By Lenin V. Perez
If you are reading this article then you, or the person you are representing, are probably on a medical restriction related to your accepted federal workers compensation claim. As such, your doctor has ordered that you are not able to perform certain job duties or actions during your normal workday due to medical restrictions. What that doctor has not ordered is that you must stop performing actions which you need to execute in order to live your normal daily life.
Actions like carrying groceries, taking out the trash, mowing the lawn, playing with your child, bowling, etc., are all normal off-the-job actions which Federal Workers Compensation Consultants (FWCC) clients have been told by their agencies not to do. The employees have been told that they would be violating their medical restrictions and have their OWCP benefits terminated. However, these actions are, in fact, OK for the worker to do off the job.
How do these agencies discover that the worker is taking out the trash at home and that said action is supposedly against his/her doctor’s stated medical restrictions? They do so by illegally accessing the worker’s CA-17 Duty Status Report and by clandestinely following and videotaping the injured worker. What we intend to outline in this article is why those “daily living” actions are OK. We also intend to show that, in many cases, the agencies, managers, supervisors, Officers of the Inspector General (OIG Inspectors), and investigators are breaking the law by accessing and using the worker’s CA-17 Duty Status Report. Do not submit your CA-17 Duty Status Report to your federal employing agency. Send it directly to your OWCP Claims Examiner in London, Kentucky.
CA-17 Duty Status Report
Let’s start with a brief discussion of the CA-17 Duty Status Report, what types of information are contained on it, and who completes the form. The CA-17 is a form which the OWCP directs both the injured worker’s supervisor and his/her treating physician to complete. It is split into two sections. Side A is completed by the employee’s supervisor. On this side of the form, the employee’s supervisor must specify which physical actions the injured worker’s job entails and the duration of those actions. It specifies how much weight the employee is required to lift and/or carry and if they carry/lift it on an intermittent or continuous basis. It also specifies how many hours per day and per week the employee works and how many hours per day each of the physical activities stated are performed. The form also provides sections for the supervisor to briefly describe how the injury occurred, the body parts affected, and to describe any other actions the employee’s job requires which are not specified elsewhere on the form.
Side B is completed by the employee’s treating physician. On Side B, the physician must:
- specify his/her clinical findings
- state whether the employee’s medical history of the injury corresponds to the information entered in Section A of the form
- provide clinical findings
- provide a diagnosis due to the injury
- state whether the employee has been advised by the doctor to return to work, and, if so,
- can the employee return to his/her regular job duties
If the physician answers “No” to the employee returning to regular job duties, he/she must then proceed to enter the same information regarding specific job activities, as the supervisor did. However, the physician must enter the information specifying if the employee is allowed to perform those activities and, if so, for how long and state how much the activities may be performed on a continuous and/or intermittent basis. The physician also must specify how much weight the employee may lift / carry.
Notice that this form ONLY specifies on-the-job duties and restrictions. It does not mention the employee’s life outside the job. Notice also that the directions on the form state that the supervisor is to complete Section A and then forward the CA-17 to the employee’s treating physician for the doctor to complete Section B. If the supervisor follows these directions properly, the supervisor does not see the employee’s diagnosis, other disabling conditions, or the physician’s clinical findings as these items are to be completed by the physician after the supervisor completes his Section A and sends the form to the doctor. These facts are important to our discussion, as we will show later. Do not submit your CA-17 Duty Status Report to your federal employing agency. Send it directly to your OWCP Claims Examiner in London, Kentucky.
OWCP Form 5c Work Capacity Evaluation Musculoskeletal Conditions
The OWCP Form 5c is also completed by the injured worker’s treating physician, but it DOES NOT contain any information regarding the employee’s:
- clinical diagnosis
- other disabling conditions
- the treating physician’s clinical findings
Like the CA-17, the OWCP Form 5c DOES contain the following information:
- answers to the question of whether or not the employee should return to work, and, if so, can he/she return to his/her regular job duties
- if unable to return to regular job duties, then:
- which activities is the employee allowed to perform
- for how long (for example, walking for 1 hour out of any work day)
- number of pounds able to be lifted and/or carried
Like the CA-17, the OWCP Form 5c only addresses on-the-job activities. It DOES NOT mention any activities related to the employee’s daily living outside of work (such as mowing the lawn, carrying groceries, taking out trash, etc.) The employee’s supervisor does not enter any information on, and has no input into, the OWCP Form 5c whatsoever. The OWCP Form 5c is for the benefit of the employing agency and the employee’s manager(s), supervisor(s), and anyone else who may need to know which on-the-job activities are limited by the employee’s injury, per the treating physician’s assessment.
