IS THERE A CRACK IN THE WALL PROTECTING THE US DEPARTMENT OF LABOR FROM BEING SUED?

The United States currently has about 3.5 million employees on its payrolls. These employees include postal workers, military base civilians, federal agency clerks, federal court clerks and judges as well as persons who serve on Grand Juries, who are members of the Civil Air Patrol, ROTC, Peace Corps, Job Corp, Teachers Corps, certain law officers, and various other classes of persons who have provided service to the United States.

In 1916 the US Congress enacted the “Federal Employees Compensation Act” (FECA). This almost century old law provides the sole remedy for these millions of civilians should they be injured, diseased or killed while working for the United States.

And by this ancient federal law, should any of these American civilians be injured, diseased or even killed on their federal jobs, they and their families have no right, whatsoever, to sue the United States, or to have their claims heard or reviewed by any Court of law or by any official (e.g. Congressman).

Their sole remedy lies at the mercy of the FECA as administered by the US Department of Labor. The Department of Labor, as run by the Secretary of Labor Elaine Chao, a current Presidential appointee, answers to no Court and answers to no Congressional office, as to how it manages and oversees billions of taxpayer dollars each year for the FECA program. The Department of Labor answers to no Court or official as to how it decides who among thousands of federal employees injured each year will receive or be denied compensation benefits. As result, injured federal civilians and their families can literally be held hostage for years and decades by the Secretary as the civilians wait for the Secretary to decide whether or not to pay any compensation benefits. It is not uncommon for these federal employees and their families to lose their homes, cars, and jobs while waiting years for the Department of Labor to process their compensation claims; all without being afforded any of the same basic constitutional rights now routinely provided to illegal aliens who are similarly injured while working illegally in this country.

However there may be a crack in the wall of this denial of due process rights to American federal civilian employees. In 2003, Joseph Frushon, a federal employee was injured on his job. He promptly filed his claim under FECA as required and sought medical treatment for his severe back injury. Over the next year and more, Frushon and his physicians then filed multiple requests with the Department of Labor for needed medical treatment. The Department of Labor routinely ignored or denied his requests for medical treatment. As a direct result Frushon then incurred much more severe, permanent damages to his back which then compounded into heart and other medical problems. The Department of Labor continued to ignore his claim.

In 2005, Frushon filed a federal court action in Pennsylvania against the Department of labor alleging the Department's negligence in processing his FECA claim resulted in much more severe damages to himself and his family. The Department of Labor responded, as expected, by asking the Court to dismiss the claim as federal law prohibited Frushon from any basic rights to sue.

The Federal Court acknowledged that the ancient FECA law, still on the books, denied Frushon and millions of Americans civilians from basic right to sue their federal employer for their on the job injuries. The federal court also acknowledged that the Secretary of Labor, holds full and final say without any Court or Congressional oversight, over who among the injured will receive benefits and who will not. As such the federal court ruled that Frushon had no right to sue for negligence of the Department of Labor in handling his federal workers compensation claim as the Secretary of Labor had not yet issued a final decision in his claim.

However, the Court went one step further and refused to dismiss Frushon’s claim. The court instead placed his suit on hold and found that Frushon could later refile his negligence suit if the Secretary of Labor subsequently issued a decision finding no coverage under FECA. If the Secretary of Labor found that Frushon’s claim was not covered under the FECA then Frushon could proceed with his negligence action against the United States.

What this means is that there now appears a crack, admittedly very narrow, but capable of widening, in the defensive wall surrounding the Secretary of Labor and the US Department of Labor in their handling of federal workers’ compensation claims. Although millions of Americans and their families are still denied by ancient federal law, all rights of basic due process should they be injured, diseased or killed on their jobs while employed by the United States, they may still be able to proceed against the United States if the Secretary of Labor finds their injury is not covered by FECA. In all cases a final coverage determination by the Secretary is necessary before a federal employee’s negligence claim may proceed.