Attig Law Firm P.L.L.C

In a decision issued July 3, 2008, the full Merit Systems Protection Board reversed the removal of its employee George Bruton. This case is interesting for a couple reasons - but first, the facts. (You can read the full decision by clicking on this text).

Mr. Bruton was a VA employee. As with most Federal employees, his problems started when he was injured on the job in 2002. In 2005, Mr. Bruton’s doctor restricted him to 3 hours a day of work. The Office of Workers Compensation directed that Mr. Bruton get a second opinion and, because the second opinion was different from that of his own doctor, Mr. Bruton was required to get a referee opinion. The referee opinion determined that Mr. Bruton could work an 8 hour day.

Mr. Bruton was directed to return to work, and he did, but only worked a 3 hour day, consistent with his doctor’s restrictions. After about 3 months, the VA removed Mr. Bruton.

The Administrative Judge in Mr. Bruton’s MSPB appeal sustained the Agency’s removal action in November/December 2006. In February 2008, Mr. Bruton filed a Petition for Review before the Board, the Board granted the appeal, and reversed the removal action.

There is one interesting point about this appeal. Typically, a Federal employee only has 30 days from the date of an Initial MSPB Decision to file their appeal to the full Board in Washington, D.C. Typically, the Full Board is not very lenient when appellants miss their filing deadlines. The Attig Law Firm, PLLC, routinely informs potential new clients of the difficulty in getting a late PFR to be heard by the Full Board, and strongly encourages that appellants get their appeal or petition for review postmarked and sent certified mail as soon as possible within their 30 days deadline.

In this case, the employee filed his appeal nearly 14 months later. The Board granted the appeal based on the fact that Mr. Bruton had new evidence that was not available at the time that the decision was issued.

What was the new evidence? A decision of the Employees’ Compensation Appeals Board (ECAB), that determined in January/February 2008, that the earlier decision of the OWCP was in error, and reinstating Mr. Bruton’s benefits effective some time in 2006.

Here’s the standard for filing an untimely appeal when there is new evidence that may inform the outcome of the case: “the discovery of new evidence may establish good cause for the untimely filing of a petition for review if the evidence was not readily available before the close of the record below, and if it is of sufficient weight to warrant an outcome different from that of the initial decision.” Satterfield v. U.S. Postal Service, 80 M.S.P.R. 132, ¶ 5 (1998) (quoting Boyd-Casey v. Department of Veterans Affairs, 62 M.S.P.R. 530, 532 (1994)).

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have think you may have new evidence that would allow the full MSPB to reconsider a past decision of the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

Another type of benefit to which some federal employees injured on the job are entitled is called a schedule award.  Surprisingly, many employees that call our office to discuss their OWCP case are not familiar with, or have never heard of, a schedule award.

A schedule award is payment by OWCP for a permanent loss (or loss of use) of certain body parts.  (OWCP calls the body parts “members”).  Payment is made for a specified time period based on the degree of the impairment.   (The time period is initially defined by a statutory schedule, hence the term ’schedule award’).

Here are some examples of the time period of payment for certain “members” - i.e., body parts:

• Arm - 312 weeks
• Leg -  288 weeks
• Eye -  160 weeks

So, if because of an on-the-job injury, you suffer total loss of use of your arm, you may be entitled to a payment of 2/3 (or 3/4) of your pay for 312 weeks.  Click on this link to see the full schedule which is listed in 5 U.S.C. 8107.

Not everybody will suffer a total loss of use of a body part.  Some people experience only a partial loss of use that will be permanent.  This occurs very commonly with certain injuries such as carpal/cubital tunnel, and other joint or musculo-skeletal injuries or diseases.  How does OWCP calculate the schedule award benefit?

First, you will need to tell OWCP that you have reached what is called MMI - Maximum Medical Improvement.   Only your doctor can make this determination.

After you reach MMI, you will want to have your doctor prepare a report assessing your impairment rating.  To do this, your doctor MUST use the AMA Guide to the Evaluation of Permanent Impairments (5th Edition), and must make specific references to the pages, tables and charts that (s)he relied on in reaching her conclusions about the degree of your permanent impairment. This impairment rating must also fix the date that your loss of use became permanent, and sufficiently describe the character and degree of the impairment so the claims examiner can visualize the permanent loss or loss of use.

