Employees' Compensation Appeals Board (ECAB) Information

• ECAB Trend Presentations
  
  
• Significant ECAB & Arbitration Decisions
  
  
• How ECAB Law Affects You
  
  
• Employees Compensation Appeals Board (ECAB) Rulings

 

"Catching Up with the ECAB"

Speech delivered on April 24, 2014 highlighing ECAB cases from 2013

On April 24, 2014 in Washington DC, Alan will give a presentation titled "Catching Up with the ECAB" to a select group of Federal Workers' Compenation attorneys. The presentation will include 18 cases of interest from 2013. Each case highlights recent ECAB trends and will include review of factual history, identification of central issues and a discussion of the board's decision.

Download the full presentation here.

 

Here are all 18 cases of interest with links to the descisions.

N.W., Appellant and U.S. POSTAL SERVICE, STATISTICAL PROGRAMS, Pittsburgh, PA, Employer 12-1618

• The claim was approved for lumbar strain, L3-L4 herniated disc, and enthesopathy of the hip region.
• The IME physician found that the claimant could perform work for four hours a day.
• The employer then offered the claimant a four hour per day job that was on an interim basis and when available.
• OWCP ruled that the job was suitable.  The claimant refused the job offer and compensation was terminated.

Click here to review the complete descision.

W.S., Appellant and DEPARTMENT OF VETERANS AFFAIRS, RALPH H. JOHNSON MEDICAL CENTER, Charleston, SC, Employer 12-992

• The claimant contended that actions of his employer caused him to have a psychiatric injury.
• The claim was denied on two grounds.  Factors of employment as to discrimination were not established.  The medical evidence did not establish causal relationship.
• The claimant prevailed before EEOC at a time after the decision of OWCP and BHR.  He attempted to obtain a new review, even though it was more than one year from the last merit decision.

Click here to review the complete descision.

 

R.B., Appellant and DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, RECORDS MANAGEMENT DIVISION, Winchester, VA, Employer 12-455P

• A stuffed toy monkey hanging from a noose was placed on the bulletin board in the work place.  Claimant was the only black person in this area
• The claimant contends that as a result, he sustained a psychiatric injury.
• OIG investigated the incident.  The report was sent to OWCP.  The documents were heavily redacted.  The witness statements verified the claimants account.  Several of the witnesses indicated that they were offended by the “monkey”.  OWCP denied the claim

Click here to review the complete descision.

 

R.B., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Austin, TX, Employer 12-1881

• The claimant was paid on 18% scheduled award.
• He subsequently filed for an additional award.
• He was granted a 7% additional award.
• Claimant filed a third request for scheduled award. 
• This time, the IME said claimant only had a 1% impairment. 
• OWCP agreed, and declared an overpayment.

Click here to review the complete descision.

 

T.S., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Grand Rapids, MI, Employer 13-281

• The claim was approved for a below the knee amputation.  Claimant was first awarded a 28% impairment.  Subsequently, it was raised to 70%.
• The claimant requested that he be paid for 100% loss of leg.  OWCP refused to raise the award based on the 6th edition of the AMA Guide.

Click here to review the complete descision.

 

L.B., Appellant and DEPARTMENT OF THE NAVY, NAVY PUBLIC WORKS DEPARTMENT, San Diego, CA, Employer 13-448

• Claim was approved for:

• Open right wrist distal radial distal fracture.
• Aggravation of herniated disc at L4-L5.
• Left sided sciatica.
• Internal complication of an orthopedic right wrist implant.
• Traumatic tenosynovitis of the right wrist.
• Left wrist osteoarthritis.

• He was awarded temporary total disability.  However, he filed for and received an increase in his Veterans Administrative Service Connected Disability.
• OWCP when notified by the claimant of this fact, immediately required claimant to elect between the two benefits.  However, claimant did not make an election and OWCP determined that he elected VA benefits and declared an overpayment of $220,155.28.
• OWCP refused to waive the overpayment, although it did admit that the claimant was without fault.   
• The VA notified OWCP that the increase in benefits was not based on the OWCP case.  The service connected injury was to the left wrist and left leg injury.  The injury of the left wrist and left leg were never approved by OWCP.  

