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Department of Veterans Affairs
National Association of Government Employees
117 LA (BNA) 1313
FMCS Case No. 02/00404
David A. Singer, Jr., Arbitrator — selected by parties through procedures of the Federal Mediation and Conciliation Service.
Was R__ (hereinafter the Grievant) denied her privacy rights, secured under the provisions of The Privacy Act of 1994 Amended, and, if so, what is the appropriate remedy?
The Department of Veterans Affairs (hereinafter the Agency) takes the position that the matter at issue in this grievance is not a violation of the negotiated Agreement. Therefore, said issue is not arbitrable.
The National Association of Government Employees, Local R5-136, (hereinafter the Union) holds that the elements of the Agreement are subject to the privacy act, and, therefore, fall under its provisions. As a matter of law, the grievance procedure, articulated in the Agreement, constitutes the exclusive means whereby employees may redress grievances. Therefore, the matter at issue here is arbitrable.
Actual or perceived grievances must have an outlet for resolution. The grievance procedure is the only available, reasonable, and logical means whereby a binding resolution may be obtained. The absence of privacy act provisions in the Agreement is typical of numerous similar circumstances. For example, workplace rules, along with numerous other elements, are rarely contained in master contracts yet appear as grievances with regularity. I am persuaded that the grievance is arbitrable.
The Agency operates a medical facility in Charleston, South Carolina. The Union representing bargaining unit employees filed the instant grievance on January 10, 2002. The labor agreement currently in effect was entered into on April 28, 1992, and remained in full force and effect for a period of three years from the date of its approval by the head of the Agency. The Agreement has been automatically renewed for three-year periods, such renewal provisions continuing subject to certain stipulations.
The Agency's Charleston facility is administered within Region 7 of the Department of Veterans Affairs. The regional Office of Workers' Compensation Programs (OWCP) liaison officer, located in Jacksonville, Florida, reviews all problematic or complex claims before they are routed to OWCP. The liaison then offers suggestions and recommendations, in this case to the Charleston OWCP office.
The Grievant was employed in December 1989 and retired on June 4, 2002. During this period of employment, she worked as a nursing assistant for two years. At the time of her on-the-job injuries, leading to workers' compensation claims, the Grievant served as an operating room medical supply technician. She worked under the provisions of the workers' compensation program from 1998 through March 2001. The Grievant was engaged in four-hour workdays during this period, workers compensation paying the remaining four hours. Her personal physician cited a 1997 on-the-job back injury as justification for her workers' compensation claim, and ensuing benefits.
During late February or early March 2001, the Agency attempted to identify, or create, an eight-hour job that the Grievant could perform within the bounds of her physical restrictions. She was unable successfully to perform her duties for the eight-hour period, and her personal physician recommended that she be returned to a four-hour workday.
The process for returning an injured employee to work may be readily summarized.
• Analyze the description of the position to be filled by the returning employee. Consider the physical requirements attendant to the position.
• Acquire the physician's concurrence that the position to be offered the employee is within the bounds of said employee's physical limitations.
• Obtain agreement relative to the above considerations from OWCP.
• The employee is free to accept or reject the assignment.
Upon the physician's recommendation that the Grievant be returned to work, OWCP informed the Grievant that she must file another workers' compensation claim. Said claim was filed on March 14, 2001.
The events generating this grievance are straightforward, and, for the most part, not in contention. It is important to note that this record is encumbered due to the fact that calendar dates presented by the Grievant contradict those cited in various documents. Furthermore, her proffered dates are also in conflict within the narrative of her own testimony. These inconsistencies do not impact the basic issue.
The Grievant became concerned regarding the disposition of her personal records, specifically those relating to the circumstances attendant to her two workers' compensation claims. On February 26, 2001, she contacted another physician and requested a copy of her medical records. She was advised that an Agency claims examiner had recently requested said records. The Grievant took exception to the fact that an Agency representative had requested the file, contending that it should not have been released. The matter was grieved on January 10, 2002, citing that the Agency, on numerous occasions, violated the Grievant's rights under the Privacy Act of 1974.
