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Understanding Workers’ Compensation Retaliation
Brad Harris, Attorney at Law
Workers compensation laws developed as a labor/management trade-off to benefit society. The employer is relieved of being legally responsible for an injured worker’s pain and suffering but the employee is relieved having to prove that the employer was negligent in permitting the injury to occur. This reduction in proof - reduction in benefit tradeoff was supposed to allow us all to enjoy a less litigious, cantankerous situation when a worker became injured.
Along those lines, the Federal Employees Compensation Act (FECA) is to be liberally interpreted in favor of the employee. Of course the worker needs to establish the basics: he was about the business of his employer when he became injured and that the injury has caused him to need medical attention. Thereafter, the proper forms are to be sent to the Office of Workers Compensation (OWCP) for approval. If there is any question about any benefits the resolution procedure is designed to not be adversarial in nature.
On the other hand the OWCP rightfully should deny requests for payment of claims that lack documentation to connect the injury to the work incident. Because the “connection” is typically little more than a worker’s report to the physician that it happened at work, it is important that a doctor correlate his findings to the worker’s description of the injury event.
The costs of an employee’s workers’ compensation benefits are deducted (charged back) from the employing agency. It has a right, perhaps an obligation, to represent its position and interest to the OWCP. When appropriate, the employer should “controvert” the claim. For example, if the medical treatments do not appear to be supported by objective evidence. It is natural for the employer to interpret a minimization of payments made in connection with the claim to be appropriate cost avoidance and thus good management.
Without a good understanding of what is happening, and why, the employee may think the actions by the employer’s controversion of his claim is overly aggressive and the decisions made by the OWCP unintelligible.
Most of the people assigned to overseeing a workers compensation claim are taught to be wary of fraud, or at least the potential for fraud. Unfortunately, emphasis given to fraud can create excessive suspicion and criticism... especially when the investigator thinks his “discovery” of fraud demonstrates his competence, his loyalty to his employer, and smoothes the way to his own job advancement. This is a recurring problem seen in other, similar jobs, such as an insurance claims adjusters or a police officers who develop the belief that nearly everyone they see are probably criminals.
Indeed, some government employers have their own “police force” or “inspectors”. They perform eavesdropping and surveillance work of the injured worker to determine his habits, his hobbies and his away-form-work activities in an effort to find evidence that might seem to indicate that the worker has misrepresented his inability to do his government job. They can make arrests for theft of government property in connection with a fraudulent OWCP claim.
From the injured employee’s point of view, this can be seen an invasion of their privacy, humiliating, and even intimidating - particularly when one takes into consideration that if his claim is labeled “fraudulent” it may put him at risk for federal criminal prosecution.
This predicament is often made worse by the fact that managers are often pressured to avoid costs by getting the employee back to work. The federal government does have a legal responsibility to reasonably accommodate the worker by making, where possible, a job assignment suitable to the worker’s current physical limitations. Again, the aim is appropriate; both cost avoidance and to increase productivity; it’s the techniques that feels like retaliation.
No employer may require an employee to enter into any agreement to waive his right to claim compensation under FECA. A worker is not to be coerced into accepting a job that may aggravate his condition or cause re-injury. But there’s a significant counter weight, the employee’s refusal to accept a reasonable job modification can result in termination of his remaining FECA benefits. That’s a scary proposition. In our next and final report in this series, we will discuss what are the things a federal worker can do if he thinks he is facing workers compensation retaliation.
Nosey co-workers? Detectives watching you? What can you do about it? While most of the non-federal (state) workers compensation laws have anti- retaliation provisions, FECA, the federal law creating federal employee’s rights to workers compensation, has no such provision. The short answer is to find a doctor that will take the time to understand your work duties and report in detail how your physical limitations restrict those duties. You can also seek union protection by filing a grievance.
Although a criminal statute that makes a supervisor’s interference with a FECA claim a crime, it is rarely prosecuted. Interference with your rights may give rise to a “Bivens” claim for violation of due process rights guaranteed by the Constitution, but, again, few cases are brought... probably because the cost to pay an attorney for all the time that would have to be expended exceeds potential recovery.
Although FECA doesn’t provide benefits for labor-management disputes, it can provide workers compensation benefits for stress disorder caused by retaliation - even if no discrimination is proved. There’s at least two ways to do it:
- If a worker believes that he is experiencing stress and an anxiety condition as the result of the difficulty in obtaining workers compensation benefits he may be able to place the costs of the ensuing psychological and counseling treatment into his existing workers compensation claim as an additional component. The supporting medical opinion should be that the condition is the result of work related issues arising from the preceding work injury.
- An alternative approach, if the disorder is separate and distinct from the old injury, is to file an additional workers compensation claim using a CA-2 form for occupational injury. I think this is a more difficult approach under FECA and, even if successful, would probably result in no greater benefit than stress claim accepted as a component in the initial claim described above.
Congress passed at least two laws to make sure that one’s disabilities are not held against them with regards to employment—the Rehabilitation Act and the Americans with Disabilities Act. Although similar to retaliation, unlawful discrimination is considered as an EEO claim and not within the scope of the OWCP or this article. We will discuss that at another time and place. Until then, proceed cautiously... and beware of men with video recorders.
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