WORKERS COMPENSATION

1
47th Navy Occupational Health Preventive
Medicine Conference
Gold Nuggets Of Medical Issues
March 19, 2008
David L. Hull, MBA Program Manager Federal
Workers Compensation Program U.S. Department of
Veterans Affairs
2
Course Title 47th Navy Occupational Health
Preventive Medicine Conference Gold Nuggets of
Medical IssuesTarget Audience Conference
Attendees

• Understand the various laws and regulations
  involved in medical issues concerning Federal
  employees
• Differentiate between the issues in various cases
  to select the appropriate rules to follow
• Effectively utilize the Agency Medical Exam
  process to obtain objective medical information
  upon which an informed employment decision may be
  based

3
Identify the right rules

• Is the medical condition work-related or
  non-work-related?
• Is the medical condition temporary or permanent?
• Does the medical condition define the employee as
  a qualified handicapped employee under the
  Americans With Disabilities Act (ADA)?
• Does the employee's position have properly
  established medical qualifications or physical
  requirements?

4
Identify the right rules

• 1. Is the medical condition work-related or
  non-work-related?
• Work-related injuries are covered by the Federal
  Employees Compensation Act (FECA) and the rules
  to follow are found in 20 CFR Part 10. It does
  not matter if the HR Specialist, supervisor or
  manager feels like the condition is NOT
  work-related, these rules must be followed if the
  employee CLAIMS the condition is work-related.
  The Office of Workers Compensation Programs, U.S.
  Department of Labor, will make all decisions
  regarding claims of work-related medical
  conditions.

5
Identify the right rules

• 2. Is the medical condition temporary or
  permanent?
• Individual agency policies, Federal regulations
  (5 CFR 630) and Bargaining Unit Agreements cover
  temporary, non-work-related medical conditions,
  where the employee wants to use accrued sick or
  annual leave.
• Permanent non-work-related medical conditions,
  where the employee requires extensive time off
  work to recover from a serious injury or illness
  for themselves or their family are covered by the
  Family and Medical Leave Act (FMLA). These rules
  are also found in 5 CFR 630.

6
Identify the right rules

• 3. Does the medical condition define the
  employee as a qualified handicapped employee
  under the Americans With Disabilities Act (ADA)?
• Permanent non-work-related medical conditions,
  where the employee requires modification of their
  job to accommodate a significant disability is
  covered by the Americans With Disabilities Act
  (ADA) and 29 CFR 1614.203. In order to be
  entitled to coverage under this statute, the
  employee must suffer from a medical condition
  that 'substantially impairs a major life
  function'.

7
Identify the right rules

• 4. Does the employee's position have properly
  established medical qualifications or physical
  requirements?
• For those Federal employees who hold positions
  that require medical qualifications or physical
  requirements, maintenance of certain heath
  criteria is mandatory to hold their position.
  These medical qualification requirements may be
  found in the Office of Personnel Management's
  Operating Manual, Section VI or in the Human
  Resources section of the employing agency for
  those standards that were developed locally.

8
Results

• Remember, granting benefits or accommodations to
  employees who do not qualify, results in reduced
  staffing efficiency reduced morale in employees
  who must perform the work of the employee
  receiving unearned benefits and may well cause
  discrimination complaints of disparate treatment
  by other employees who were not afforded similar
  benefits for similar reasons.

9
Work-Related

• 5 USC 8145 - The Secretary, U.S. Department of
  Labor, through the Director, Office of Workers
  Compensation Programs (OWCP), has the exclusive
  authority to administer, interpret and enforce
  the provisions of the Federal Employee
  Compensation Act (FECA).

10
Important Aspects

• FECA is not subject to interpretation by EEOC,
  FLRA, MSPB, Negotiated Bargaining Agreements or
  Federal judicial courts.
• Federal Workers Compensation prohibits civil
  litigation, Unfair Labor Practice complaints,
  union grievances, appeals to the Merit Systems
  Protection Board or review by the Equal
  Employment Opportunity Commission.
• In all cases, OWCP has sole authority for all
  matters pertaining to administering, adjudicating
  or enforcing workers compensation benefits.

