MF-2: How ECAB Case Law Affects You
Nov. 7, 2012
2:30 pm – 3:45 pm
How ECAB Case Law Affects You
Presented by
Alan J. Shapiro, Attorney at Law
216-927-2030
www.injuredfederalworker.com
Case Selection Criteria
 LRP ECAB year in review is from Aug. 1, 2011 to
July 31, 2012 because the submission date for
publication was Sept. 1, 2012.
 Cases were chosen that I felt would be of
educational value for agency personnel.
 Several ancient cases were cited as background
for recent changes in the law.
I. Technicalities
Technicalities are important.
“The devil is in the details.”
Technicalities
T.G. and Department of Veteran Affairs,
112 LRP 18954 (ECAB 03/15/12).
 It is important to distinguish between a
traumatic injury claim (CA-1) and an
occupational disease case (CA-2).
Technicalities
R.I. and U.S. Postal Service, 111 LRP 74749
(ECAB 11/25/11).
 OWCP must show that it considered all
evidence on file.
Technicalities
D.C. and Department of the Navy, 112 LRP 3747
(ECAB 01/06/12).
 Statute of limitations starts to run when the
employee receives confirmation of the diagnosis.
 Agency should seek confirmation from the doctor
as to whether the employment caused the
medical condition.
Technicalities
R.B. and Department of Veteran Affairs,
112 LRP 3468 (ECAB 12/28/11).
 District medical director is not an
independent medical examiner.
 The district medical director’s opinion
may create a conflict, but cannot be
determinative of the medical issue
without an IME report.
Technicalities
L.K. and U.S. Postal Service, 112 LRP 6639
(ECAB 01/19/12).
 A suitable job offer submitted by the
employer must consider all medical
conditions, not just work-related medical
conditions.
Technicalities
R.M and U.S. Postal Service, 112 LRP 17461
(ECAB 03/09/12).
 Claimant’s representative must be notified
of a decision to terminate or modify
benefits or the decision is null and void.
Technicalities
C.E. and Department of Justice, 112 LRP 25101
(ECAB 04/25/12).
 Notice must be sent to the correct address
when the OWCP knows the address or any
decision is null and void.
Technicalities
C.K. and Department of Homeland Security,
112 LRP 9634 (ECAB 02/08/12).
 Income from criminal activities must be
reported to the OWCP or forfeiture will apply
– cash counts.
Technicalities
J.C. and Department of the Treasury,
112 LRP 9575 (ECAB 02/15/12).
 The OWCP must read the report –
or at least say it did.
II. Employee Misconduct
“Is it OK to lie, cheat, or smack
your supervisor?”
Employee Misconduct
R.R. and U.S. Postal Service, 112 LRP 3566
(ECAB 12/19/11).
 Statements inconsistent with the claim of
injury may be used to deny the claim.
 Statements made on Facebook and Twitter
are fair game to be used to impeach the
claimant’s credibility.
Employee Misconduct
A.H. and U.S. Postal Service, 112 LRP 14923
(ECAB 02/27/12).
 A physical altercation with the supervisor
arising out of an employment-related
dispute is compensable.
 It is not material which party is the
aggressor.
Employee Misconduct
B.P. and Dep’t of Agriculture, 111 LRP 72712
(ECAB 10/20/11).
 Imprisonment for a nonwork-related felony only
suspends benefits for the claimant. The dependents
are still entitled to receive their portion.
 Imprisonment without a conviction does not
suspend benefits.
 Conviction for a federal misdemeanor or felony for
worker’s compensation fraud forfeits compensation
but not medical treatment forever. There is no
redemption.
III. Wage-Earning Capacity
“OWCP is not an employment agency.”
Wage-Earning Capacity
D.B. and U.S. Postal Service, 112 LRP 3809
(ECAB 01/12/12).
 The job identified by the OWCP or offered
by the employer must be equivalent in
hours to the job the claimant had on the
date of injury.
 A part-time job is not a proper wageearning capacity job when the employee
had a full-time job on the date of injury.
Wage-Earning Capacity
B.H. and Department of the Treasury,
112 LRP 4410 (ECAB 01/03/12).
 A modified job, i.e., wage-earning capacity job,
need not last forever.
