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Home Work Comp Chiropractic

Cathy Carpenter was reimbursed for chiropractic treatment

civilrightsfed by civilrightsfed
February 2, 2020
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Either the federal agency or the EEOC reimbursing chiropractic treatment in an EEOC discrimination claim is a very good thing.

Chiropractic

The reason that reimbursement for chiropractic treatment is important, is that chiropractic is scientifically proven to help with musculo-skeletal injuries. In an evidence based study, which most chiropractors perform on a daily basis, patients are more satisfied with their chiropractic treatment than surgery, addictive pain drugs.

Cathy Carpenter v. Department of Transportation

01971161

March 17, 2000

Cathy Carpenter,                    )

Complainant,                       )

) Appeal No.  01971161

v.                              ) Agency No.  DOT 94-0217

) Hearing No. 370-95-X2100

Rodney E. Slater,                   )

Secretary,                          )

Department of Transportation,       )

Agency.                            )

____________________________________)

DECISION

On November 18, 1996, Cathy Carpenter (complainant) timely appealed

the final decision of the Department of Transportation (agency), dated

October 15, 1996, concerning her claim for compensatory damages following

a finding that she had been discriminated against in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et

seq., and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et

seq.<1>  The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. § 1614.405).<2>

At the time this matter arose, complainant was working for the

agency at the Coast Guard Training Center in Petuluma, California,

as a computer-assisted design (CAD) technician.  On April 13, 1994,

complainant filed a formal EEO complaint with the agency alleging

she had been discriminated against on the bases of her sex (female),

mental disability (depression), and retaliation for engaging in prior

EEO activity, when her immediate supervisor (male) subjected her to a

barrage of abusive, demeaning and confusing comments during the period of

December 4, 1992, through December 8, 1993, and when she was terminated on

December 22, 1993.  Complainant’s complaint was processed by the agency

and scheduled for hearing before an EEOC Administrative Judge (AJ).

On August 24, 1995, after a hearing at which fifteen witnesses testified,

the AJ issued a decision concluding that complainant had proven that

she had been the  victim of discrimination on each of the bases alleged.

To remedy its discriminatory conduct, the AJ recommended that the agency

rescind complainant’s removal and reinstate her with an appropriate back

pay award, as well as pay her attorney’s fees and costs.  In addition,

the AJ determined that the discrimination and retaliation complainant

experienced caused her physical and emotional damage for which she was

entitled to be compensated.  In this regard, the AJ recommended that

the agency pay complainant:

(a) Any out of pocket expenses for treatment by [complainant’s]

psychotherapist and psychiatrist;

(b) [Complainant’s] chiropractor bills (for treatment to relieve tension

caused by spinal problems arising out of these events);

(c) Any out of pocket expenses for medical care or prescription drugs

that were not paid by [complainant’s] health insurance plan;

(d) Non-monetary losses to include but not limited to sleeplessness,

headaches, stomach problems, fatigue, anxiety and depression.

On October 24, 1995, the agency issued a final decision, adopting the AJ’s

recommended finding of discrimination and retaliation.<3>  The agency

also adopted the remedies outlined by the AJ.  However, the agency held

that there was insufficient evidence of record to determine the amount

of compensatory damages to award complainant.  Therefore, complainant

was given the opportunity to submit additional information on this issue.

In response, complainant submitted medical receipts as well as affidavits

from herself, her husband, her sister, her mother, a former supervisor,

a friend, a board-certified licensed clinical social worker (complainant’s

“psychotherapist”), her chiropractor, and a massage therapist.  On October

15, 1996, the agency issued its final decision on compensatory damages,

awarding complainant $8,000.00 in non-pecuniary damages, $851.00 for

past pecuniary damages, and $1,872.00 for future pecuniary damages.

It is from this decision that complainant now appeals, arguing that the

agency’s decision is inconsistent and severely undervalues the amount of

damages in this case by failing to acknowledge the nature and severity

of the harm, as well as its duration.

PAST PECUNIARY LOSSES

The AJ’s decision reflects a finding that complainant suffered

significant emotional and physical harm as a result of the agency’s

discriminatory actions.  This harm resulted in direct medical costs for

complainant incurred between late 1992 and the time she submitted her

documentation relating to her claim for compensatory damages to the agency

(December 1995).  In September 1993, complainant began psychotherapy

with a licensed clinical social worker, initially paid for by the

agency’s Employee Assistance Program (EAP).  This therapist diagnosed

complainant as suffering from severe work-related stress and depression.

While noting that complainant had suffered some low-level depression in

the past, the clinical social worker found that this previous condition

was significantly exacerbated by the treatment complainant received from

her supervisor and her subsequent termination.  Some of complainant’s

symptoms reported by the clinical social worker were weight loss,

fatigue, insomnia, low self-esteem, poor concentration, and feelings

of hopelessness.  After the initial six psychotherapy sessions paid

for by the agency’s EAP, complainant personally incurred $350.00 in

order to continue her treatment.  The clinical social worker also

referred complainant to a psychiatrist, who prescribed anti-depressant

medication (Zoloft, Prozac and Trazodone), as well as a stress/depression

management class.  As a result, complainant incurred another $216.00 in

out-of-pocket expenses (after her health insurance paid) related to her

mental health care.

