February 2003
Recently, while in Washington, DC, I had the chance to visit the Holocaust Museum, and see first hand the “final solution” of the Nazi leadership toward several hated minorities, the Jews, the Gypsies, and the homosexuals. But for me this was a déjà vu experience in a sense. Without minimizing in the slightest the awful sufferings of those victims of the holocaust, I do see very similar processes of prejudice, stereotyping, and even malicious hatred on display in too many USPS supervisors and managers toward our many legitimately ill and injured letter carriers.
Of course there are a very few instances of outright compensation fraud, and demoralized people do not rush back to work even from valid injuries. But the overwhelming number of compensation claims are proper and these injured workers deserve fairness in treatment.
Limited and Light Duty Defined
Limited duty is an employee work status when an injury or illness has been deemed to be job related. This status is extended conditionally in uncontroverted CA-1 claims and is established retroactively when CA-2 (occupational illness) and CA-2a (recurrence) claims are approved by the Department of Labor.
Light duty is an employee work status when an injury has been deemed non job related or pending adjudication by the Department of Labor.
The distinction between limited duty and light duty is crucial because employees are typically (but not always) offered work within their medical tolerances when on limited duty. This is largely due to the liability of the Postal Service for compensation costs charge back to the USPS when the Department of Labor approves a claim and charges the costs (plus a surcharge) back to the Postal Service.
Although the FECA offers Federal agencies the option of not employing injured workers while OWCP rehabilitates and retrains these workers and even tries to place them in alternative jobs, the Postal Service is required under Handbook EL-505 to furnish limited duty work under their limited duty program to employees within their medical work capacity.
HBK EL-505, INJURY COMPENSATION, DECEMBER 1995 LIMITED DUTY PROGRAM MANAGEMENT Limited Duty Assignments When an employee is able to return to work in a limited capacity... Obligation: Requirement for Written Job Offers FECA requires that the USPS notify the employee immediately of the description of the job and its physical requirements and of the date the job will be available. To facilitate early return to work, the USPS may contact the employee by telephone, but must provide written confirmation of the job’s availability as soon as possible thereafter. (20 CFR (b) (1) and (d) (1) (2)) (ELM 546.62) 7.4 Offering a Limited Duty Assignment — ICCO If medical documentation indicates the employee is capable of performing limited duty, do the following: — Identify a limited duty assignment (see Exhibit 7.1, Limited Duty Assignment Guidelines). Ensure that the limited duty assignment is consistent with medically prescribed physical restrictions. Consult with the OHNA, contract physician, or the treating physician if you have any doubts (see Exhibit 6.1, Sample Letter: Limited Duty Availability).
Limited Duty Determinations
Local USPS management in the Detroit District has come up with an ingenious way of trying to evade the limited duty obligation. They just send such employees with approved OWCP claims to USPS medical contractors, who almost invariably find the injured worker amazingly recovered. Local human resource management then issues the injured worker an ultimatum letter, typically stating that: It has been determined by a physician that you have fully recovered from your occupational injury of xx/xx/xx, and that your limited duty (959) status will terminate on xx/xx/xx.
Forms CA-2a and CA-7 are typically enclosed. The injured worker can either return to work against medical advice or file the CA-2a while simultaneously requesting light duty under the provisions of Article 13.
Note that the Postal Service Human Resource Manager, not OWCP, is adjudicating the claim. Our argument is this: If OWCP is the proper authority for administrating the FECA, not some USPS management official, then only OWCP can find an injured worker recovered. Below are CFR 20, Ch. 10.1 and 10.5(x), two law cites that assist the advocate in presenting the issue effectively with OWCP.
If the USPS revokes an injured worker’s limited duty job offer, then the affected employee can properly claim recurrence of disability with Form CA-2a under the term of 20 CFR 10.5(x), due to the withdrawal of accommodating work. Since this USPS action strikes at the very authority of OWCP to administer their program, we are prevailing in these CA-2a appeals, to date.