Why Did We Spend So Much Time Describing the OWCP Form CA-17 and OWCP Form 5c?
The reason we spent so much time describing the OWCP Form CA-17 and the OWCP Form 5c is to illustrate that OWCP Form CA-17 is for OWCP records and OWCP Form 5c is for use by the employee’s supervisors, investigators, agencies, etc. All too often we at FWCC have clients tell us that they were called into their supervisor’s office only to see that their CA-17 was sitting on top of the supervisor’s desk for all who enter to see. We also have clients who have been approached by investigators who proceeded to tell the employee that, because of their injury, the employee is not allowed to kick a ball with their child, or bring the groceries in from the car, or take out the trash, or mow the lawn, etc., and that the injured employee would have his/her OWCP benefits terminated due to fraud if they continued to engage in those activities. We have even had clients who were told by investigators that because of their injury, they should stay in bed and that they would be arrested and charged with fraud if they got out of bed. In many cases, those investigators approached the injured federal workers with the worker’s CA-17 in hand.
Let us be clear about one point: No supervisor, manager, investigator, or employing agency should have access to or possess the injured federal worker’s CA-17 without the express written consent of the injured employee. Doing so without consent is a violation of HIPAA, the Privacy Act, and the injured employee’s civil rights. If the injured employee is approached by anyone who has or had access to his/her CA-17 without the employee’s consent, the employee should immediately file a grievance, file an EEO, and pursue any and all other civil and criminal charges available to him/her under the laws covering such violations. If those same individuals and/or entities need access to the injured worker’s medical restrictions, they are entitled to get them from the OWCP Form 5c.
What Do the Medical Restrictions on the CA-17 Mean?
Medical restrictions listed on both the CA-17 Duty Status Report and OWCP Form 5c are expressly for on-the-job actions or requirements. They do not cover what the employee does when not working. For example, when the medical provider gives an injured employee a five-pound weight restriction, this restriction limits the employee to not being able to lift five pounds repeatedly for eight hours a day, five days a week. This restriction does not bar the injured worker from taking out their garbage once or twice a week or going to the grocery store and bending down to lift a nine-pound gallon of milk. The medical restriction only applies to what the employee can perform at the work place for eight hours a day repetitively for five days a week.
If the injured employee can no longer perform his/her normal everyday life functions, he/she will qualify for Additional Compensation for Services of an Attendant, which comes under 5 U.S.C § 8111. This allows the Secretary of Labor to pay up to $1500.00 per month to help injured employees with their everyday living functions, such as (but not limited to) going to the grocery store, cleaning the house, cutting the lawn, and picking up the newspaper if they cannot bend over.
Some Examples from Relevant Federal Workers’ Compensation Cases
The following are some Federal Workers’ Compensation cases which will illustrate the points made in this article.
- A federal employee went to the mall with his wife and was carrying a bag while leaving the mall. He had a five pound weight restriction on his CA-17 and had to go through the grievance procedure to get his rights restored after two inspectors showed a video of this to his medical provider, who then said he was violating his medical restriction. The employee had to produce the receipt which showed that the only things he was carrying in the bag were three bras which his wife had purchased. Ultimately, he was found not in violation of his medical restriction.