Specifically, the Union contends that:
1. the Agency sought and obtained information from a third party rather than attempting to obtain the information, to the greatest extent practicable, directly from the Grievant.
2. the Agency disclosed the information, without the Grievant's consent.
The issue under examination here was processed through the grievance procedure, submitted to arbitration, and is now properly before me.
Article 48 Arbitration
Section 4—The costs of the arbitrator and his/her expenses will be borne equally by the parties. Transcripts of arbitration proceedings are not required. The full cost of transcription services will be borne by the party requesting a transcript. If both parties desire a transcript, the cost will be shared equally.
Section 5—The arbitrator will derive his/her authority from this negotiated agreement and, in rendering a decision, must not add to, subtract from, nor modify any of the terms of this Agreement.
Section 6—The arbitrator will be requested to render his/her decision within 30 days.
Section 8—Grievability/arbitrability issues will be resolved as threshold issues at arbitration, but must have been raised no later than the time the step three decision is given.
Section 9—Either party may appeal an arbitrator's ruling pursuant to statute.
The Union contends that the Grievant's rights, secured under the provisions of the Privacy Act of 1974, were violated when the OWCP requested medical information from third parties rather than attempting to obtain said information directly from the Grievant. Furthermore, the Grievant was not provided copies of the OWCP or the physician's responses. The Grievant's rights were further violated when the Agency disclosed said information to another agency without obtaining the Grievant's consent.
Provisions of the privacy act are clear. When collecting information about an employee, the Agency must have the need to know, must have the authority to request such information, and must follow specific procedures. The Union contends that the OWCP's most damaging action involved failure, to the maximum extent possible, to seek the Grievant and request the information directly. The Grievant would have readily accommodated the request. The OWCP does not enjoy unrestricted access to the Grievant's medical files. Privacy Act provisions do not require that all information be processed directly through the employee. The Act does require that the OWCP make every effort possible to keep the employee informed.
The basic problem in this case is the absence of the Grievant's involvement in the OWCP's attempts to evaluate her workers' compensation claims. Surely, the OWCP enjoys the right to question, even challenge, those claims, but it has no right to proceed directly to the Grievant's personal physician and solicit information designed to support its position. Specifically, Section (e)(2) of the Privacy Act provides that each agency that maintains a system of records shall “... collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs.” Clearly, the OWCP sought to obtain information, adverse to the Grievant's workers' compensation claims, directly from her physicians.
If the Grievant had not complied with the OWCP's efforts to obtain necessary medical information, or been uncooperative in providing such information, Agency officials would have had the right aggressively to pursue said information. Unfortunately, the OWCP made no effort to seek information from the Grievant. In fact, the OWCP appears to have made every effort to exclude the Grievant from the process. Simply stated, she had the right to know the status of her benefit claims, and also the results of her medical treatment. The Agency denied her that right, and, in the process, violated the Privacy Act of 1974.
During grievance meetings, the Agency declared that the OWCP enjoyed the right to contact the Grievant's personal physicians. As a matter of fact, the OWCP even admitted that the contacts were made. Furthermore, the OWCP never declared that attempts were made to converse with the Grievant prior to making the contacts in question. Interestingly enough, while the OWCP was collecting the personal information, the Grievant was perpetually in contact with the human resources OWCP specialist. During contacts with the OWCP specialist, the Grievant requested access to her personal file. She wished to retrieve the file, advising the specialist that the Agency should not be in possession of said file. Finally, the specialist agreed to supply the file, but advised that it would take a few days. In fact, the Union eventually compelled the specialist to provide the folder. It contained a full range of personal information including records from the medical university, her personal physician, and other physicians.
The U.S. Department of Labor publication, Injury Compensation for Federal Employees, Compensation Act-810, paragraph 1-5, Information and Records, provides that “Individual case files are protected under the Privacy Act, and only the employee, his or her representative (if any), and Agency personnel may routinely have access [emphasis supplied] to a given file ....” The formal grievance makes no reference to the propriety of the OWCP obtaining documents from within the Agency. It merely establishes that the Agency may have access to the OWCP file. Further, there is no specific reference to the employee's personal physician's files.