With regard to her physical health costs, the agency has conceded

that complainant established the necessary nexus between the agency’s

discriminatory conduct and the stress-induced severe back pain suffered by

complainant.  Complainant submitted documentation that she spent $2,491.00

in chiropractic care between December 1992 and October 1995.  During the

same time period, she also incurred bills of $1,025.00 for massage therapy

recommended by her chiropractor and $605.00 in acupuncture treatments.

In its final decision on complainant’s claim for reimbursement of her

medical expenses, the agency noted that complainant testified that in

June 1994, about six months after she was terminated, she began to get

“back on track” in regard to some of the more severe emotional symptoms

she had experienced.  Based on this testimony, the agency cut off its

liability for any past pecuniary damages incurred after June 1994.<4>

Based on this theory, the agency provided complainant an award of $65.00

in past mental health costs, $526.00 for the services of the chiropractor,

and $260.00 for massage therapy.  The agency awarded complainant none of

the expenses incurred for acupuncture because it found no evidence that

the acupuncturist treated complainant for a condition stemming from the

agency’s conduct.

The Commission, after careful examination of the record, is unpersuaded by

the agency’s arguments that its liability for compensatory damages should

be limited to the period of March 1993 through June 1994.  With regard to

the beginning of the period, the agency, by adopting the AJ’s decision,

is bound by the AJ’s characterization of the period of discrimination

commencing in December 1992, not March 1993.  The agency has produced

no other evidence indicating complainant suffered no harm as a result

of discrimination until March 1993.  The Commission further finds no

justification for cutting off the agency’s liability in June 1994.

Simply because complainant testified that this was the time period when

she felt she was turning the corner of recovery of her mental health

does not diminish the fact that the record documents that complainant

continued to experience symptoms of emotional stress long after June 1994.

For example, the clinical social worker testified at the hearing that

she assessed complainant in April 1995 and found her functioning but

still moderately depressed.  Affidavits from complainant’s family and

friends, written in November 1995, confirm that complainant’s depression

persisted and that she continued to be emotionally volatile, lethargic

and lacking in self-esteem.

Based on this evidence, the Commission finds that complainant has

adequately documented her out-of-pocket mental health costs related to the

agency’s discriminatory conduct and is entitled to an award of the full

$559.26 requested.  With regard to complainant’s chiropractor expenses,

the Commission finds that complainant is entitled to reimbursement for

the total $2,491.00 she spent between December 1992 and November 1995.

The agency’s argument that complainant would have been going to the

chiropractor throughout this period once per month for “maintenance”

visits even if she had not been subjected to discrimination is too

speculative and is not accepted by the Commission.  Complainant also

requested $1,025.00 for massage therapy expenses.  The agency determined

that there was a sufficient nexus between its discriminatory conduct

and the need for these treatments, but only until June 1994.  Therefore,

it awarded complainant $260.00.  For the reasons previously discussed,

the agency erred in not reimbursing the entire $1,025.00.  However,

the Commission concurs with the agency’s finding that complainant has

failed to provide evidence establishing a nexus between the agency’s

discriminatory conduct and her need for acupuncture.<5>  Therefore,

the agency correctly disallowed these expenses.

In summary, the Commission finds that complainant is entitled to an award

of $4,075.26 in past pecuniary damages for her mental and physical health

care costs resulting from the agency’s discriminatory actions.

FUTURE PECUNIARY LOSSES

In a report prepared on November 28, 1995, the clinical social worker

offered the opinion that complainant was currently suffering psychological

injury from the illegal discrimination she had endured and estimated that

she would need an additional “twelve to eighteen months of intensive and

ongoing psychotherapy.”  Complainant’s chiropractor also estimated she

would need an additional year of twice monthly visits for the treatment

for her back pain.  In its final decision, the agency agreed to reimburse

complainant for one year of psychotherapy treatment on a once a month

basis.  On appeal, complainant argues that she needed weekly treatments

for a period of one year.  The agency also agreed to pay for one year

of  chiropractor visits on a once a month basis.  Complainant urges that

the chiropractor’s recommendation of twice per month be reimbursed.

In light of complainant’s past history of weekly psychotherapy sessions

and the clinical social worker’s recommendation that she receive

“intensive and ongoing psychotherapy,” the Commission finds that

complainant should be reimbursed for twelve months of psychotherapy at

intervals determined appropriate by her therapist up to once per week.

In addition, on the recommendation of her chiropractor, complainant

should be reimbursed for twice monthly chiropractor visits for a period

of twelve months for back pain.

NON-PECUNIARY LOSSES

The agency awarded complainant $8,000.00 in non-pecuniary damages.

