TIP OF THE WEEK - September 29, 2014TIP OF THE WEEK - September 29, 2014

1

“The claimant enjoys an affirmative defense against three factors of: Willful Misconduct, Intoxication, or Intention to Bring About Injury or Death to Self or Another. The OWCP must overcome such defense.”

QUESTION: Since OWCP has to overcome the affirmative

defense, does that mean that the claimant does not have to provide responses to questions posed by

OWCP?

AFFIRMATIVE DEFENSE

Answer:

2If you have a question or topic for Tip of the Week, contact your District 6 Liaison, Jacksonville, FL

SCENARIO: An employee filed a claim alleging that he sustained an injury when he climbed on a table to attempt to repair the air conditioning (AC) unit located on the ceiling. The supervisor told appellant not to do it. OWCP wrote letters to both the employee and the agency, requesting clarification. The employee never answered. So OWCP denied the claim. The employee appealed.

ECAB held that “OWCP properly determined that there was insufficient factual evidence of record to establish that appellant’s injury occurred in the performance of duty. Because appellant did not respond to OWCP’s questions regarding this activity, he did not meet his burden of proof.”

“ An employee seeking benefits under FECA has the burden of proof to establish the essential elements of his or her claim.” Failure to response to OWCP’s questions resulted in denial of the claim. If the claimant had responded this case may have had a different outcome.

Reference: ECAB D.A. Docket No. 14-577 (Issued: July 29, 2014) http://www.dol.gov/ecab/decisions/2014/Jul/14-0577.htmFECA PM Chapter 2-0804, Performance of Duty Para, 14. Statutory Exclusions; http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-PT2/group1.htm#2080414

Reference: ECAB http://www.dol.gov/ecab/decisions/2014/May/14-0269.htmFECA PM: Chapter 2-0803, Fact of Injury para, 5: http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-PT2/group1.htm#208034