20 CFR § 10.1 What rules govern the administration of the FECA and this chapter?
In accordance with 5 U.S.C. 8145 and Secretary’s Order 5–96, the responsibility for administering the FECA, except for 5 U.S.C. 8149 as it pertains to the Employees’ Compensation Appeals Board, has been delegated to the Assistant Secretary for Employment Standards. The Assistant Secretary, in turn, has delegated the authority and responsibility for administering the FECA to the Director of the Office of Workers’ Compensation Programs (OWCP). Except as otherwise provided by law, the Director, OWCP and his or her designees have the exclusive authority to administer, interpret and enforce the provisions of the Act.
20 CFR § 10.5 What definitions apply to these regulations?
10.5(x) Recurrence of disability means an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without an intervening injury or new exposure to the work environment that caused the illness. This term also means an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct, non-performance of job duties or a reduction-in-force), or when the physical requirements of such an assignment are altered so that they exceed his or her established physical limitations.
ELM 546.141 Violations
Local management is now beginning to give limited duty employees “fixed schedules” instead of rotating days off. One would think that with reduced hours and closed businesses that the employees would be surplus to the needs of the service on Saturdays. However, the fixed days are usually mid week days off (ie. every Wednesday, etc.), leaving the employee with no three-day weekend, ever.
We are now grieving these actions, as the ELM § 546.141 states that such assignments should not be needlessly disruptive and should correspond to the usual hours of work of the employee if possible.
Clearly changing one’s day off to a fixed schedule is a disruptive change in the work schedule and work hours of the employee, and it is hard to fathom how the assigned work the employee was doing conveniently disappears every Wednesday. The fair question to ask management is: Why is this schedule change necessitated by the business conditions of this office? It is hard to escape the conclusion that any injured employee who wants week-ends off now and then will just have to recover or do without. I cannot promise we will win this grievance but in my opinion we need to take a very strong stand or this practice will spread.
Management can also violate ELM 546.141 in assigning work in a distant location, on a midnight tour, or in duties out of our craft when the carrier can throw or even deliver mail.
Grieve all these violations under Article 19, citing the ELM. Section 546.141. Seek out-of –schedule overtime in remedy.
ELM 546.142 Obligation
When an employee has partially overcome the injury or disability, the Postal Service has the following obligation:
a. Current Employees. When an employee has partially overcome a compensable disability, the Postal Service must make every effort toward assigning the employee to limited duty consistent with the employee’s medically defined work limitation tolerance (see 546.611). In assigning such limited duty, the Postal Service should minimize any adverse or disruptive impact on the employee. The following considerations must be made in effecting such limited duty assignments:
(1) To the extent that there is adequate work available within the employee’s work limitation tolerances, within the employee’s craft, in the work facility to which the employee is regularly assigned, and during the hours when the employee regularly works, that work constitutes the limited duty to which the employee is assigned.
(2) If adequate duties are not available within the employee’s work limitation tolerances in the craft and work facility to which the employee is regularly assigned within the employee’s regular hours of duty, other work may be assigned within that facility.
(3) If adequate work is not available at the facility within the employee’s regular hours of duty, work outside the employee’s regular schedule may be assigned as limited duty. However, all reasonable efforts must be made to assign the employee to limited duty within the employee’s craft and to keep the hours of limited duty as close as possible to the employee’s regular schedule.
(4) An employee may be assigned limited duty outside of the work facility to which the employee is normally assigned only if there is not adequate work available within the employee’s work limitation tolerances at the employee’s facility. In such instances, every effort must be made to assign the employee to work within the employee’s craft within the employee’s regular schedule and as near as possible to the regular work facility to which the employee is normally assigned.
Taking Preferred Duty Assignments
When an employee with a prior bid assignment then becomes a limited or light duty carrier, management cannot then attempt to apply an arbitrary, one-year rule or any other arbitrary time window. Step 4 Decision M-1219 is controlling, and establishes that whether an employee is disabled and may therefore be removed from a bid assignment is a matter of fact and should be resolved on a case by case basis, and states that there is no predetermined period of disability after which an employee may be automatically considered permanently disabled.
Concluding Remarks
We need to grieve contractual abuses as relentlessly as management is attacking the injured. Cite Article 19 for handbook violations and Article 21, Section 4, Injury Compensation for management acts in conflict with compensation law. We must help our members win deserving claims before OWCP.
The real solution to the problem of injured workers is for the Postal Service to seriously dedicate itself to safety in the workplace. Until that day comes, please do not abandon our injured Union Brothers and Sisters!
