Involvement in union activities isn't always fatal to WC claim

By Elizabeth A. Morrow, Esq., cyberFEDS® Special Projects Editor

IN FOCUS: When an employee claims to have been injured while performing representational functions, the first inquiry is generally whether he was granted official time or in emergency cases, would have been granted official time if there had been time to request it. If the answer is yes, the employee's injury may be considered to have occurred in the performance of duty.

The Office of Workers' Compensation Programs procedures define "official time" as time granted to an employee by an agency to perform representational functions when the employee would otherwise have been in duty status, without charge to leave or loss of pay. This may include scheduled overtime or a period of irregular unscheduled overtime, if an event arises that requires the employee to act in a representative capacity. Federal Employees' Compensation Act Procedure Manual 2-0804-16.

Injuries to union employees working on union grievances may also be covered under the FECA. However, injuries to employees engaged in the internal business of a labor organization, such as soliciting new members or collecting dues, are not covered.

As one claimant discovered recently, the line between covered and non-covered activities may be blurry, especially where he is injured while wearing several hats.

Stress from testifying causes chipped tooth
While testifying at an arbitration hearing both as a witness and union representative, the claimant was so nervous, he began to grind his teeth, which caused a tooth to chip. The employing agency disputed the resulting workers' compensation claim, alleging that the claimant was performing internal union business at the hearing, which is not covered by the FECA.

An OWCP hearing representative reversed the decision denying benefits, finding that the claimant's injury occurred in the performance of duty because he was testifying during an arbitration hearing in his capacity as a union representative. The hearing representative explained that while union activities are generally personal in nature, if the employee is performing representational functions that entitle him to official time, he is considered to be in the performance of duty while engaged in those functions.

Mutual benefit
"The underlying rationale for this exception is that an activity undertaken by an employee in the capacity of union officer may simultaneously serve the interests of the employer," the hearing representative said. Contrary to the agency's position, the claimant was not engaged in internal union business when he was injured. He presented an e-mail confirming that the agency granted him official time to attend the hearing.

The claimant pointed out that union representatives are not granted official time to perform internal union business.
Medical evidence
The hearing representative also noted that the claimant visited a dentist immediately after the hearing concluded. The claimant did not have to submit a rationalized medical opinion in this instance because his injury was minor, could be identified on visual inspection, and was witnessed by the claimant's union representative. In addition, the claimant did not miss any time from work because of the injury.

April 23, 2009
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