11
Purpose of Workers Compensation

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

12
NOT the purpose of Workers Compensation

• FECA ? Retirement

13
Office of Workers Compensation
ProgramsChargeback Year 2007 (JULY 1, 2006 -
JUNE 30, 2007)

• U.S. POSTAL SERVICE 924,137,751
• DEPARTMENT OF THE NAVY 244,037,010
• DEPARTMENT OF THE ARMY 178,993,223
• DEPARTMENT OF VETERANS AFFAIRS 166,086,857
• HOMELAND SECURITY 158,529,182
• DEPARTMENT OF THE AIR FORCE 130,297,959
• DEPARTMENT OF TRANSPORTATION 93,608,877
• DEPARTMENT OF JUSTICE 94,394,738
• DEPARTMENT OF AGRICULTURE 70,801,701
• DEPARTMENT OF DEFENSE 62,630,358

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Office of Workers Compensation Programs
Chargeback Year 2007 (JULY 1, 2006 - JUNE 30,
2007)

• DEPARTMENT OF THE INTERIOR 60,199,215
• TENNESSEE VALLEY AUTHORITY 54,928,518
• DEPARTMENT OF TREASURY 52,516,793
• HEALTH AND HUMAN SERVICES 24,576,834
• SOCIAL SECURITY ADMINISTRATION 24,069,528
• DEPARTMENT OF LABOR 19,648,048
• DEPARTMENT OF COMMERCE 15,620,376
• GENERAL SERVICES ADMINISTRATION 15,110,455
• PEACE CORPS 10,801,841

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Office of Workers Compensation Programs
Chargeback Year 2007 (JULY 1, 2006 - JUNE 30,
2007)

• U.S. DEPARTMENT OF ENERGY 9,851,580
• HOUSING AND URBAN DEVELOPMENT 8,241,354
• NASA 6,878,235
• DEPARTMENT OF STATE 6,844,265
• FEDERAL JUDICIARY 6,386,876
• GOVERNMENT PRINTING OFFICE 6,105,023
• SMITHSONIAN INSTITUTION 4,552,497
• ENVIRONMENTAL PROTECTION AGENCY 4,185,552
• DEPARTMENT OF EDUCATION 1,500,611
• CORP. FOR NATIONAL COMMUNITY SVC 1,044,871
• EXECUTIVE OFFICE OF THE PRESIDENT 847,971

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Other Costs

• Continuation of Pay
• Overtime
• Lost Productivity
• Increased potential for injury

17
Cost to Taxpayer

• Total compensation and medical bills paid for all
  injured Federal employees in chargeback year
  2007

2,494,095,984
An increase of over 53 million over 2006
18
Basic Elements of a Claim

• In seeking benefits under FECA, there are five
  essential elements of an acceptable claim and the
  employee/claimant has the burden of providing the
  facts that establish these elements. They are
• Timely filed - The claim was timely filed within
  the applicable time limitation period of the Act
  
• Civil Employee - The individual is an "employee
  of the United States" within the meaning of FECA
  
• Fact of Injury Occurrence of event and
  resulting medical condition
• Performance of Duty - An injury was sustained in
  the performance of duty as alleged
• Causal Relationship - Disability and/or a
  specific condition for which compensation is
  claimed is causally related to Federal
  employment.

19
Medical Evidence

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

20
Medical Report Requirements(for work-related
conditions)

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

21
Medical Report Requirements(for work-related
conditions)

• (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

22
Medical Report Requirements(for work-related
conditions)

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

23
Medical Report Requirements(for
non-work-related conditions)

• An acceptable diagnosis must include the
  following information
•  
• (a) The history of the medical condition,
  including references to findings from previous
  examinations, treatment, and responses to
  treatment
•  

24
Medical Report Requirements(for
non-work-related conditions)

•  
• (b) Clinical findings from the most recent
  medical evaluation, including any of the
  following, which have been obtained findings of
  physical examination results of laboratory
  tests X-rays EKGs and other special evaluations
  or diagnostic procedures.
•  
• (c) Diagnosis, including the current clinical
  status
•  
• (d) Prognosis, including plans for future
  treatment and an estimate of the expected date of
  full or partial recovery
•  

25
Medical Report Requirements(for
non-work-related conditions)

• (e) An explanation of the impact of the medical
  condition on overall health and activities,
  including the basis for any conclusion that
  restrictions or accommodations are or are not
  warranted, and where they are warranted, an
  explanation of their therapeutic of risk avoiding
  value

26
Medical Report Requirements(for
non-work-related conditions)

•  
• (f) An explanation of the medical basis for any
  conclusion that indicates the likelihood that the
  individual is or is not expected to suffer sudden
  or subtle incapacitation by carrying out, with or
  without, accommodation, the tasks or duties of a
  specific position.

27
Medical Report Requirements(for
non-work-related conditions)

• (g) Narrative explanation of the medical basis
  for any conclusion that the medical condition has
  or has not become static or well stabilized and
  the likelihood that the individual may experience
  sudden or subtle incapacitation as a result of
  the medical condition.

28
Medical Report Requirements(for
non-work-related conditions)

• (g) continued - Subtle incapacitation means
  gradual, initially imperceptible impairment of
  physical or mental function, whether reversible
  or not, which is likely to result in performance
  or conduct deficiencies. Sudden incapacitation
  means abrupt onset of loss of control of physical
  or mental function.
• 5 CFR 339.104

29
Agency Medical Exams

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

30
Key Regulatory Points to Remember

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

31
Key Regulatory Points to Remember

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

32
Key Regulatory Points to Remember

• The Agency must inform the employee in writing of
  the reason for the exam and consequences of
  failure to cooperate.
• 5 CFR 339.303 (a)

33
Key Regulatory Points to Remember

• The Agency designates the physician, but must
  offer the employee the opportunity to submit
  medical documentation from their own physician.
  