Compensation Act-810 does not give the OWCP the authority to use the Grievant's records as a vehicle to contest or deny workers' compensation claims. Paragraph 6-3, Choice of Physician, specifically provides that “...Agency personnel may contact the attending physician only to obtain additional information about or clarify the employee's duty status or medical progress, and only in writing [emphasis supplied].” OWCP personnel improperly phoned the office of the Grievant's personal physician and left a message that Duty Status Report, CA-17, be supplied. The Agency also requested additional medical records. The Union wishes to emphasize that such requests must be offered in written form. When the OWCP phoned the physician's office, the nature of the Grievant's medical restrictions were, in fact, being requested. Paragraph 9-2, Inspection and Protection of Records, Compensation Act, provides that “... Under the routine use provisions of the regulations governing release of information under the Privacy Act, agencies are entitled to obtain copies of other materials in their employees' compensation files as well.” This provision clearly relates to the Grievant's compensation file, not her medical file.
Finally, the Code of Federal Regulations, 10.506, not only requires that the Agency must “... contact the employee's physician in writing concerning the work limitations...”, but also demands that when such contact is effected, the Agency “... shall send a copy of any such correspondence to OWCP and the employee, as well as a copy of the physician's response when received ....” The Privacy Act requires that each agency maintaining a system of records shall “... collect information to the greatest extent practicable directly from the [Grievant] when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs ....” The Union contends that the OWCP's numerous and inappropriate efforts to obtain the Grievant's records, without her involvement, could potentially produce an adverse effect.
The Agency unfairly, and incorrectly, suggested that the Grievant's March 14, 2001 injury was not legitimate, and is unworthy of a workers' compensation claim. In an October 2001 letter to a claims examiner, the Manager, Human Resources Division, declared that the Grievant “... allegedly sustained a new injury on March 14, 2001, with suspicious timing and circumstances surrounding the alleged new injury.”
The Agency continued to question the legitimacy of the Grievant's second injury in an April 2001 letter from the Labor Relations Specialist, FECA Manager, to a different claims examiner. The manager pointed out that she failed to advise four different individuals, including a physician, that she “experienced pain from using the Addressograph.” She then contradicted herself by declaring, to a physician, that she experienced “usual pain over past two weeks, increase over past one week.” The Union holds that these isolated statements do not reflect contradiction, were not contrived in order to acquire additional workers' compensation benefits, and by no means prove the Agency's position. The Grievant did not contrive an additional injury claim in order to qualify for additional workers' compensation benefits.
Upon learning that the OWCP had requested her records, failed to so notify her, and refused to provide copies of correspondence and reports, the Grievant contacted her union steward. She was concerned because she had never given permission for her file to be forwarded to the Agency. Consequently, the Grievant, accompanied by the steward, visited the OWCP specialist at the hospital human resources office. The specialist would not allow the steward to be present when she examined the Grievant's OWCP file. The Grievant protested, declaring that the steward should be present. Later the Grievant re-established contact with the steward and advised that the Agency had obtained her physician's file and copies of information requests. The Grievant was distressed because she had never been advised of the Agency's attempts to obtain information. The steward instructed the Grievant to obtain copies of documents from her file. Three or four days later she was provided with some of the documents.
At this point the steward contacted the Union attorney and advised him of the circumstances surrounding the Grievant's concerns. When he realized that the Grievant had not given the OWCP permission to request information from her physician and others, and that the OWCP had not advised her relative to the reason for their efforts to obtain information, he declared that her privacy rights had been violated, and directed that the Union file the grievance at issue here.
