7/31/2012
Transcription
7/31/2012
7/31/2012 Danna Corbell Program Analyst (VACO) Office of Occupational Safety and Health 1 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. 3 1 7/31/2012 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. 5 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). 6 2 7/31/2012 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. 9 3 7/31/2012 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). 11 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: 12 4 7/31/2012 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. 13 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. 14 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. 15 5 7/31/2012 Time Civilian employee Fact of injury ◦ Occurrence of an event ◦ Diagnosed Medical Condition Performance of duty Causal Relationship 16 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. 17 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 18 6 7/31/2012 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. 19 Occurrence of Event 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 20 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, 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. 21 7 7/31/2012 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. 22 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) 23 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 24 8 7/31/2012 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 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 25 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). 26 Recreation ◦ Formal recreation for which employee is paid or required to participate as part of assigned duties ◦ Employer sponsored event ◦ Jogging on agency premises Horseplay Assault 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 27 9 7/31/2012 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. 28 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 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) 29 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). 30 10 7/31/2012 Do the “Right Thing” ◦ Review the claim for information and/or medical documentation to determine if the employee is off work 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 31 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. 32 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) 33 11 7/31/2012 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. 34 Direct Causation ◦ injury, through a natural and unbroken sequence, result in the condition claimed Aggravation ◦ Pre-existing condition is worsened by a work injury Temporarily or permanently Acceleration 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 35 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 36 12 7/31/2012 ◦ (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. 37 Willful Misconduct ◦ violation of a safety rule simple negligent disregard/not sufficient deliberate and intentional Intoxication ◦ alcohol/drugs ◦ extent of intoxication ◦ proximate cause/manner in which intoxication caused the injury 38 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 39 13 7/31/2012 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 Previous Injury ◦ Reports to work on date of claimed injury with the appearance of an injury Time Lags Other Employment ◦ Delayed reporting of injury/seeking medical care 40 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 41 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 42 14 7/31/2012 ◦ 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? 43 ◦ 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? 44 ◦ 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? 45 15 7/31/2012 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 Code of Federal Regulations 20 CFR Part 10 Cyberfeds 46 Length - Keep position papers to one (1) page if possible ◦ Helps keep audience attention 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 47 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 48 16 7/31/2012 49 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 50 Danna Corbell Program Analyst (VACO) [email protected] d b ll@ 51 17