• 5 CFR 339.303 (b)

34
Key Regulatory Points to Remember

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

35
Key Regulatory Points to Remember

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

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Key Regulatory Points to Remember

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

37
Important Considerations

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

38
Important Considerations

• Agency Medical Exams must be processed correctly
  and in accordance with applicable statutes and
  regulations. There must be a logical,
  work-related basis for all requests for Agency
  Medical Exams and other medical information, lest
  the employing agency be found guilty of
  discrimination.
• Bell v. Henderson (Postmaster General) EEOC
  Appeal 01974429 3/6/00

39
Important Considerations

• Employing Agencies should ensure that a
  documented review of the provisions relating to
  Reasonable Accommodation is prepared,
  particularly with regard to work-related
  aggravations of pre-existing medical conditions.
  Such a review may aid in the determination as to
  whether the employee is eligible for permanent
  accommodation under disability laws, should the
  medical condition prove to be severe enough to
  warrant such a review. 29 CFR 1614.203

40
Important Considerations (continued)

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

41
Critical EEO Decision

• A claimant may not use the EEO process to launch
  a collateral attack on the workers compensation
  process.
• Story v USPS, EEOC 05960314 (10/18/96)

42
Reasonable Accommodation
Non-work-related medical conditions 29 CFR
1614.203
43
Reasonable Accommodation(for non-work-related
injuries)

• To be useful, employment decisions must be based
  upon objective medical evidence
• The employing Agency must identify and document
  the essential functions of the position in
  question

44
Selected Cases

• The following cases are provided as a sample for
  the practitioner and are not exhaustive of the
  subject as rulings on medical-related scenarios
  in the Federal workplace are continually issued.

45
Selected Cases

• Harris v. Air Force, 62 MSPR 524 (1994) Following
  a period of extended sick leave, the agency
  required that the employee submit to a
  psychiatric examination before resuming her
  duties. The employee did not fully comply with
  the agency's order and was removed based on one
  disciplinary charge of failure to cooperate in an
  officially ordered medical examination and one
  non-disciplinary charge of medical inability to
  perform. The Board did not sustain the agency's
  disciplinary charge, finding that where, as here,
  an agency exceeds its authority to order an
  examination, it is not entitled to have its order
  obeyed, nor can it charge the employee with
  failure to follow an improper order.

46
Selected Cases

• Bond v. Department of Energy, 82 MSPR 534 (1999)
  The Board found that the administrative judge had
  erroneously held that the appellants medical
  documentation proved that he had a disability.
  In its review, the Board agreed that the agency
  had sustained its charges of absence without
  leave (AWOL) and sleeping while on duty.
  However, the Board found insufficient evidence
  that the employees condition of gastroesophageal
  reflux disease, or the effects of medication for
  this disease, substantially limited any major
  life activity, including the ability to work.
  The MSPB reviewed the medical documentation
  submitted, including medical statements on the
  impact on the employee due to the medication he
  was taking. The Board noted that the medical
  information did not support the appellants claim
  that his medication was causing him to sleep on
  the job.

47
Selected Cases

• Clark v. U.S. Postal Service, 74 MSPR 552 (1997)
  The Board held that in cases involving direct
  evidence, the burden of proof remains with the
  appellant until he or she proves that the
  suggested accommodation would enable the
  appellant to perform the essential functions of
  the job In this case, the Board found that the
  appellant met his burden of making a prima facie
  case of disability discrimination. The medical
  evidence supported a substantial limitation in
  the major life activities of lifting, sitting,
  standing and bending and the record is clear that
  the removal action was based on the medical
  condition. Further, the Board noted the numerous
  suggestions for accommodation that the appellant
  brought forward prior to and after receiving his
  proposed notice. With the burden of proof
  shifted to the agency, the Board found that the
  agencys analysis of the suggested accommodations
  was weak and the agency was unable to demonstrate
  that it had investigated thoroughly any of the
  suggestions prior to removing the employee.

48
Selected Cases

• Bell v. Henderson (Postmaster General), EEOC
  Appeal 01974429, 3/6/00
• In a case in which the complainant was eventually
  found not to be a disabled person under the law,
  the Commission noted that the employee had
  challenged that the agencys request for a
  fitness for duty examination was discriminatory
  since it was the second such examination ordered.
  The Commission found no discrimination because
  the agency was able to provide supervisory
  testimony explaining the bases for the request
  for a second exam. The employee had been on
  temporary light duty for a year and the
  supervisor needed medical information (not
  present in the earlier documentation) regarding
  whether or not the employee would be able to
  return to regular duties.