The Union wishes further to question the OWCP concern that the Grievant did not sustain a second injury. Within the past two years, the Agency has concluded that the processing of workers' compensation claims must be more aggressively treated. The Agency appears to have forgotten, however, that the workers' compensation program is not an adversarial procedure. The OWCP must proceed as a neutral fact finder. Such was not the case when the Agency examined the Grievant's claim. The process is quite straightforward. The Grievant and the Agency submit information and OWCP rules on the veracity of the Grievant's claim. In short, did the Grievant prove her case?
The OWCP failed to adopt this non-adversarial process. In an attempt to reduce workers' compensation benefits awarded, the scope of the Grievant's injury was denied. The OWCP took the position that her injury was not work related, but resulted from an unrelated medical condition. The Agency's decision to offer a full-time job was a thinly veiled effort to reduce its workers' compensation commitment. As a matter of fact, the Agency has contended from the beginning that the Grievant did not sustain a second injury. The Union holds that the Agency's beliefs are not related to the actual fact of placing the Grievant into a job that she can perform within the bounds of her restrictions. No attempt to reach this accommodation has been forthcoming.
The Union requests that I rule that the Agency violated the Privacy Act of 1974 and that appropriate damages be awarded in the amount of $1,000 per violation, or actual damages, whichever is greater, in addition to her attorney's fees.
Position of the Agency
The Agency contends that the contract was not violated. The Agreement allows the OWCP to collect information. Further, other laws and regulations, including those established by the Department of Labor, designed to oversee the workers’ compensation program, also allow information collection. Contrary to Union claims, in the process of collecting information relating to the Grievant's claim, the OWCP did not seek adversely to affect the Grievant. On the contrary, the OWCP sought to return her to a productive work environment.
The Code of Federal Regulations, 10.506, allows the OWCP to gather pertinent information in the process of evaluating compensation claims. Specifically, the regulation prescribes that “The employer may monitor the employee's medical progress and duty status by obtaining periodic medical reports ....” The OWCP engaged in its information gathering efforts in accordance with the regulations that allow the Agency to seek medical information directly from the physician rather than through employee. The information that was obtained aided OWCP in its determinations, based upon restrictions, to identify the nature of jobs available to the Grievant. The OWCP attempted to tailor jobs to the Grievant's needs in order to insure that additional injuries would not be sustained. Again, the OWCP sought to return the Grievant to a productive work environment.
Additional documentation will serve to establish the Agency's right to obtain the information necessary legitimately to rule upon claims. For example, U.S. Department of Labor, Notice of Recurrence, CA-2a, is clear and unequivocal on this point. The Grievant's signature, affixed to CA-2a, establishes that she understands and accepts the OWCP's right aggressively to gather needed information. The Grievant's authorization statement follows:
I hereby authorize any physician or hospital (or any other person, institution, corporation, or government agency) to furnish any desired information to the U.S. Department of Labor, Office of Workers' Compensation Programs (or to its official representative). This authorization also permits any official representative of the Office to examine and to copy any records concerning me.
The Agency offers this statement, which should, in and of itself, sustain its case.
Publication CA-810, Injury Compensation for Federal Employees, further solidifies the Agency's position. Paragraph 1-5, Information and Records, provides that “Individual case files are protected under the Privacy Act, and the employee, his or her representative (if any), and agency personnel may routinely have access to a given file ....” CA-810, Medical Reports-Forms CA-20 and CA-17 provide that “Agency personnel should use Form CA-17, Duty Status Report, to obtain interim medical reports about the employees' fitness for duty ... The physician should send the original Form CA-17 to the agency and a copy to the district office ....” The OWCP correctly complied with CA-810 and submitted CA-17, U.S. Department of Labor, Duty Status Report to the physician. This request for information authorization follows.
This request for information is authorized by law (5 U.S.C. 8101 et seq.) and is required to obtain or retain a benefit. Information collected will be handled and stored in compliance with the Freedom of Information Act, the Privacy Act of 1974 and the OMB Cir. A-108.
