Jones-Booker v. U.S.

• Decision Date: 27 February 1998
• Docket Number: Civil No. 97CV10616-PBS.
• Citation: 16 F.Supp.2d 52
• Parties: Donald JONES-BOOKER, Plaintiff, v. UNITED STATES of America, and the Secretary of Labor, Department of Labor, Defendants.
• Court: U.S. District Court — District of Massachusetts

16 F.Supp.2d 52

Donald JONES-BOOKER, Plaintiff, v. UNITED STATES of America, and the Secretary of Labor, Department of Labor, Defendants.

Civil No. 97CV10616-PBS.

United States District Court, D. Massachusetts.

February 27, 1998.

COPYRIGHT MATERIAL OMITTED

Frank J. Ciano, Cambridge, MA, for Plaintiff.

Assistant United States Attorney Andrew L. Freeman, Boston, MA, for Defendant.

FINDINGS AND RECOMMENDATION ON (1) Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment; (2) Plaintiff's Motion for Summary Judgment or for Remand for Further Administrative Proceedings

ALEXANDER, Chief United States Magistrate Judge.

Parties appeared before this Court on the above motions. Attorney Ciano appeared on behalf of Plaintiff Donald Jones-Booker ("Jones-Booker") and Assistant United States Attorney Freeman appeared on behalf of Defendants United States of America, the Secretary of Labor, and the Department of Labor ("Defendants"). For the following reasons, Defendants' motion is hereby DENIED; Plaintiff's motion is hereby ALLOWED to the extent that this case is hereby remanded for further consideration consistent with this opinion.

Involved in the case sub judice are administrative actions taken pursuant to the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101 et seq. Enacted in 1916, FECA provides workers' compensation for federal civilian employees who are injured while in the performance of their duties. 5 U.S.C. § 8102(a). FECA is the exclusive remedy against the United States for any federal employee whose injuries fall within the scope of the statute, and precludes recovery in another direct judicial proceeding. 5 U.S.C. § 8116(c). As a workers' compensation statute, FECA's purpose is to provide comprehensive recovery that is quicker and more certain than can be obtained from tort suits. United States v. Demko, 385 U.S. 149, 151, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966).

The Secretary of Labor is authorized to administer FECA, to promulgate rules and regulations that aid its administration, and to decide all questions arising under the statute. 5 U.S.C. § § 8145 and 8149.¹ Pursuant to § 8145(2), the Secretary has delegated responsibility for management of FECA to the Director of the Office of Workers' Compensation Programs ("OWCP").

The Director of the OWCP makes findings of fact to determine whether a claimant is entitled to compensation. 5 U.S.C. § 8124(a). According to FECA regulations,

A claimant has the burden of establishing by the weight of reliable, probative and substantial evidence that the claimed condition and the disability, if any, was caused, aggravated, or adversely affected by the claimant's Federal employment. As a part of this burden, the claimant must specify the employment incident or the factors or conditions of employment to which the injury, disease or disability is attributed, and must submit rationalized medical opinion evidence, based upon a complete and accurate factual and medical background, showing causal relationship between the claimed condition and the Federal employment.

20 C.F.R. § 10.110.

To apply for compensation, a claimant must file a Notice of Occupational Disease and Claim for Compensation ("Form CA-2") with his superior or any official of the employing agency. 20 C.F.R. § 10.100. Form CA-2 must be accompanied by an employee statement that includes:

(1) A detailed history of the disease or illness with identification of part(s) of the body affected;

(2) Complete details of types of substances or conditions of employment believed responsible for the disease or illness;

(3) A description of specific exposures to substances or stressful conditions including locations, frequency and duration, and

(4) Whether the employee ever suffered a similar condition and, if so, full details of onset, history and medical care received with names and addresses of physicians rendering treatment.

Id.

The claimant must also submit

a medical report to the Office from the attending physician. The report should include: dates of examination and treatment; history given by the employee; findings; results of x-rays and laboratory tests; diagnosis; course of treatment; and the physician's opinion, with medical reasons, regarding causal relationship between the diagnosed condition(s) and the factors or conditions of the employment.

20 C.F.R. § 10.104.

If a claimant is unable to prosecute his own claim, he may appoint a representative to do so. According to 20 C.F.R. § 10.144, "[a] representative shall be entitled to present or elicit evidence and to make allegations as to facts and law in any proceeding affecting the claimant and to obtain information with respect to the claim to the same extent as the claimant." The representative has authority to prosecute the claimant's appeal as well.