Click here to review the complete descision.

 

C.S., Appellant and DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL CENTER, Reno, NV, Employer 13-624

• The claim was accepted for nasal bone fracture, contusion of right elbow and forearm, lumbar sprain, displacement of lumbar intervertebral disc without myelopathy, and aggravation of degenerative disc disease. 
• Dr. Swartz, the IME, second opinion, said claimant could return to work for 4 hours a day with restrictions.
• The claimant returned to work from October 11, 2011 through October 21, 2011.  She then said that work was beyond her restrictions and that she could not work.  The attending physician disagreed with the second opinion physician.
• OWCP denied further TT on the basis that the medical established that she could perform work.

Click here to review the complete descision.

 

S.C., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Albemarle, NC, Employer 13-738

• The claimant was injured by a metal box.  The claim was denied. 
• The claimant did not file an appeal. 
• The claimant in fact did not know that the claim was denied.
• Counsel filed a letter with new medical evidence.
• Counsel contended that the original denial was on the basis that additional medical evidence was needed.  Therefore, no appeal was in fact required. 
• The only thing needed was new evidence.

Click here to review the complete descision.

 

B.C., Appellant and DEPARTMENT OF THE ARMY, U.S. ARMY MEDICAL RESEARCH INSTITUTE OF INFECTIOUS DISEASES, Fort Detrick, MD, Employer 13-81

• The claimant alleged that he contracted a parasitic infection in the performance of duty.
• Claimant was an animal caretaker. 
• He alleged that he was exposed to fecal matter while cleaning cages.
• OWCP did agree that claimant was exposed to the infectious agent. 
• OWCP denied the claim on the basis of causal relationship.

Click here to review the complete descision.

 

A.L., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Bethpage, NY, Employer 12-1839

• The claim was approved for lumbar strain and subluxcation of lumbar vertebrae.  The claimants attending physician returned him to work with the following limitations:

• Work for eight hours per day.
• No lifting over fifty pounds intermittently.
• No pulling or pushing or simple grasping for more than five to six hours per day.

• The employer offered claimant a modified job that appeared to meet the restrictions, but in fact, was the same job as the claimant was performing before becoming disabled. 
• The employer failed to explain how it was to accommodate the work restrictions.
• OWCP found that the job offer was suitable. 
• The claimant refused the job offer, and benefits were terminated.

Click here to review the complete descision.

 

C.M., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Aurora, IL, Employer 13-22

• The claim was accepted for bilateral carpal tunnel syndrome.  Claimant filed for scheduled award.  A 6%       award was issued. 
• Claimant filed for an additional award stating there was a 19% impairment of right arm and 9% of left arm.
• OWCP never adjudicated the left arm request.
• The claim was reviewed by the District Medical Director, David Garelick. 
• Dr. Garelick never examined the claimant. 
• He stated that a 2009 report from the attending physician prevailed over a later report from an examining physician. 
• He criticized the report on the basis that the doctor was an internist and was selected by the claimant’s attorney.

Click here to review the complete descision.

 

R.R., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Cleveland, OH, Employer 13-851

• The claim was accepted for bilateral carpal tunnel syndrome.
• The claimant could not be accommodated by the Federal Employer.  
• A vocational rehab counselor said claimant could earn $481.00 a week as an appointment clerk.

Click here to review the complete descision.

 

C.B., Appellant and DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION MEDICAL CENTER, Syracuse, NY, Employer 13-1091

• The claimant alleged that as a result of a foot drop due to a 2004 work related back injury, she tripped      on a curb while in the course of her employment causing injury to her left knee. 
• The claim was denied on causation grounds. 
• Claimant re-filed the claim as a consequential condition.
• OWCP denied the new claim on fact of injury and causal relationship.

Click here to review the complete descision.

