Help with my apeal needed

[billpro]

(02-11-2008 11:57 AM)richard.kurt.mariani Wrote:  I suffered severe head, and spinal injuries while carrying out necessary repairs on my house while assigned on orders to Germany. The resulting complications, and further injuries suffered during Operation Iraqi Freedom have resulted in my early retirement because of disability from Federal Service. The house I resided in was built in the 1950`s and was in danger of falling on our heads and I was on the car port roof doing some work hoping to bring the cost of the repair down by reducing the time spent by the workers on the job. Initially it was in doubt whether or not I was entitled to LQA because the house was given to me by my mother. It was eventually decided that based on existing precedents I qualified for LQA. The fact is if I had not I could not have afforded the renovations to make the house inhabitable and would have been forced to purchase a house at government expense and that would have been enormously more expensive for the Government.
I was assigned to Germany on Government Orders as a GS employee. The U.S. Department of Labor Publication CA-810 (Rev. Feb. 1994) “A Handbook for Employing Agency Personnel” Chapter 3-4 Performance of Duty (4) Agency Housing. States “An employee is covered if injured during the reasonable use of premises which he or she is required or expected to occupy, and which are furnished or made available by the agency. ………..
GS employees and married soldiers often occupy homes they rent or purchase at U.S. Government expense. They due so pursuant to the orders that brought them to that location. It is irrelevant whether or not a government official gave them the keys to the premises prior to moving in. In fact in most cases the GS employee and married soldiers find and choose their quarters on their own and are not directed or ordered to occupy specific quarters. So it is not germane whether I occupied house A, B, or C and totally irrelevant how I came to select these quarters. The only thing germane is that I would not have been in Germany and would not have injured myself so grievously had I not been there pursuant to government orders. Since I received LQA while at those quarters and have to live somewhere close to my duty station it is where I was expected to live, was made available by my employer.

The OWCP denial is based on easily refutable statements to wit:
Excerpts from the OWCP Denial of Claim case number 7004660.

“The employee was not required or expected to occupy the quarters where the injury occurred.” Response: Was I supposed to commute from Merritt Island Florida to my place of duty in Germany?

The employee received a Living Quarters Allowance and chose his own place of residence. Response: Yes, I received LQA, and chose my residence, just like all the other GS employees living in Germany. All civilian employees choose, we are not directed or told where we have to live. We are expected to find a location within reasonable commuting distance.

“The employee chose to occupy a house he inherited from his mother.”
Response: This is not an accurate statement. My mother, who is alive and well, gave me this house that she had inherited and it just happened to be within a reasonable commute from my duty station. It was in need of over $100,000.oo in repairs to make it habitable. How I obtained my quarters, is by State Department precedent, completely irrelevant.

“The employee owned the property that he was injured on…the agency did not provide the quarters for the employee…The agency did not provide the quarters for the employee…”
Response: The fact that the agency paid my electricity and water bills and the receipt of LQA is the proof that the agency did provide the quarters. Or is OWCP going to go on record as denying all future claims from GS employees who suffered injuries while receiving LQA unless they meet the litmus test of having been ordered by someone from their agency to move into house A instead of house B. Or to purchase or rent house A instead of house B. This does not pass the common sense or reasonability test and I am sure would violate the rights and personal liberties of the persons concerned and be a case of undue influence, or abuse of the supervisor employee relationship at a minimum.

“In view of the fact that you were not in TDY status, but a permanent employee in an overseas location, were injured on your own private property and the employing agency did not furnish or make available the house you were using as your residence your injury is not considered to have arose out of and in the course of employment.”
Response: I was a stateside hire. That is, I moved overseas at the behest of the Government and the government was responsible to provide for housing or at least make the funds available to obtain housing which I did. Hence it was housing that I had directly as a result of Government employment and had to have. I would have still been living happy and healthy in Merritt Island Florida had not I been hired and given orders to report to Germany where my agency authorised me and paid me to live in a house that was substandard and in need of major repair. Whether the housing I eventually found was Government owned, leased, rented or bought buy me from funds provided by my agency should not matter. Or is the OWCP saying the Government is only liable for injuries on a U.S. base or Government property. That contradicts the letter and spirit of the Department of Labor Publication CA-810 (Rev. Feb. 1994) “A Handbook for Employing Agency Personnel” Chapter 3-4 Performance of Duty (4)

“Therefore, based on these findings, your claim is denied……..”