- A federal employee had medical restrictions after major shoulder surgery and was followed by two inspectors for several months. They videotaped the employee kicking a ball back and forth with his son and taking out the garbage, amongst other daily life activities. The inspectors illegally visited his medical provider and showed only parts of the video to the medical provider, not informing the employee of the existence of the video or letting him view the entire video.The inspectors lied to the medical provider, telling him that the employee had chopped down a tree. This led the treating physician to believe that the employee was in violation of his medical restrictions. The employee was then fired and his federal workers’ compensation benefits were terminated. When the case went to arbitration, the medical provider stated that the claimant was required to lift his arm at therapy daily using stretch bands and also was required to do this on his own at home. The medical provider further stated that kicking the ball with his feet did not constitute any violation of his work restrictions and neither did carrying the garbage to the street.The agents also told the treating physician that the claimant had chopped down a tree, which led the treating physician to believe that this was also a violation of the claimant’s medical restriction. However, upon viewing the edited video during arbitration, the treating physician saw where the claimant had merely used a chain saw to cut a rotten tree limb that had fallen on the claimant’s driveway. At this point the treating physician became angry and stated that the agency inspectors led him to believe that the claimant had used an axe to chop down the tree. He further stated that the medical restrictions given to the claimant were restrictions for his work duty status, eight hours a day repetitively for five days a week. In the end, the arbitrator gave back the claimant’s job plus all the back pay, including overtime pay equitable to the other employees that worked for that period of time. His OWCP benefits were also reinstated and he collected a large schedule award for his shoulder. This claimant is still employed by his agency.
- A federal employee who was out of work with medical restrictions was followed for several months by inspectors and OIG investigators. The employee was removed from his employing agency for fraud. The video tape the inspectors made showed this employee carrying three large pizzas in boxes to his apartment. The inspectors claimed this violated his medical restrictions without even knowing how much the pizzas weighed. They showed the medical provider the video, without employee knowledge, thereby violating the direct contact rule with the medical provider.The medical provider stated that the claimant had not violated any medical restrictions and that those were normal daily living functions. The medical provider further stated that the restrictions were only for working eight hours per day, five days a week, and that the claimant had a right to his everyday functions as long as he did not perform them eight hours per day, five days a week. The employee ultimately won the case.
- In an ECAB decision, Docket Number 11-863, the claimant’s OWCP rights were terminated due to fraud and the ECAB found that the OIG and postal inspectors, all managers for the U.S. Postal Service, had violated the claimant’s rights by visiting the claimant’s doctors several times. They showed the doctors edited videos of the employee allegedly violating his medical restrictions. The inspectors provided no explanation as to how videos were edited, or who performed the editing. The videos were not shown to the medical providers in their entirety but in a post-edited version.The medical providers were informed by the inspectors that this was a secret fraud investigation and that the medical providers were not allowed to inform the claimant of the inspectors’ visit. The claimant was not informed of the existence of the videos, was never shown the videos, and was not given the opportunity to comment on the videos prior to them being shown to his numerous medical providers. All of these actions were found by ECAB to be against OWCP rules and regulations.The ECAB decision in this case reinstated the employee’s OWCP benefits, reprimanded the agents for both having direct contact with the claimant’s medical providers and for keeping the doctor visits secret, and also for neither giving the claimant a copy of the video nor allowing him to make comments prior to showing the video to anyone. The agents were also told by ECAB that they edited the videos without any explanation as to why they were edited, who had edited the videos, or what exactly was cut from them. Finally, the claimant’s rights were reinstated fully and no fraud charges were ever filed.
Why Are They Doing This to You?
You might be wondering why the agencies are pursuing and harassing you in an attempt to prove that you are violating your medical restriction. The reason is that lost workdays due to on-the-job injuries directly influence the federal agency’s budgets and the supervisors’ bonuses.
The employing federal agencies distribute annual performance bonuses to supervisors, managers, postal inspectors, OIG inspectors and other inspectors. These bonuses are based on several factors. One of the factors considered when doling out bonuses to these management employees is how much agency costs for paying federal workers’ compensation benefits have been lowered during the year. This fact alone creates an incentive for supervisors, managers and inspectors to bend the rules, break the rules, and even break the law in their pursuit of a bonus at any price.
And really, there is no price for the rule breakers and lawbreakers engaging in this as it doesn’t cost them personally anything for engaging in such illegal and unethical activities. The federal agencies don’t care how much money is wasted in all of this. They are only concerned with getting their worker’s comp costs down because it has a direct effect on their annual performance bonus. So time and again, these management employees break rules and laws in pursuit of their annual performance bonuses and the agency quietly eats all the additional costs of litigation and arbitration caused by the bad behavior of its managers.