Very few doctors are familiar with OWCP’s somewhat onerous requirements for an impairment rating.  In fact, many doctors run screaming when they hear the phrase “Federal Workers’ Compensation” (wouldn’t you, if you could?).   It is advisable to consult with a lawyer familiar with OWCP claims if you need an impairment rating for a schedule award.

Once you have this “impairment rating”, send it to OWCP - not your Agency - with your application for a schedule award (use form CA-7).  If OWCP denies your request, you will have the same appeal rights that you have for any other denied benefit - 30 days to request a hearing and 1 year to request reconsideration.

That’s a schedule award in the proverbial nutshell.  You should know that you cannot get a schedule award for permanent loss of use to your back, brain or heart.  Congress has specifically excluded these parts of your body from schedule award compensation.

It is also worth noting that you cannot receive a schedule award payment at the same time you are receiving disability benefits (wage loss compensation) from OWCP.  If you accept a schedule award, your wage-loss will stop while the schedule award is paid. If there is still a loss in earning capacity after the schedule award is paid out, then you will be entitled to request wage-loss compensation again.

While you cannot accept disability benefits (wage loss compensation) from OWCP and OPM disability retirement benefits at the same time, you can receive a schedule award at the same time as you are receiving OPM disability retirement benefits.   This may leave you in a quandry about which benefits to apply for and when.

If you have questions about your eligibility for a schedule award, whether your doctor’s impairment rating will pass OWCP muster, or just questions about which benefits to apply for and when, you can consult with a lawyer familiar with OWCP claims by contacting an OWCP attorney at  the Attig Law Firm.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees. We are providing this information to give you, the federal employee, more information, more knowledge and more power. However, we are not providing you with legal advice by giving you access to this information.

Continuation of Pay (COP) is a benefit available to federal employees who are injured on the job.   This benefit amounts to payment, by the employing Agency, of the employee’s regular pay for up to 45 days while the employee seeks medical treatment.   COP is only available to those employees that suffer a traumatic injury - not those that have an occupational disease.

If you believe you are entitled to COP, file form CA-1 within thirty (30) days of the on-the-job injury.  Your employing Agency will be required to pay COP unless it can “controvert” - disprove entitlement t0 -  the benefit.  An Agency can controvert COP benefits by showing any one thing from the list below:

1. the disability is due to an occupational disease or illness (remember, you can only claim COP for a traumatic injury;
2. the employee served without pay or received only nominal pay;
3. the employee is neither a citizen nor a resident of the United States;
4. the injury occurred off the employer’s premises and the employee was not engaged in authorized “off premises duties”;
5. the injury was caused by the employee’s willful misconduct (used most often when an employee is under the influence of drugs or alcohol at the time of the injury);
6. the injury was not reported on Form CA-1 within 30 days after the injury;
7. the employee first stopped work more than 45 days after the injury;
8. the employee first reported the injury after employment ended;
9. the employee is enrolled a group covered by special legislation (Peace Corps, Job Corps, Youth
   Conservation Corps, work-study program, etc.)

The employer can stop COP in only a limited set of circumstances.  One of those may occur if, prior to the injury, you had received notice of a disciplinary action that might result in loss of wages (suspension, removal, etc.).  The employer may also temporarily (or permanently) stop COP if you haven’t provided medical evidence of a disabling traumatic injury within ten (10) days of making the claim for COP.  Finally, the employer may stop COP if your doctor finds you partially disabled and you refuse (or refuse to respond to) a suitable offer of work.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with federal employee OWCP claims to discuss the facts and law of your particular case.  If you think that you may be entitled to COP, or have questions about COP benefits or any OWCP benefits or claims, contact an attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

By far, this is the most common question that is asked during consultations.  The quick answer is “Yes, you should apply for both if you believe you are entitled to both”.  However, you will not be able to receive both at the same time.

If you are eligible for disability retirement through OPM, then apply for it.  At the same time, if you are eligible for disability compensation from OWCP, apply for it.  If you are granted both you will have to make an election between the two.  If you accept both, and the mistake isn’t caught, it is highly likely that sometime down the road you will get hit with a huge bill from Uncle Sam seeking recoupment of overpaid benefits.

One word of caution - if the Agency removes you from the rolls, you have only one (1) year from the date of separation to apply for disability retirement through OPM.  Do not miss this deadline - as discussed throughout this Blog, the government loves their deadlines, and they stick to them ferociously.  Unless you have legal “good cause” for missing the one-year deadline to apply for OPM disability retirement, you will have forever lost your ability to apply for that benefit.

