Federal Workers’ Compensation First Line Supervisor Course

Federal Workers’ Compensation First Line Supervisor Course Gold Nuggets Of Medical Issues February 25-27, 2014 Phoenix, AZ David L. Hull, MBA Program Manager Federal Workers’ Compensation Program U.S. Department of Veterans Affairs

Course Title: Federal Workers’ Compensation - First Line Supervisor CourseTarget Audience: VA First Line Supervisors • 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 • Understand the Agency Medical Exam process to obtain objective medical information upon which an informed employment decision may be based

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

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.

Identify the right rules 2. Does the medical condition define the employee as a 'qualified handicapped employee under the Americans With Disabilities Act as Amended (ADAAA)? 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 as Amended (ADAAA) 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'.

Identify the right rules 3. 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.

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.

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).

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 any matter pertaining to administering, adjudicating or enforcing the provisions of FECA.

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.

NOTthe purpose of Workers’ Compensation FECA ≠ Retirement

Office of Workers’ Compensation ProgramsChargeback Year 2013(JULY 1, 2012 - JUNE 30, 2013) U.S. POSTAL SERVICE$1,305,072,082 DEPARTMENT OF THE NAVY$ 222,803,441 DEPARTMENT OF VETERANS AFFAIRS $ 199,368,470 DEPARTMENT OF THE ARMY$ 166,731,441 HOMELAND SECURITY $ 183,968,314 DEPARTMENT OF THE AIR FORCE $ 126,470,302 DEPARTMENT OF JUSTICE $ 115,768,099 DEPARTMENT OF TRANSPORTATION $ 93,651,731 DEPARTMENT OF AGRICULTURE $ 72,364,968 DEPARTMENT OF DEFENSE$ 66,517,347

Office of Workers’ Compensation ProgramsChargeback Year 2013(JULY 1, 2012 - JUNE 30, 2013) DEPARTMENT OF THE INTERIOR $58,871,646 DEPARTMENT OF TREASURY $55,002,740 TENNESSEE VALLEY AUTHORITY $46,824,653 SOCIAL SECURITY ADMINISTRATION $25,601,751 HEALTH AND HUMAN SERVICES $27,225,954 DEPARTMENT OF LABOR $18,154,430 DEPARTMENT OF COMMERCE $17,032,174 GENERAL SERVICES ADMINISTRATION$13,169,364 PEACE CORPS $14,591,288

Office of Workers’ Compensation ProgramsChargeback Year 2013(JULY 1, 2012 - JUNE 30, 2013) U.S. DEPARTMENT OF ENERGY $9,219,999 HOUSING AND URBAN DEVELOPMENT $7,285,615 DEPARTMENT OF STATE $9,435,510 FEDERAL JUDICIARY $7,061,743 GOVERNMENT PRINTING OFFICE $5,367,160 NASA $4,861,652 SMITHSONIAN INSTITUTION $4,460,990 ENVIRONMENTAL PROTECTION AGENCY $4,509,635 DEPARTMENT OF EDUCATION $1,677,212 CORP. FOR NATIONAL & COMMUNITY SVC $1,033,106 EXECUTIVE OFFICE OF THE PRESIDENT $1,001,204

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

Cost to Taxpayer Total compensation and medical bills paid for all injured Federal employees in chargeback year 2011: $2,927,295,955 An increase of $78,561,259 over 2012

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.

Questionable Issues Was the injury caused by: • Willful misconduct • Intoxication by drugs or alcohol • Intent to injure self or others These are Statutory Bars to Coverage

Other Considerations “An employee who is separated for misconduct and whose removal is wholly unconnected to the work-related injury is not entitled to further compensation benefits.” OWCP Publication CA-810, Chapter 8, paragraph 8-9

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.

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;

Medical Report Requirements (continued) (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;

Medical Report Requirements (continued) (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

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;

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;

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;

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.

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.

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

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 employee’s physical limitations.

Key Regulatory Points to Remember • Agency Medical Exams must be offered or ordered, in writing, usually by the Employing Agency’s Appointing Authority (commonly the Chief of Human Resources). 5 CFR Part 339

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)

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)

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)

Key Regulatory Points to Remember • Agency must review and consider all medical documentation submitted by employee’s physician. Notice must give the physician’s 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

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)

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

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 presentrationalized 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)

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

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 wayto the employee's condition, the condition is considered to be employment related.” Arnold Gustafson, 41 ECAB 131 (1989)

Critical EEO Decisions “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)

Critical EEO Decisions “The Commission has recognized that an agency has the right to represent its position and interest in the OWCP Forum, and will not review decisions, which would require it to judge the merits of a workers compensation claim.” Hogan EEOC 05940407

Critical EEO Decisions The Commission stated: “…it is well established that an Agency has an obligation to controvert an employee’s workers compensation claim where there is a dispute as to the employee’s entitlement.” Andel v. USPS EEOC 01975337

Reasonable Accommodation Non-work-related medical conditions 29 CFR 1614.203

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

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

Reasonable AccommodationChecklist • Use sample checklist provided to ensure that all steps are taken with regard to Reasonable Accommodation requests.

Sample Letters • Letter Number 1 – used for non-work-related medical conditions and to offer AME • Letter Number 2 – used to request medical evidence to support work-related claims • Letter Number 3 – used to request medical information for non-work-related conditions • Letter Number 4 – used to order an employee to undergo an AME for work-related conditions

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

Pop Quiz In support of a claim for compensation, the employee is responsible for submitting, or arranging for the submittal of: • a disability to work statement • medical evidence to OWCP which establishes both that disability continues and that the disability is due to the work related injury • medical evidence that establishes disability • none of the above

Federal Workers’ Compensation First Line Supervisor Course