This is clearly an example of government waste and abuse. These supervisors, managers and inspectors waste millions of dollars of government funds violating worker’s rights, breaking rules and laws in the process, all for their own personal gain because their performance bonus is partly based on lost work hours due to federal workers’ on-the-job injury claims. Most of this waste of federal funds is in vain because they are breaking rules and laws, and there is no accounting or cost for this waste because the government only cares about lost work hours, not waste of government money.
The one sure way to end this federal government waste and abuse is to remove the lost work hours criterion from the criteria used to award performance bonuses to these self-serving, rule and law breaking supervisors, managers and inspectors. While this would lessen the amount of performance bonuses given to these few federal employees, it would save the federal government millions of dollars every year in the waste and abuse caused by this self-enrichment behavior. It also would stop the continuing harassment-for-profit suffered by the already injured federal workers, whose FECA and OWCP rights and benefits are being denied by the government waste and abuse generated by these other self-serving federal employees.
Unfortunately, in this type of corrupt federal agency mismanagement and criminal activity, the injured federal worker is nothing more than pawn in the path of profit-minded, law-breaking government managers, supervisors and inspectors. Despite the overturning of their actions and the refunding of employee compensation benefits caused by the actions, the government agencies continue to engage in such activities because there is a financial incentive for them to do so (annual performance bonuses) and no real consequences for them doing so (the employing federal agency eats all the costs of their misdeeds.)
This is why they are doing it to you. They have much to gain and nothing to lose as the deck is stacked in their favor and the government is buying their chips. This ultimately means that it is in both the agency’s and supervisor/inspector’s best financial interest to keep to an absolute minimum the number of lost work days due to on-the-job- injuries, by any means necessary.
What Should You Do?
Here are some actions you can take which will help mitigate your exposure to the scenarios discussed in this article:
- If you find any manager, inspector, OIG agent, or other employee of the agency having your CA-17 form, immediately file a grievance, file an EEO, and pursue charges or file civil lawsuit. The person in possession of your CA-17, and their employing agency, are violating your civil rights, the Privacy Act, and HIPAA. By law, the only form they are allowed to have is the OWCP Form 5c.
- When you are given medical restrictions for your job duties, you should review those restrictions with your medical provider, asking him/her what you can and cannot do in your everyday living. Be sure to let them know what you do off the job and ask if those actions would violate your medical restrictions in any way. If your medical restrictions do not allow you to perform your everyday functions, then you should apply for Attendant Care with your claims examiner citing 5 U.S.C. § 8111 as previously mentioned in this article.
- If, because of your on-the-job injury, you develop anxiety or depression and fear leaving your house because of the fear of being accused of violating your medical restrictions, then you should discuss with your medical provider about documenting this in your record, and ask your physician about referring you to a psychiatrist. You may want to file a consequential injury claim, adding depression, anxiety, and/or paranoia to your OWCP claim.
- NO ONE, other than the U.S. Department of Labor (DOL), has the right to see any of your medical reports without your express written medical release. No manager, no supervisor, no OIG inspector or other investigator, nor anyone else can demand to see any of your medical records except for the OWCP Form 5c. So, if you are told that you must bring in a medical report or CA-17, simply say “NO” and tell them you will provide your OWCP Form 5c, which is all they are entitled to see and/or possess.
- If you are approached by a Postal Inspector or other investigator, you need to tell them the following:
- I want an attorney or representative before I speak to you.
- I do not want to talk to with anyone about my case.
- I do not want to answer any question or reply to any charges without my representative or attorney present.
- I do not want to do any tests, do not want my property searched, and do not want to release any medical record or medical releases to anyone.
- I do not waive any of my Constitutional Rights.
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Call Federal Workers Compensation Consultants today for a free initial consultation at 813-931-1984
Federal Workers Compensation Consultants
Workers Compensation and Disability Retirement Specialists
9639 N. Armenia Avenue
Tampa, Florida 33612
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