 

J.S., Appellant and U.S. POSTAL SERVICE, PROCESSING & DISTRIBUTION CENTER, Columbia, SC, Employer 13-1288

• The claim was accepted for lumbar sprain, right shoulder sprain, lumbo sacral spondylolsis without myelopathy and lumbar stenosis.
• IME said claimant could perform part-time sedentary employment.  
• Claimant would have to use numerous mobility devices and be cautious in performing movement.  
• The third opinion doctor agreed with the limitations, but said claimant could perform sedentary work 8 hours a day.  
• Claimant could not operate motor vehicle at work.  Could only bend, stoop and twist for half hour per-day.  Could barely kneel and could not squat.
• The employer offered claimant a modified position.  Claimant refused.  OWCP found the job suitable and terminated benefits.  

Click here to review the complete descision.

 

A.L., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Hartford, CT, Employer 13-701

• The claim accepted for back and neck strains, back contusion, post traumatic headaches, intervertebral disc disorder, and displacement of a cervical disc.
• The claimant underwent C5-C6 disc fusion, anterior arthrodesis at C4-C5.
• The claimant filed for scheduled award. Claimant’s doctor said he had 8% whole body impairment.
• Christopher Brigham, MD, OMA, stated there was no ratable impairment following the guide lines of the July/August 2009 news letter, which he wrote.
• Claimant submitted another report from Dr. Garvey, an excellent impairment evaluator.
• She found that the claimant had 6% upper extremity impairment.
• Dr. Morley Slutsky, another OMA, rejected the objective findings of the examining physicians. He cited a report from 2003 to justify his opinion that there was no ratable impairment.
• OWCP denied an award.

Click here to review the complete descision.

 

C.P., Appellant and U.S. POSTAL SERVICE, POST OFFICE, Charlotte, NC, Employer 13-1293

• The claimant sustained compensable bilateral carpal tunnel syndrome.
• Compensation for temporary total disability ceased.
• The IME said the condition resolved and claimant could return to work.
• Claimant filed for scheduled award.
• It was denied on the basis that the IME said condition had resolved and claimant was no longer temporarily and totally disabled.  

Click here to review the complete descision.

 

M.R., Appellant and U.S. POSTAL SERVICE, PROCESSING & DISTRIBUTION CENTER, Miami, FL, Employer 13-1279

• The claim was accepted for left ankle sprain, left hip contusion, left shoulder sprain, concussion, aggravation of migraines, aggravation of lumbalsia and pelvic prolaspe.
• The claimant submitted a medical report evaluating her impairment as 3%.
• OWCP denied the request for scheduled award on the basis that the report did not establish a causal relationship between the medical conditions and the impairment.

Click here to review the complete descision.

 

B.H., Appellant and DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, Richmond, VA, Employer 13-1486

• The claim was accepted for bilateral carpal tunnel syndrome.
• Claimant underwent surgery.
• OWCP placed a wage loss earning decision against her.  Claimant claimed a recurrence of her conditions. 
• It was denied on January 3, 2012.  Reconsideration was filed on August 7, 2012.
• OWCP denied the request on the basis that it did not receive the request for reconsideration until       February 14, 2013. 
• However, OWCP had previously confirmed by letter that it had timely received the request. 
• In fact, the request was in the file.  

Click here to review the complete descision.

__________________________________

 

ECAB Trends Presentation from 2013

On May 17 2013 in Washington DC, federal workers compensation attorney Alan J. Shapiro gave a presentation on ECAB trends to a select group of Federal Workers' Compenation attorneys.

Download the full powerpoint presentation here.

Significant ECAB & Arbitration DECISIONS:

Dear Federal Workers’ Compensation Clients,

I participate in literally hundreds of appeals each year. While each decision is a learning experience, most are not unusual. Most cases rest on the facts or medical causal relationship. However, several are considerable importance and interest. I am putting on my web site some of the decisions that I feel are interesting.

Decisions will be posted that are both “winners” and “losers”. Read the decisions and tell me how you would have ruled if you were the judge. Let me know your strategy if you were the lawyer. Let me know if you believe that the truth of the client’s statements and the doctor’s opinion. What do you think is the most essential fact of the case?