There are reasons why you may or may not want to accept one or the other.  The biggest advantage of OWCP disability compensation payments is that they are currently not taxed - at least as of the date of this post (December 27, 2007).  There are other advantages and disadvantages you should consider - every situation is a little bit different. Contact a lawyer at the Attig Law Firm to discuss your specific OWCP or OPM disability retirement questions.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees.  We are providing this information to give you, the federal employee, more information, more knowledge and more power.  However, we are not providing you with legal advice by giving you access to this information.

Here’s a scenario that can happen quite frequently.  You are driving a vehicle as part of your government job, and you get hit by another driver.  You file a complain for benefits with OWCP and your injury is accepted as an on-the-job injury.   Can you sue the other driver that hit you and caused the injury?  The short answer is “yes”, but there is information you may need to know before going forward with that cause of action.

First of all, if you believe someone other than the government is responsible for the on-the-job injury, you need to let your Agency and your claims examiner at OWCP know.   Based on the circumstances, you may be able to sue the other driver on your own, or you may choose to assign the claim/lawsuit to the United States.   Failure to do one of these two options could lead to a forfeiture of your OWCP benefits.  The Postal Service is a little different than other federal agencies, so you should research the rules of your particular agency as well.

The tricky part - and one reason that a lot of attorneys practicing in the Personal Injury field don’t often take this kind of claim, is that OWCP rules govern how any recovery should be apportioned between you, the government and your attorney.  Here’s the general way any recovery is apportioned.

• Out of the gross recovery, your attorneys’ fees and costs of suit are taken out first.  OWCP will only allow a “reasonable” attorney fee - traditional rates of 33% - 40% of the gross recovery will, in all likelihood, be considered reasonable.
• Out of the remaining amount, you will be permitted to retain 1/5th , or 20%.
• After these amounts are subtracted,  OWCP will compare the recovery amount remaining to the amount of benefits already paid out to you (called the refundable disbursements).  If the refundable disbursements are less than the amount of recovery remaining, then this amount (called the surplus), and which includes government attorney fees, will be yours to keep.  However, if you are still entitled to any OWCP benefits at the time of the recovery, those benefits will be reduced (or credited) dollar for dollar against the amount of surplus you retain.

A couple of points - if you received Continuation of Pay (COP), you will not be required to pay this back to OWCP (nor will the amount be counted as a refundable disbursement).  This is because COP is not compensation for subrogation purposes.

If your recovery includes recovery for individuals other than yourself (for example, damages recovered for loss of consortium to your spouse), then OWCP has complicated “allocation” rules. These rules are meant to recognize that OWCP is entitled to reimbursement for benefits paid, but also that it would not be just to require you to reimburse the entire recovery.

Third party claims can become very complex, very quickly.  A mistake on your part can have significant negative financial repercussions for you.  It is best to consult with a lawyer who is familiar with OWCP claims if you have questions about a claim of this nature; contact the Attig Law Firm, PLLC, if you would like to consult with an attorney about your OWCP third-party claim

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees.  We are providing this information to give you, the federal employee, more information, more knowledge and more power.  However, we are not providing you with legal advice by giving you access to this information.

Many Federal Employees are also U.S. Veterans with a service-connected disability. What happens when a Veteran with a service-connected disability gets injured on the job - does he/she have to give up the OWCP or VA benefits?

Generally speaking, you can collect both benefits at the same time, as along as the two injuries are completely separate, unless…

1. the on-the-job injury (or, god forbid, death) results from an injury that the VA has held was service-connected; or,
2. when the VA gives a veteran an increased impairment rating due to an on-the-job injury

In the case of Number 2, your election will only be between the increased portion of the VA benefit and the OWCP benefit - not the whole VA benefit.

For example, say you injured your back lifting in the Army. The VA gives you a 30% disability rating. Later, you injure your back lifting heavy mail trays at work as a civilian employee with the Postal Service. You will be required to elect between the increase in VA benefits (30% to 70%) or the OWCP disability benefits. You will not have to elect as to the compensation for the first 30% rating by the VA.

The election between OWCP and VA benefits can be tricky, and can have significant repercussions if you don’t make the election. It is best to consult with a lawyer who is familiar with OWCP claims and/or a VA Benefits attorney or a Veterans Service Organization when making this decision.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.