Injured feds: Only 1 year is guaranteed

Federal employees who must leave their jobs because of injuries covered by workers' compensation benefits cannot expect their agencies to hold their jobs for them for more than a year while they recuperate. But agencies must at least give these employees "priority consideration" for equivalent jobs that open in the future.

That was the upshot of a case involving Deonne New, a GS-3 secretary with the Department of Veterans Affairs. In May 1987, New aggravated a pre-existing work-related degenerative joint disease that prevented her from working. Two months later she applied to the Labor Department's Office of Workers' Compensation Programs (OWCP) for workers' compensation benefits. And in August 1987, her physician informed the VA that New could return to work for four hours a day if she was given a parking space close to her office and if her work space was redesigned to prevent a recurrence of her injury.

By Sept. 30, 1987, the VA had done most of what New's physician recommended. Based on those changes, the department ordered New to return to work by Oct. 7. New refused because she believed that the VA's accommodations did not conform to her physician's recommendations and that her health would be endangered.

In February 1988, the VA fired New, citing two reasons: her refusal to return to work for four hours per day after Oct. 7, 1987, and her poor attendance record dating to May 29, 1984, which the VA said indicated she was unreliable and of marginal value to the agency.

In December 1989, the OWCP awarded New retroactive benefits that covered the period between July 1987— when she filed her workers' compensation claim— and Oct. 14, 1987. Despite having been terminated by the VA, New could and did claim benefits from the OWCP for continuing work-related injuries. She claimed that her injury persisted, and she sought additional benefits from the OWCP for the period from Oct. 15, 1987, to Oct. 2, 1990. The OWCP denied this claim and determined that New was fully recovered as of Oct. 2, 1990.

In February 1991, New— apparently believing she was once again able to perform her old job— asked the VA to restore her to her former position. She claimed she was entitled to priority consideration for restoration because she was separated as a result of her compensable injury. But officials at the VA contended that they did not have to restore her because she was removed for cause and therefore was not entitled to priority consideration for restoration. She appealed the VA's refusal to the Merit Systems Protection Board (MSPB), which denied her claim in August 1991.

The case takes a few twists and turns at this point. In May 1992, New changed her strategy and filed a complaint against the VA for gender discrimination and disability discrimination in the U.S. District Court for the Eastern District of Pennsylvania. The court dismissed her complaint, and New appealed to the 3rd U.S. Circuit Court of Appeals.

On July 14, 1994, while New's appeal was pending with the appeals court, the OWCP— realizing that it had never made a formal determination on her original complaint against the VA— reversed its decision and awarded New partial benefits for the period from October 1987 to October 1990. The appeals court vacated the decision of the district court and ordered the case remanded back to the MSPB for a determination as to whether the OWCP's revised award materially affected the MSPB's prior decision.

The MSPB then determined that it lacked jurisdiction over New's appeal because she was removed because of her unexcused absence rather than for a reason substantially related to her injury. It said the VA was not required to await the OWCP's suitability determination before charging her with disregarding orders to return to work. The ruling did not deal with the issue of whether the second reason cited by the VA for New's removal— her poor attendance record— was substantially related to her injury.

New again went to the Court of Appeals, which ruled that the MSPB's approach to the problem was fundamentally flawed (U.S. Court of Appeals for the Federal Circuit; Case 97-3152; Deonne R. New v. Department of Veterans Affairs, April 27, 1998). The court noted that an agency's obligation to restore an individual to her last position following her recovery from a compensable injury depends upon the length of her recovery period. An employee who fully recovers within one year is entitled to return to her former position or an equivalent one without condition, the court ruled. But in cases such as New's, in which recovery takes more than one year, an agency is required only to give the employee priority consideration for restoration to her former position or an equivalent one, according to the court.

The court said both parties have obligations in situations such as this. Not only must the employing agency make an effort to place a recovered employee, the employee has a responsibility to return to work as soon as she is able. It said a partially disabled employee who refuses to work after a suitable job is offered to her is not entitled to compensation.

The court also didn't buy the MSPB's argument that New was obliged to obey the VA's order to return to work, even if she had legitimate concerns about her health. The court said an employee is required to comply with instructions from her agency unless obedience would place her in a clearly dangerous circumstance— as was the case with New. The court held that when an agency removes an employee with a compensable injury solely for refusal to return to work in the absence of a suitability determination by the OWCP, a sufficient connection exists between the injury and the removal to entitle the employee to priority consideration for restoration.

The court agreed with New that such a connection existed in this case, giving the MSPB jurisdiction over the appeal and entitling New to priority consideration for restoration.

The ruling seems reasonable because it could take an employee years to recover from an injury. No one would expect an employer to keep a job open. But with priority consideration, the agency must enter the employee's name on its re-employment priority list. It doesn't guarantee a job, just a chance at one.

Although I don't have a score card, I believe this meant the case should go back to the MSPB. Not exactly the best of outcomes, but it gave New a new chance.

Because the court rejected New's removal based on her injury, the VA will probably rely on its argument that it fired New because of her poor attendance record. What are the chances that New's appeal will be upheld? Not very good, I suspect. A pity, after all this effort.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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