Who can best advise me on how to appeal this decision? Which is the best route, Hearing? Reconsideration? Review by the ECAB? Should I hire an attorney? Is there an attorney in Germany who specializes in these cases?

Help Help Help, thanks Rick Mariani Tel. 011 49 6703 961749

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Rick

I notice that you posting is fairly old so my input probably won't do you any good. Be that as it may, I'll give you my input just in case there is some possibility that it might be useful.

Let's start with the bad news. You probably do not have any chance whatsoever of prevailing in any forum available to you. That does not mean that you should drop your case. As long as your case is not closed, you have some, even if very little, hope of obtaining a favorable ruling. There is no hope if the case is closed.

You can buy time by sending your case up to ECAB. If you choose that route, you need to take each rung of the ladder, step by step (Reconsideration, if still timely, then ECAB). In other words, if you're buying time , don't skip steps as that defeats your intent to buy time. You will not prevail at ECAB for two reasons: you're not an attorney and you have a weak case. Be that as it may, you won't have a closed case and, right now, that is the most I believe you can hope for.

You probably should consider appointing a Personal Representative to work the issue for you. From reading you file, it appears that you're having trouble keeping cool and objective. You're not alone in that as most people that I know who have tackled the process get the same way. A Personal Rep can help put the objectivity back into play and can work toward winning.

OWCP is not your friend, but they are also not your enemy! They administer FECA law and that doesn't give them room to make decisions that you may believe are "common sense." They make decisions which are compliant with statute and that may or may not be common sense. However, having said that, the Claims Examiners are people and make mistakes sometimes and sometimes may have a bias toward management. Your personal rep can look for opportunities to find find a way to best present your case.

OWCP cases are not won by "Perry Mason" moments. They are won by identifying the specific technicality applicable to your case. You asked if you needed an attorney. That's up to you, but it will cost you approximately $10K to walk up the line to ECAB and the odds are 30 percent or less in your favor under the best of circumstances. I'd guess that your realistic chances at ECAB are less than 1 percent.

You identified the technicality that appears to be your only opportunity to present your case--the agency housing rule for overcoming your being injured off-premises. Now, you would have to match the agency housing rule with a showing that there is a causal relationship to employment. Meshing those two criteria is not going to be easy and is most likely not possible.

You stated that you received a living allowance. That in itself does not establish that your Agency furnished or made available "Agency Housing." Even if you can overcome that difficulty, you have to establish that your use of the "Agency Housing" was a "reasonable use" of the housing. Your repair activities are probably not going to ever be found to be a "reasonable use" of the housing. To illustrate, let's use TDY (TDN if you were Navy) quarters as an analogy. If you occupied TDY quarters somewhere and were injured while taking a shower, OWCP claims examiners would usually find that your injury was incidental to the TDY travel and would award appropriate wage compensation and/or medical benefits. If however, you hurt yourself repairing a leak in the roof of the TDY facilities, you probably would not find a claims examiner who would determine that my meet criteria for an injury resulting from work conditions.

Applying the analogy to your quarters in Germany (And ignoring that you were not in a travel status, did not receive Per Diem and have a poor argument that the quarters were Agency Housing), you were injured during an activity which is definitely not directly related to your job and is almost as unlikely to be incidental to the job. You could attack those deficiencies with a showing that you did necessary work in the quarters and that your Agency knew/condoned/approved/directed you perform the off-premises work. It'll be a stretch, but it's possible you might sell it. You would still be left with establishing that the quarters were "Agency Housing," but it's one step at a time! (When I used "necessary work" I was referring to work for the Agency--not work on the quarters!).

In summary: (1) Your ownership of the property almost certainly, in my opinion, eliminates any potential for having the property identified as "Agency Housing." (2) Ignoring ownership, you are unlikely to be able to establish that your injury has a causal relationship to employment. You were injured repairing your own property. Your injury was not undertaken for the benefit of the Agency and was not incidental to your employment with the Agency. (3) Timeliness is going to be a problem. (4) If you have any chance at all in prevailing on your claim, you will require an attorney, but your odds of prevailing are so minuscule that the $10K or more outlay would be nearly impossible to justify.

Speaking of attorneys, as you probably know, OWCP does not reimburse for attorney fees and costs--even if you prevail, the costs come out of your pocket. Additionally, all attorney compensation plans have to be coordinated with/approved by OWCP and all payments to the attorney go into an "escrow" account with OWCP releasing funds to the attorney upon meeting certain milestones and obtaining written confirmation from you that the attorney performed the service for which the attorney is seeking payment.


Bon chance!!