Sincerely yours,

Alan J Shapiro, Attorney at Law

The following are the cases listed in this newsletter.

 

Arbitration decision involving the National Reassessment Program

I believe that the arbitrator is right on point. His decision should be the model for all United States Post Office (USPS) decisions involving the National Reassessment Program.

Click Here

In the Matter of the Arbitration between the United States Postal Service and National Association of Letter Carriers, AFL-CIO

Case No. BO6N-4B-C 09401562

Union No. 0906106501

 

Scheduled Award

I believe that this ECAB case R. L. and the U.S. Postal Services, 61 ECAB 09-1948 decided June 29 2010 finally correctly clarifies the law concerning the law concerning the “disability” and “impairment”. The Board, ECAB, very clearly instructed OWCP to recognize that the termination of disability benefits is not a termination of impairment benefits. A Schedule Award is an impairment decision and not a disability decision. It does not consider loss of earning capacity. It considers loss of function of the body.

Click Here

R. L. and the U.S. Postal Services, 61 ECAB 09-1948 decided June 29 2010

 

Wage Earning Capacity Decision

The ECAB board in the case of A.J. and the United States Postal Service, 61 ECAB 10-619 decided June 29 2010, tried to clarify and set forth reasonable rules concerning Loss of Wage Earning Capacity (LWEC) decisions. The decision is an excellent analysis of the evidence. The decision should be followed by OWCP as the definitive statement of Law. We shall see what OWCP does.

Click Here

A.J. and the United States Postal Service, 61 ECAB 10-619 decided June 29 2010

 

Suitable Job Offer

The subject of Suitable Job Offer could and should be the basis for an extensive Law Review article. In my opinion, there never should be a suitable job offer decision unless the claimant is represented by experience legal counsel. The refusal to accept a “Suitable Job Offer” ends the claimant’s case. I tell my clients that this is the death of their claim – this is a verdict of death with no hope of resurrection. I submit that OWCP and the ECAB Board should require that a claimant should receive legal advice before refusing a Suitable Job Offer. The ECAB Board, very much to its credit, especially Chief Judge Alex Koromilas, understands the severity of the penalty. The Board requires OWCP to meet a very high standard of proof. The ECAB Board requires that OWCP follows the law precisely. In the case of L.C. vs. U.S. Postal Service Post Office Docket No 08-2334 Issued July 16 2009 ruled since the employee’s date of injury position was permanent, the office could not find that a temporary job was suitable.

Click Here

L.C. vs. U.S. Postal Service Post Office Docket No 08-2334 Issued July 16 2009

 

ECAB UPDATE presentation

ECAB Update Presentation Federal Workers' Compensation Attorney Alan J Shapiro was a featured expert speaker at the LRP Publication Federal Workers' Compesation conference held in November 2008.The presentation was titled ECAB Update. ECAB is the highest appellate authority in the Federal Workers' Compensation system.

Attorney Elizabeth Morrow (LRP Publiscation's expert writer on ECAB) and Attorney Alan Shapiro presented an hour and a half lecture and then answered questions. Attendees included Union representatives, Employer Human Resource representatives and various Federal Workers' Compensation providers. The attendees gave the highest ratings for this informative session

click here to review presentation material

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How ECAB Case Law Affects You

On November 8 2012, Alan J. Shapiro, Esq. presented the lecture: How ECAB Case Law Affects You at the 7^th Annual Wokers’ Compensation in the Federal Workplace produced by cyberFEDS and LRP publication

The session description stated “Staying on top of the latest Employees’ Compensation Appeals Board (ECAB) decisions is critical to understanding entitlement to federal workers’ compensation benefits, and how the Board interprets the law and regulations. Mr. Shapiro, an attorney with 50 years of experience representing injured employees, will review the most significant ECAB decisions of the past year and explain their impact on how you perform your job.

