OWCP AWARDS ADDITIONAL $42,000 IN COMPENSATION BENEFITS TOWARD $75,000 ALREADY AWARDED AFTER APPEAL BY CLAIMANT
Perseverance can pay off and pay off well for claimants in federal workers compensation claims.
In this federal workers' compensation claim dating from 2002, the claimant had injured his back while on the job for a federal agency. He properly and timely filed his federal workers' compensation claim with employer and the Office of Workers' Compensation Programs (OWCP).
The difficulty at the outset with this claim is that the claimant was injured in an unwitnessed slip and fall at work. Further complicating the injury claim was the fact that this injury occurred in a foreign country and the claimant was treated in foreign medical facilities requiring translations of the medical reports.
The OWCP as usual denied the claim for compensation and benefits.
On first appeal to the Employees Compensation Appeals Board (Board) we argued that is a well-settled principle of workers' compensation law and the Board has so held that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes an employee to collapse and to suffer injury upon striking the immediate supporting surface and there is no intervention or contribution by any hazard or special condition of employment -- is not within coverage of the Federal Employees' Compensation Act. Such an injury does not arise out of a risk connected with the employment and is therefore not compensable. However, as the Board has made equally clear, the fact that the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be explained, does not establish that it was due to an idiopathic condition. This follows from the general rule that an injury occurring on the industrial premises during working hours is compensable unless the injury is established to be within an exception to such general rule. If the record does not establish that the particular fall was due to an idiopathic condition, it must be considered as merely an unexplained fall, one which is distinguishable from a fall in which it is definitely proved that a physical condition preexisted and caused the fall. But when the fall is unexplained, and therefore attributable neither to the employment nor to the claimant personally, the risk is neutral, and an injury arising in the course of employment from a neutral risk is compensable. As this was an unwitnessed, unexplained fall it was a "neutral risk" fall and thus compensable.
Subsequently the Board agreed with our arguments and ordered that the OWCP review this claim and accept it for injury and compensation. Upon acceptance by the OWCP we them proceeded to file a request for a scheduled award.
A scheduled award is the compensation due as result of permanent disability involving the loss or loss of use of a member or function of the body, the claimant is entitled to a schedule award for the permanent impairment of the scheduled member or function. Injuries such as back conditions are not covered as a listed impairment and will not warrant a schedule award unless it causes an injury to another listed body part.
We obtained and filed a scheduled award for the permanent injuries to the claimant's legs due to his back injury. The OWCP then awarded the claimant more than $75,000.00 in compensation and medical treatment for life.
However, we argued, this was not sufficient.
The OWCP award was based only on the claimant's base payrate. The OWCP failed to consider and include the claimant's foreign housing allowance and premium pay in his overseas employment.
Once again the OWCP denied same and once again we appealed to the Board. Subsequently and once again the Board agreed with our arguments on appeal and further awarded additional cost-of-living-adjustment (COLA) increases that may have occurred during the underpayment.
As result the OWCP then issued an additional award of compensation to the claimant of more than $42,000.00 bringing his total scheduled award compensation to over $117,000.00, tax free.
Although this claim took almost 10 years to resolve, as can be seen perseverance pays off in demanding what is due to you as an injured claimant in federal workers' compensation claims.