49
References

• FECA 20 CFR Part 10
• Reasonable Accommodation 29 CFR 1614.203
• Leave Administration 5 CFR 630
• Agency Medical Exams 5 CFR 339

50
Pop Quiz

• 1) Under what authority may employing agencies
  order a Federal employee to undergo a medical
  examination?
•  
• The regulatory authority under which an employing
  agency may order an employee to undergo a medical
  examination is found at 5 CFR 339. This
  regulation is applicable to all employing
  agencies and all Federal employees.

51
Pop Quiz

• 2) Why would an employing agency want to order an
  employee to undergo a medical examination?
•  Employing agencies are required to make
  informed employment decisions that are sound
  and sufficiently related to factors of
  employment. This requirement prevents agencies
  from making arbitrary and capricious decisions
  that might deny an employee certain employment
  benefits allowed by various laws. The medical or
  physical qualifications of employee and the
  employees position are some of the more
  important employment considerations faced by
  employing agencies.

52
Pop Quiz

• 3) What if an employee refuses to undergo a
  properly ordered medical examination?
•  
• An employee who refuses to undergo a properly
  ordered medical examination may face disciplinary
  or adverse action, in addition to the potential
  denial of benefits that might be based upon the
  requested medical information.

53
Pop Quiz

• 4) What are the basic rules for obtaining
  acceptable medical information pertaining to a
  Federal Employee?
• There must be an authorized reason for the
  employing agency to obtain the medical
  information.
• The medical information requested must be
  employment related.
• The employee must be provided due process in
  obtaining the information.
• The employees medical privacy must be
  safeguarded with access limited to those
  authorized agency officials with a need-to-know.

54
Pop Quiz

• 5) Can any supervisor require an employee to
  report to an Employee Health Unit for an
  examination?
• No.
• The gathering of medical information pertaining
  to Federal employees is strictly regulated.
  Arbitrary instructions by a supervisor for an
  employee to report for an examination violates
  the employees due process rights.
•  The acquisition of medical information obtained
  by the employing agency must be authorized by
  existing federal regulations for specific
  employment purposes.
•  For each type of medical information requested,
  there is a process involved that safeguards the
  rights of employees and protects medical
  confidentiality.

55
Pop Quiz

• 6) What is the basic process to obtain medical
  information about a Federal employee?
•  The employee must be notified in writing of the
  need for medical information.
•  The written notice must inform the employee of
  the reason(s) for requiring medical information.
•  The notice should include a specific date by
  which the employee must respond.
•  The employee must be given a reasonable amount
  of time to provide the requested medical
  information.
•  The employing agency should make a decision on
  the employment issue in a reasonable amount of
  time after receiving the medical information from
  the employee.

56
Pop Quiz

• 7) May an employing agency order an employee to
  undergo a psychiatric examination?
•  
• Regulations require that an agency may order a
  psychiatric examination only when 1) the result
  of a current general medical exam, which the
  agency has the authority to order, indicates no
  physical explanation for behavior or actions
  which may affect the safe and efficient
  performance of the individual or others or 2)
  when a psychiatric examination is specifically
  called for in a position having medical standards
  or is subject to a properly established medical
  evaluation program or 3) when an employee files a
  FECA claim for an emotional reaction as an
  Occupational Disease.

57
Pop Quiz

• 8) May an employing agency offer an examination
  to an employee?
•  One of the most important tools that an agency
  has to demonstrate that its employment decisions
  are sound is to offer a medical examination where
  insufficient medical information is provided by
  the employee. An employee is not required to
  undergo such an examination, but they run the
  risk of having benefits denied. An agency may,
  at its option, offer a medical examination,
  including psychiatric examinations, in any
  situation where the agency needs additional
  medical documentation to make an informed
  employment decision. The difference here is
  between an agency ordering and offering a
  medical examination.

58
Pop Quiz

• 9) What are the consequences for the employing
  agency that fails to follow the regulations in
  ordering an employee to undergo a medical
  examination?
• The most benign problem is the possibility of
  having a management decision overturned by a 3rd
  party appeal process, i.e., MSPB, EEOC, FLRA,
  Judicial courts.
• Revocation of previously made employment
  decisions
• Substantial back pay and reinstatement to a
  position.
• Monetary penalties against the agency and, in
  severe cases, directed disciplinary action
  against the management official found to be
  engaged in discrimination.

59
Contact Information
David L. Hull, MBA Program Manager Federal
Workers' Compensation U.S. Department of Veterans
Affairs Mailing Address Department of Veterans
Affairs (00S1) 810 Vermont Avenue Washington, DC
20241 Phone [phone] E-mail
david.hull_at_va.gov