Session takeaways

• Understand ECAB’s role in the federal workers’ comp system

• Identify issues that have shaped ECAB decisions over the past year

• Apply key lessons from cases involving common issues”

Current ECAB cases highlighted were grouped into the following categories.

I. Technicalities
II. Employee Misconduct
III. Wage-Earning Capacity
IV. Loss of Vision
V. Fact of Injury
VI. Performance of Duty
VII. Fraud

Please click here to view the complete PowerPoint presentation. Click here to view the case report.

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Employees Compensation Appeals Board (ECAB) Rulings

Federal Workers' Compensation Attorney Alan J Shapiro is a featured speaker at the 6^th Annual the 6^th Annual Workers' Compensation in the Federal Workplace Conference sponsored by LRP Publications. The topic is Employees Compensation Appeals Board (ECAB) Rulings from the past twelve months.

Attorney Shapiro will discuss the topics and cases listed below.

ECAB Decision Topics

• Merit Decisions
• Loss of Wage Earning Capacity
• Emotional Disorders
• Intoxication
• Termination of Claim by Legal Fiat

 

Merit Decisions

What happens if claim is denied and no appeal is taken within the statutory time limit?

Is the claim over?

T.S. and Postal Service

111 LRP 43417 (ECAB Docket 10-1362 April 26, 2011)

http://www.dol.gov/ecab/decisions/2011/Apr/10-1362.htm

• OWCP must make a limited review of the evidence to determine whether there is clear evidence of error.
• The evidence must be positive, precise and explicit.
• If statement of accepted facts is an error, then this is clear evidence of error and a full review is required.

R.C. and Postal Service

111 LRP 43417 (ECAB Docket 10-1672 June 6, 2011)

http://www.dol.gov/ecab/decisions/2011/Jun/10-1672.htm

• Minor errors in procedure or if the decision was within the discretion of OWCP, then new merit decisions will not be granted.
• This was pro se case – What does this tell you?

A.B. and Post Office

111 LRP 20366 (ECAB Docket 10-1070 March 8, 2011)

http://www.dol.gov/ecab/decisions/2011/Mar/10-1070.htm

• An EEOC decision is new evidence of sufficient probative value to shift weight of evidence and require a merit decision.
• If evidence was not available at time of original adjudication, then it will justify a merit review.

 

Loss of Wage Earning Capacity

Infamous LWEC

M.V. and Department of Homeland Security

111 LRP 43415 (ECAB Docket 10-1642 June 15, 2011)

http://www.dol.gov/ecab/decisions/2011/Jun/10-1642.htm

• OWCP can not identify a "constructive job" without showing how many of the positions were entry level.
• OWCP must establish the Availability of the alleged suitable employment.

B.M. and National Archives and Records

111 LRP 32166 (ECAB Docket 10-1092 April 25, 2011)

http://www.dol.gov/ecab/decisions/2011/Apr/10-1092.htm

A LWEC decision must:

• Adhere to the accepted work restriction
• Consider work skills-past employment, and vocational ability
• Consider claimant's age
• Availability of suitable employment
• Job may not be makeshift or an odd lot position

R.J. and Postal Service

111 LRP 43705 (ECAB 10-2114 June 15, 2011)

http://www.dol.gov/ecab/decisions/2011/Jun/10-2114.htm

• A LWEC must be based on a permanent job and not on a temporary job if the job at the time of injury was permanent.

A.J. and Postal Service

111 LRP 39850 (ECAB Docket 10-619 June 29, 2010)

http://www.dol.gov/ecab/decisions/2010/Jun/10-0619P.htm

• A make-shift job (one created to accommodate claimant's restrictions) can not constitute a bona fide job that would be available to appellants in the community at large.

H.C. and Postal Service

111 LRP 44322 (ECAB Docket 10-2016 June 10, 2011)

http://www.dol.gov/ecab/decisions/2011/Jun/10-2016.htm

• The vocational counselor is giving assistance to the claims examiner, not making the decision.
• The claims examiner must review all of the evidence, and explain how the claimant is capable of performing the job.

 

Emotional Disorders

What is crazy?

