CA
810
Publication
CA-810
Cyberfeds
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Danna Corbell
Program Analyst (VACO)
danna.corbell@va.gov
d
b ll@
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