There are three ways a claimant may seek administrative review of a denial of compensation.

First, a claimant may, within thirty (30) days of the date the OWCP decision was issued, request a hearing before an OWCP representative or request that an OWCP representative review the written record. 5 U.S.C. § 8124.

Second, a claimant may, within one year of the date the OWCP decision was issued, request reconsideration. 5 U.S.C. § 8128.

Third, a claimant may, within one year of the date the OWCP decision was issued, file an appeal with the Employee Compensation Appeals Board ("ECAB"), an appellate arm of the Department of Labor. 5 U.S.C. § 8149.²

"The claimant may obtain review of the merits of the claim by — (i) showing that the Office erroneously applied or interpreted a point of law, or (ii) Advancing a point of law or a fact not previously considered by the Office, or (iii) Submitting relevant and pertinent evidence not previously considered by the Office." 20 C.F.R. § 10.138. The regulations clearly state that "the Office will not review under this subsection a decision denying ... a benefit unless the application is filed within one year of the date of that decision." Id.

While administrative review is available pursuant to the foregoing, judicial review of the Secretary of Labor's findings of fact or law is explicitly precluded under FECA. Section 8128(b) provides that

The actions of the Secretary or his designee in allowing or denying a payment under this subchapter is —

(1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise....

5 U.S.C. § 8128(b).

Although § 8128 substantially bars judicial review, constitutional violations do not fall within its reach. See Czerkies v. United States Dep't of Labor, 73 F.3d 1435, 1439 (7th Cir.1996) (stating that door closing provisions do not close the door to colorable constitutional claims provided the claimant does not seek monetary relief); see also Paluca v. Secretary of Labor, 813 F.2d 524, 525 (1st Cir.1987)(" § 8128(b) ... does not impede the adjudication by the courts of constitutional issues ...."). Given the aforementioned legal backdrop, it is beyond peradventure that a claimant must assert a colorable constitutional claim in order for this Court to have jurisdiction and, given the ensuing discussion, this Court so finds.

Factual. The plaintiff, Donald Jones-Booker, was employed for nineteen (19) years as a program analyst by the Office of Public Housing, Department of Housing and Urban Development until August, 1990. On or about August 14, 1990, Jones-Booker's co-workers noticed that his speech had become slurred to the point that they could no longer understand him. On August 20, 1990, Jones-Booker was admitted to Brigham and Women's Hospital where he remained until September 5, 1990.

While at Brigham and Women's Hospital, Dr. Peter Amsterdam determined that Jones-Booker had suffered a stroke resulting in "nonfluent aphasia with tremendous word finding difficulties" and "severely diminished" strength in the "right upper extremity." Though Jones-Booker's comprehension "for the most part was intact," he was "unable to name or repeat words" and did not have the ability "to express language either spoken or written."

On October 23, 1990, Mrs. Jones-Booker filed Form CA-2 on Jones-Booker's behalf. Jones-Booker's CA-2 shows that he became aware that his stroke was caused or aggravated by his employment on August 14, 1990. In response to question # 13 which asks the claimant to "[e]xplain the relationship to your employment, and why you came to this realization[,]" Mrs. Jones-Booker wrote

I am right handed, have lost use of same and suffered serious oral speech capacity: presently receiving therapy for same. My work is sedentary, must communicate orally with co-workers and use personal computer equipment continually.

On May 4, 1991, the OWCP issued an order that denied Jones-Booker's claim because the OWCP claimed that the record showed no evidence of a causal relationship between Jones-Booker's employment and his stroke. OWCP referred to Jones-Booker's CA-2 which it felt did not adequately state why Jones-Booker's employment was responsible for his stroke. OWCP also noted the fact that the only medical report in the record at the time was the October 10, 1990 report,³ absent any communication by the Plaintiff, submitted by Dr. Amsterdam in which he stated "[i]t is very unlikely that this event was related in any way to the patient's occupation and it was merely a coincidence that this event occurred at work."

Jones-Booker did not request reconsideration of the May 4, 1991 decision until November 22, 1993. The OWCP denied Jones-Booker's request because it was filed after the one-year limitations period had already expired. Pursuant to FECA regulations, however, OWCP did review Jones-Booker's record to see if it presented "clear evidence of error",⁴ obviously a higher standard than his initial request.

In the November 22, 1993 request, Jones-Booker enclosed a...