USDOL REQUIRES INJURED FEDERAL WORKER TO ATTEND MEDICAL EXAM OVER 200 MILES AWAY

In this case, the injured federal worker (apparently unrepresented on her appeal) had filed a claim for on the job injury to her arms while employed at Tinker Air Force base in Oklahoma. The claim was accepted by OWCP. The worker’s medical doctors found that the claimant could not return to work due to her ongoing injury. A second opinion doctor retained by the OWCP stated the worker could return to work. The OWCP asserted that a conflict in medical evidence existed and to resolve this conflict, the worker would be required to attend an third “independent” medical exam by another doctor hired by the OWCP. The OWCP doctor was located in Dallas, Texas (the OWCP’s home city for its district office), and more than 200 miles distant from the worker. The worker protested that the OWCP’s choice of their “independent” doctor was improper and biased. The worker showed that there were over 400 Board certified specialists located within her own zip code area in Oklahoma. Nonetheless, the worker attended to the exam. The examining doctor for the OWCP then found the worker could return to work and the OWCP terminated the worker’s OWCP compensation benefits. On appeal the worker again argued that the OWCP’s choice of the third “independent” doctor improperly bypassed doctors located closer to her home. The US Department of Labor disagreed and upheld the termination of her benefits. The US found that since the worker did not “object” to the examination on the record, then the worker’s allegations of improper selection of the third doctor by the OWCP were “insufficient”. The termination of the worker’s compensation benefits was upheld as proper. ECAB 06-278, 08/08/2006

WORLD TRADE CENTER EMERGENCY FIREFIGHTER DENIED PAST COMPENSATION BENEFITS

The United States Department of Labor Office of Workers’ Compensation Programs (OWCP) has denied partial injury compensation benefits to a Narragansett, Rhode Island firefighter injured while he was providing emergency care at the World Trade Center Bombing. In that case, the firefighter, who had no legal representative or counsel, claimed his injuries in the WTC bombing relief efforts prohibited him from working from October 2001 through August 2003. During that time period, while he waited for the USDOL to process his claim, the Town of Narragansett allowed him to continue to receive wages and use sick and vacation leave time donated by fellow firefighters. Although the USDOL stated that the firefighter could receive OWCP compensation from August 2003 and forward, the firefighter could not receive any OWCP compensation from October 2001 to August 2003. The OWCP found that since the firefighter was in receipt of sick and vacation time donated by others and wages from the Town of Narragansett, he would have to first pay all that time back before he could be considered for OWCP benefits. The OWCP also found that the firefighter’s request was filed more than one year after the last OWCP decision denying his claim, thus his request was out of time. 58 ECAB 06-1148, 11/30/2006.

OLDER FEDERAL EMPLOYEES HAVE NO PROTECTION FROM AGE RELATED RETALIATION

Older federal employees who allege they have suffered retaliation by their federal employer due to their age have no rights under the Age Discrimination in Employment Act (ADEA).

A 45 year old postal worker (not a client of this office) in Puerto Rico claimed she was subject to retaliation and discrimination on the basis of her age by the USPS. She filed suit against the Postal Service under the ADEA.

The United States Court of Appeal for the First Circuit issued its decision last week finding that the federal employee had no right to sue for retaliation under the ADEA. The Court found that although the ADEA does prohibit “discrimination” against persons due to their age, there is nothing in the ADEA that prohibits a federal employer from acts of “retaliation” against federal employees due to their age. (The Court found that the ADEA does prohibit private employers from retaliating against private employees due to their age). The Court simply ruled that based on the language of the ADEA, the United States Congress “intended” for the ADEA to prohibit age-related retaliation by private employers, but not by federal employers. Gomez-Perez v. USPS, No. 06-1614 (1^st Cir. 02/09/07)