D.S. and Postal Service

111 LRP 27668 (ECAB Docket 10-1643 April 25, 2011)

http://www.dol.gov/ecab/decisions/2011/Apr/10-1643.htm

• Administrative actions never give rise to compensable facts of employment unless the acts are illegal, or at least, violate the employment contract.
• A transfer of the place of employment is a legitimate administrative function.

C.R. and Postal Service

111 LRP 38667 (ECAB Docket 10-1942 May 20, 2011)

http://www.dol.gov/ecab/decisions/2011/May/10-1942.htm

• Mere allegations of harassment will not constitute factors of employment.
• Being told to "shut up" is not sufficient verbal abuse to constitute a factor of employment.

D.P. and Department of Veterans Affairs

111 LRP 24218 (ECAB Docket 10-1375 March 24, 2011)

http://www.dol.gov/ecab/decisions/2011/Jun/10-2114.htm

• Dissatisfaction with the job is not a factor of employment.

C.M. and Postal Service

111 LRP 31944 (ECAB Docket 10-1540 April 21, 2011)

http://www.dol.gov/ecab/decisions/2011/Apr/10-1540.htm

• Claimant's perception of harm, when there are facts that give a reasonable basis for this fear, will constitute a compensable fact of employment.
• Claimant does not need to prove actual harm – only that there is a reasonable belief of harm.

 

Intoxication

So you think you know what this means?

A.S. and Postal Service

111 LRP 28703 (ECAB Docket 10-0514 April 12 2011)

http://www.dol.gov/ecab/decisions/2011/Apr/10-0514.htm

• "Intoxication is a statutory defense to the compensability of the claim.
• It is an "affirmative defense" to the compensability of the claim. It is an "affirmative defense" that must be proven by the agency with reliable, probative, and substantial evidence.
• The fact that the claimant was positive for narcotic medications, and acted as if under the influence of the overdose is not sufficient proof to rebut the compensability of a claim.
• The defense requires proof the injury was caused by the "intoxication".
• The intoxication must be the sole cause.

N.P. and Postal Service

111 LRP 38775 (ECAB 10-952 May 18, 2011)

http://www.dol.gov/ecab/decisions/2011/May/10-0952.htm

• The use or abuse of prescription medication is not in and of itself a basis for denial of a claim.
• The affirmative defense of intoxication requires reliable probative and substantial evidence that the intoxication was the sole cause of the accident.
• Simply proving intoxication due to medication will not be sufficient.

 

Termination of Claim by Legal Fiat

Is a final decision written in stone?

S.C. Department of Treasury

111 LRP 37062 (ECAB Docket 10-1706 May 9, 2011)

http://www.dol.gov/ecab/decisions/2011/May/10-1706.htm

• Intoxication is an affirmative defense.
• Deviation from employment is a burden of proof requirement for the claimant.

S.Z. and Department of Veterans Affairs

111 LRP 39737 (ECAB Docket 10-1764 May 25, 2011)

http://www.dol.gov/ecab/decisions/2011/May/10-1764.htm

• A recession based on a new medical report will not constitute evidence that is sufficient to rescind the prior allowance of a claim.
• The Office should not be second guessing a prior adjudicating claims examiner, and simply arriving at a different conclusion.

W.F. and Postal Service

111 LRP 35873 (ECAB Docket 10-1828 May 13, 2011)

http://www.dol.gov/ecab/decisions/2011/May/10-1828.htm

• Inability to drive to place of employment, and no public transportation available, is a valid reason to refuse a suitable job offer.

C.G. and Department of Homeland Security

111 LRP 36333 (ECAB Docket 10-2039 May, 13, 2011)

http://www.dol.gov/ecab/decisions/2011/May/10-2039.htm

• OWCP may not "rubber stamp" a doctor's return to work form.
• OWCP has the burden of proving that the claimant can return to work even if the claimant's own physician says claimant may return.

This is a link to the ECAB Orders and Decisions

http://www.dol.gov/ecab/decisions/main.htm

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