OIG ‘Special Agents’ Don’t Have Special Rights

(This article first appeared in the March/April 2013 edition of The American Postal Worker.)

In a recent decision, the Employees Compensation Appeals Board (ECAB) ruled that the Office of Workers’ Compensation Programs (OWCP) acted improperly when it terminated the benefits of an injured worker based on evidence that was impermissibly obtained (F.S., Appellant; Docket 11-863; Issued 9/26/2012).

The ECAB concluded that special agents of the USPS Office of the Inspector General (OIG) violated several federal regulations in a fraud investigation involving the claimant — an all-too-common practice. In its ruling, ECAB admonished OWCP for departing from its obligations, stating vehemently that evidence created outside applicable regulations should be rejected.

According to the record, OIG Postal Service agents made several trips to the appellant’s doctors. Such actions blatantly violate Federal Employee Compensation Act (FECA) regulations, which explicitly forbid employing agencies from making contact with treating physicians by phone or by direct personal visits.

According to the ECAB, the visiting agents influenced and prejudiced the doctors’ perception of the patient by persuasively detailing the investigation and showing skewed evidence in “an obvious effort to procure an opinion favorable to their position.” The agents provided an edited version of surveillance video without the claimant’s knowledge and without explaining how the evidence had been edited.

The ECAB has long disapproved of the use of covert tactics. Nearly 60 years ago, in the case of Fredrick Nightingale, the ECAB cautioned:

“Appellant should have been apprised of the conflicts and inconsistencies and the general nature of adverse evidence developed, in order that he might know the nature of the issues to be met and have an opportunity to present such rebuttal or explanation as was available. This in the Board’s view is vital in the non-adversary proceedings under the Federal Employees’ Compensation Act, as it is the function of the Bureau to adjudicate the rights of claimants in light of all relevant facts, facts which can only be developed fully when the claimant is fairly advised as to the nature of the evidence from other sources which bears on his claim…”

More recently, the ECAB addressed the issue of surveillance and imposed on the OWCP an obligation to disclose the existence of videotaped evidence to the employee before it is shown to a doctor; provide a copy to the claimant if requested, and allow the employee reasonable time to explain the events captured on tape. In its ruling, the ECAB reasoned that video evidence may be “incorrect or misleading,” noting possible identity errors and an inability to decipher “whether certain activities were facilitated by the use of medication” [J.M., 58 ECAB 478, 486 (2007)].

Adding to the list of agent indiscretions in the current case, ECAB judges found that OIG law enforcement officers “clearly took an active and on some issues decisive role in developing the appellant’s claim and building the case to terminate benefits.” Agents asked the doctor to sign an “official statement” drafted by a USPS special agent; complete under oath a Postal Service questionnaire, and fill out a Department of Labor “Duty Status Report” indicating the appellant was able to return to regular work, full-time, without any medical restrictions. It its decision, the board noted the possibility that the doctor was motivated by fear of being “dragged into the ‘fraud investigation’” and pointed out that the OIG threatens to criminally prosecute anyone who released details or reports associated with their clandestine investigation.

In this case, the administrative claims process was impermissibly mingled with the investigative process, the board concluded. Before modifying or terminating compensation or authorization for medical treatment, OWCP has a burden to establish through “rationalized” medical evidence that the disability has ceased or is no longer related to employment.