CA-810, paragraph 6-3, Choice of Physician, lends further support for OWCP efforts to obtain information regarding the Grievant. “... Agency personnel may contact the attending physician only to obtain additional information about or clarify the employee's duty status or medical progress, and only in writing.” Finally, CA-810, paragraph 9-12, Inspection and Protection of Records, requires that OWCP will release requested information “...if an agency designates a particular individual as a liaison or principal contact with the district office....” OWCP claims' examiners were so designated. Furthermore, the Region 7 liaison, Department of Veterans’ Affairs, was also designated to address the Grievant's claim. Clearly, the OWCP was empowered to contact the Grievant's personal physician in order to obtain necessary information.
The Agency supplied excerpts from the Department of Labor website, wherein questions and answers relevant to the case at hand were presented. The OWCP general policy regarding the employee right to return to work follows:
OWCP considers return to work a benefit both to the injured employee, who once again becomes a productive member of society, and to the employer, who retain (or obtains) the services of a skilled and knowledgeable individual.
Desiring to retain the Grievant's services, the OWCP offered the full-time job to her in early 2001. She was an experienced and skilled employee. The same document established that the employer is entitled to know the content of the employee's compensation file.
While workers' compensation records are protected from release under the Privacy Act, the employer is considered a party to the claim. It may receive information in the employee's file under the “routine use” provision of the regulations under which the Privacy Act is administered. Such information includes medical reports ....
Finally, the Duty Status Report, CA-17, was supplied by the Grievant's physician. He also provided narrative information and other reports. The physician was aware of the OWCP's need for relevant information.
The Agency contends that the preceding litany of official documentation clearly establishes its right to obtain all information necessary to rule upon workers' compensation claims. The OECP labor relations specialist, FECA Manager, established the Agency's commitment to responsible treatment of the Grievant's benefits claim. Information was obtained from several sources. In the final analysis, her personal physician recommended that she work an eight-hour day, with restrictions. The specialist, during the course of his duties, obtained information from the Grievant's personal physician. Attendant to the process, he wrote several letters to the physician. His sole purpose was to create a permanent position for the Grievant within the bounds of the restrictions identified by physicians. The Agency was obliged to create a position and tender a job offer if the Grievant's restrictions appeared to be permanent. Such was the case.
The OWCP wishes, once again, to emphasize that the intent in obtaining information about the Grievant was not to deny benefits to which she was entitled. Rather, the OWCP's intent was to insure that she received the benefits to which she was entitled. To that end, the OWCP attempted to place the Grievant in a job. The sequence of events follows:
• A job offer was made.
• Under OWCP rules, the Grievant had thirty days to accept or reject the offer.
• As the thirty-day period was about to expire, the Grievant sustained another, unwitnessed, injury, which she declared to be a new injury.
• In claiming the new injury, she attempted to circumvent the job offer that had already been forthcoming.
• The OWCP challenged the new injury, but continued to carry the Grievant in a job that was not a position of record.
• Therefore, the thirty-day period was no longer applicable, and she was not required to accept or reject the job offer.
• The entire process, having gone full circle, started over.
• The Grievant continued to receive benefits to which she was not entitled.
Clearly, the Grievant contrived to claim that the new injury, if indeed there was a second injury, was job related. Her motive was to continue to receive benefits to which she was not entitled.
The Agency acted within proper authority and did not violate the Agreement. For the foregoing reasons, the Agency requests that the grievance be denied.
I wish to dispatch one significant element of testimony before addressing pertinent evidence. The matter of the Grievant's motives, allegedly sinister, in claiming a second injury at a questionable moment in time occupied a disproportionate amount of testimony. In this regard, it is important to recognize that the core issue is the alleged invasion of the Grievant's privacy rights. The issue does not require an extensive exploration of the Grievant's integrity when filing workers' compensation benefit claims. Furthermore, settlement of the issue does not call forth an in-depth analysis of her actual medical status. While reference to the Grievant's motives in filing the second injury claim, along with her physical condition, will appear from time-to-time in this discussion, they will not occupy a significant presence in resolving the basic issue.