 A Functional Capacity Exam that shows the
claimant has the ability to perform regular
work, may be sufficient evidence to deny a
claim for compensation when the limited-duty
job has been withdrawn.
Wage-Earning Capacity
A.N. and U.S. Postal Service, 111 LRP 72842
(ECAB 10/26/11).
 When the employer withdraws a limited-duty job
offer, alleging there is no work available, the
claimant is entitled to compensation when the
medical evidence establishes that:
•
•
•
•
The claimant cannot perform regular work;
Restrictions are still in place;
There has been no wage-earning capacity rating; or
The claims examiner has set aside the rating.
Wage-Earning Capacity
M.A. and U.S. Postal Service, 112 LRP 40552
(ECAB 07/24/12).
 The agency must prove to OWCP that the WEC position
was an actual bona fide position.
 The agency must explain how it can unilaterally withdraw
a permanent position without regard to seniority rights.
 The agency must establish that the job position was open
to the general public or employees without physical
limitations.
 The agency and OWCP must follow FECA Bulletin No. 0905.
IV. Loss of Vision
So what if you lost an eye – you have another one.
So says the AMA, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009).
Loss of Vision
A.G. and Department of the Army,
112 LRP 19222 (ECAB 04/09/12).
 When a claimant loses total vision in
one eye, he is now entitled to the
maximum award for loss of vision of
the one eye.
Loss of Vision
R.L. and Department of the Treasury,
104 LRP 31858 (ECAB 06/21/04).
 Claimant lost total vision in one eye,
and was paid 60% loss of vision. When
the eye was actually removed, the
claimant was paid the additional 40%.
Loss of Vision
D.H. and Department of Defense,
110 LRP 39993 (ECAB 06/23/10).
 Loss of total vision of one eye, but
eye remained intact. Claimant
awarded 50% loss of vision.
V. Fact of Injury
It’s a lot more than “I did not have it when I
came to work, but now I have it.”
Fact of Injury
M.B. and U.S. Postal Service, 112 LRP 10620
(ECAB 02/15/12).
 Claimant must be able to identify time, place
and manner of injury. “Vague recitation of
the facts is not sufficient.”
Fact of Injury
C.Y. and Department of Veterans Affairs,
112 LRP 9822 (ECAB 02/02/12).
 Claimant must be able to identify a specific
medical condition, may not file a claim for
symptoms.
Fact of Injury
J.J. and Department of Justice,
112 LRP 25299 (ECAB 04/23/12).
 Fact of injury and causal relationship
are two separate concepts. Causal
relationship is not assumed – it
requires substantial, reliable, and
probative evidence.
Fact of Injury
M.C. and Department of the Interior,
112 LRP 23465 (ECAB 04/02/12).
 What happens when medical science
states that there are no tests to
establish a medical condition and
diagnosis must be made on the basis of
symptoms? ECAB says: Send it back for
another report.
VI. Performance of Duty
“Exercise is not necessarily good for you.”
Performance of Duty
E.A. and Department of Defense, 112 LRP 17855
(ECAB 03/14/12).
 Injury while exercising, in order to meet the
physical requirements of the job, is not in the
performance of one’s duty unless specifically
supervised by the employer. Even providing the
equipment may not be sufficient to establish a
compensable claim.
VII. Bonus Topic - Fraud
When Big Brother is Watching You
Fraud
F.S. and U.S. Postal Service
112 LRP 48519 September 26, 2012
When Big Brother Goes too Far!
 OWCP must disclose the existence of videotape evidence to the claimant before
it is shown to the doctor.
 Claimant must be given the opportunity to comment on the evidence before the
physician is contacted.
 The employing agency may not contact the treating physician. It is OWCP’s
obligation to send the videotape to the treating physician.
 Evidence obtained by direct contact with the treating physician is inadmissible
and can not be a basis for termination of benefits.
 The Office of Inspector General does have the right to conduct investigations in
accordance with its rules and regulations. However, the use of the evidence
must comply with the rules and regulations of OWCP.
VIII. Questions?