The issue involves application and analysis of six documents, five of which are formal in nature, to the actions of the Grievant and her bargaining unit representative. First, appropriate segments of the Privacy Act of 1974, Amended, will be examined. Second, The Code of Federal Regulations, 10.506, will be applied. Third, the document addressing Injury Compensation for Federal Employees, Publication C-810, will be discussed. Fourth, U.S. Department of Labor, Notice of Recurrence, Form CA-2a, will be applied. Fifth, the U.S. Department of Labor, Duty Status Report, Form CA-17, will be applied. Finally, a website presenting questions and answers about the Federal Employees' Compensation Act (FECA) will be considered.
The Privacy Act of 1974 prescribes basic behaviors and actions to the Agency. The Agency is required to collect information “to the greatest extent practicable directly from the [Grievant] when the information may result in adverse determinations about an individual's rights ...” under Federal programs. The Union charges that the Grievant was not involved in, nor consulted, regarding the OWCP's attempts to investigate the second injury claim, and rule upon its voracity.
I find no evidence to suggest that the OWCP involved the Grievant until such time as she discovered that her records had been obtained from the medical university, her personal physician, and another physician. The Grievant did not extend permission to the OWCP to request various files. Finally, the OWCP, during testimony, never claimed that attempts to involve the Grievant were forthcoming. Clearly, sensitive information, resulting in an adverse determination, could have been present in the Grievant's file. The probability that such information could have been contained therein is sufficient to require that the Agency collect information “to the greatest extent practicable” from the Grievant. The Agency had the right to bypass the Grievant in the information-collecting endeavor if she had been obstructive and/or uncooperative. No evidence suggests obstructive behavior on her part.
The Code of Federal Regulations, 10.506, enabled the OWCP to monitor the “... [Grievant's] medical progress and duty status by obtaining periodic medical reports ...” At no point does the Code declare that the OWCP could bypass the employee while in the process of monitoring medical progress. The OWCP admittedly contacted the Grievant's physician by phone. The Code specifically requires that the Agency may contact the “... physician in writing concerning work limitations imposed by the effects of the injury ....” Parenthetically, the Code continues by signifying that “... the [Agency] shall not contact the physician by telephone or through personal visit ...” Finally, the Code prescribes that, once contact has been made, the “...[Agency] shall send a copy of any such correspondence to ... the [Grievant] as well as a copy of the physician's response when received ....”
As previously established, the OWCP bypassed the Grievant during the initial, and most critical efforts to obtain information. The OWCP then proceeded to contact the personal physician by phone—prohibited by the Code. Finally, the Grievant was never provided, as the Code demands, a copy of correspondence and physician's responses received. The provisions of the Code were blatantly ignored.
The Injury Compensation for Federal Employees, Publication 810, paragraph 1-5, Information and Records, does indeed give the Agency access to a given file. However, this provision does not serve specifically to exclude the demands of the Privacy Act and the Code of Federal Regulations. Publication 810, paragraph 2.2, Traumatic Injury, Section D, Medical Reports, provides that the Agency should use Form C-17, Duty Status Report (addressed later in this discussion) “to obtain medical reports about the [Grievant's] fitness for duty ....” Publication 810 also requires that “...The physician should send the original Form C-17 to the agency and a copy to the district office ....”
As already established, the provisions of the Privacy Act and the Code of Federal Regulations continue in force. The provisions of Publication 810, in omitting the requirements of the above listed documents, do not serve to negate their letter and intent. As a matter of fact, paragraph 6-3, Choice of Physician, Publication 810, reinforces the demands of the Code. Specifically, said paragraph declares that “... Agency personnel may contact the attending physician only to obtain additional information about or clarify the employee's duty status or medical progress, and only in writing [emphasis supplied].”
I hold that Publication 810 does serve to support the Agency's right to seek the medical records of employees. However, in its endeavors to obtain such information, the Agency must recognize that the strictures presented in previously cited documents continue to obtain.
The Notice of Recurrence, Form CA-2a, clearly authorizes the Agency to seek information from any physician, institution, corporation, or government agency. This authorization is secured, with no less than the Grievant's signature.
I find no evidence that the Union ever contested the Agency's right to seek information. This has never been an issue. The means whereby information is secured and treated constitutes the issue under examination here. The Grievant's authorization in no way removes the necessity for employee involvement. Furthermore, the authorization clearly established through CA-2a does not relieve the OWCP from the duty to copy specific correspondence and information to the Grievant.
The U.S. Department of Labor, Duty Status Report, CA-17, is specifically related to contacts made by the OWCP to the physician. CA-17 was requested by phone, unaccompanied by involvement of the Grievant. Again, the OWCP must request information in writing, and must attempt, to the degree practicable, to involve the Grievant. No additional commentary is necessary.
The Federal Employees' Compensation Act (FECA) questions and answers website, while not an official document, provides additional guidance. Relative to the OWCP's entitlement to access to the employee's workers compensation file, the answer is clear. Under the Privacy Act, the Agency is a party to the claim. Therefore, under “routine use” provisions of the regulations under which the Privacy Act is administered, the Agency may receive information, including medical records. Furthermore, the website also declares that OWCP considers the return to work to constitute a benefit for the employee who, once again, becomes productive. Said employee's skill and knowledge can, again, be available to the Agency.
These website statements of guidance clearly allow the Agency access to files, including medical information. The website also establishes the importance of the Agency's attempts to return the employee to a productive status.
What does the website not prescribe? It does not remove the duty of the OWCP to involve the Grievant; neither does it obliterate the necessity that information be forthcoming as a result of written request. Further, website guidance does not remove the necessity that correspondence and reports be provided to the Grievant. The website is a helpful, broad, and not all-inclusive guideline.
The mass of official documentation, applied to the instant case, provides clear guidance.
• The Grievant was not involved in the Agency's attempts to gather information “to the greatest extent practicable.” As a matter of fact, I hold that the Agency made no effort to involve the Grievant until she and her steward forced the issue.
• Contacts requesting medical information, along with other information, from her files were almost exclusively requested by phone, not in writing.
• The Grievant received few, if any, copies of correspondence or file information.
Policies, along with regulatory documents, provide guidance to all concerned. In this case, they prescribe courses of action for the Agency, and, at once, protect the Grievant. The Agency, in its attempts to address the allegedly questionable benefits claim of the Grievant, elected selectively to recognize the provisions of formal documents. In short, the Agency inappropriately cited isolated segments of policy and regulations in an attempt to obviate the intent of the full context of formal statements and very prescriptive documents. Therefore, the information sought by the Agency resulted in an “adverse determination about [the Grievant's] rights, benefits, and privileges under Federal programs.”
It is necessary to emphasize that the Grievant's honesty in seeking additional benefits is not the subject of this arbitration. Questions that accompany her request for further benefits could appropriately have been applied to the issue of privacy, along with the procedures designed to protect such privacy, if proof of questionable behavior on the Grievant's part had been forthcoming. Such proof was notably absent.
I am puzzled by the timing and circumstances surrounding the Grievant's request for additional benefits. Agency officials also questioned such timing. However, neither the Agency's suspicions, nor mine, serve to justify intrusion of these suspicions into the merits of the case. There is not one scintilla of hard evidence to suggest that the second injury was not, in fact, sustained. Furthermore, no evidence suggests that it was not job-related. There is no evidence to support the Agency's conclusion that there was collusion perpetrated by the Grievant in order to continue unearned benefits.
For the foregoing reasons, I am unable to deny the grievance.
1. The grievance is sustained.
2. The Grievant is to be made whole for all losses incurred.
3. The arbitration hearing provided no means whereby I may legitimately award monetary recompense to the Grievant or her attorney.
4. The matter of monetary loss, if, in fact, such loss was sustained, must be resolved by the parties. If I am called to address questions of monetary recompense, I shall expect sound, succinct, definitive statements of claims sought. I shall view, with displeasure, any frivolous, unsubstantiated, or self-serving claim.
5. Therefore, I will retain jurisdiction over this until the provisions of this award are finalized.
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