On appeal, complainant asserts that agency severely underestimated

both the severity and the duration of the harm that resulted from its

discriminatory actions.  Complainant requested $200,000 for the pain

and suffering she endured.  In support of her claim, in addition to the

medical evidence from her clinical social worker and chiropractor,

complainant submitted affidavits from herself, her husband, her

mother, her sister, a friend, and a former supervisor who attested

to the emotional and physical pain she suffered as a result of the

discrimination.  The statements all describe a significant change in

complainant’s personality after she began working for the agency.

The affiants stated that complainant went from an enthusiastic,

hard-working and energetic person to someone who was perpetually

depressed, emotionally volatile, lethargic and lacking in self-esteem.

Complainant described her “devastation” when she was terminated and

said she had a recurring sense of loss and inability to trust anyone.

She also said she has been unable to control her emotional outbursts.

Complainant stated the her emotional problems, in combination with

her constant back pain, forced her to curtail many of the activities

she formerly enjoyed.  Complainant and her husband also indicated that

they suffered significant marital problems as a result of the stress

and depression complainant experienced because of her employment with

the agency.  Her husband indicated that he was also seeking therapy to

deal with these problems.

Section 102(a) of the Civil Rights Act of 1991, 105 Stat. 1071,

Pub. L. No. 102-166, codified at 42 U.S.C. § 1981a, authorizes an award

of compensatory damages as part of make-whole relief for intentional

discrimination in violation of the Rehabilitation Act of 1973, as

amended.  See West v. Gibson, 119 S.Ct. 1906 (1999).  Section 1981a(b)(3)

limits the total amount of compensatory damages that may be awarded

each complaining party for future pecuniary losses, emotional pain,

suffering, inconvenience, mental anguish, loss of enjoyment of life,

and other non-pecuniary losses, according to the number of individuals

employed by the respondent.  The limit for a respondent who has more than

500 employees is $300,000.  42 U.S.C. § 1981a(b)(3)(D).  Non-pecuniary

losses are losses that are not subject to precise quantification

including emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, injury to professional standing, injury to

character and reputation, injury to credit standing, and loss of health.

There are no precise formulas for determining the amount of damages for

non-pecuniary losses.  An award of compensatory damages for non-pecuniary

losses, including emotional harm, should reflect, however, the extent

to which complainant has established that the agency’s actions directly

or proximately caused the harm (“the nexus”), and/or the extent to which

other factors also may have caused the harm.  In addition, a proper award

should be consistent with awards made in similar cases.  The agency

should consider that Commission precedent, as well as jury and court

awards, for non-pecuniary damages based on emotional harm.  See, e.g.,

Rountree v. Department of Agriculture, EEOC Appeal No. 01941906 (July 7,

1995) ($8,000 award based on complainant’s statement, and those of his

co-workers, concerning the emotional distress he experienced as a result

of a discriminatory performance rating); Smith v. Department of Defense,

EEOC Appeal No. 01943844 (May 9, 1996) ($25,000 found to be an appropriate

award for non-pecuniary damages in a sexual harassment case); Lawrence

v. United States Postal Service, EEOC Appeal No. 01952288 (April 18, 1996)

($3,000 award for non-pecuniary damages in a sexual harassment case); and

Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November

13, 1995) ($50,000 award for pain, suffering and emotional distress where

complainant produced sufficient evidence, including supporting statements

from his psychiatrist, to establish that the agency’s acts of reprisal

substantially contributed to the worsening of complainant’s mental

condition to the point where he had to take anti-depressive medication).

After careful consideration of all the evidence of record, as well as the

arguments of both parties on appeal, it is the decision of the Commission

that the agency undervalued the amount of non-pecuniary damages incurred

by complainant as a result of its discriminatory actions and thus erred in

only awarding her $8,000.00.  The evidence establishes that complainant

suffered considerable and long-term emotional and physical harm directly

attributable to the agency’s discriminatory actions.  While the Commission

recognizes that the record indicates that complainant had experienced

some previous low-level depression and back problems, the agency does

not dispute that its discriminatory conduct severely exacerbated those

problems, resulting in changes in complainant’s personality, strains in

her relationships with those close to her, and a loss in her enjoyment

of life which had not previously existed.  Since working for the agency,

complainant has had to seek ongoing psychological and physical health

care, including the need for anti-depressant medication.  Based on the

totality of the evidence, the Commission finds that complainant should

be awarded $35,000.  See Wallis v. United States Postal Service, EEOC

Appeal No. 01950510 (November 13, 1995).

CONCLUSION

Accordingly, based on a thorough review of the record, and for the

reasons stated above, the Commission MODIFIES the agency’s decision on

complainant’s claim for compensatory damages.  Pursuant to this decision,

the agency shall comply with the following Order.

ORDER

In addition to the relief already provided complainant by the agency

following its finding of discrimination, the agency shall take the

following remedial action:

(1) The agency shall, within sixty days (60) calendar days of the date

this decision becomes final, issue complainant a check for $39,075.26

representing the past pecuniary damages and non-pecuniary damages

owed complainant.

(2) In addition, upon receipt of documentation of charges, the agency

shall promptly reimburse complainant for the following future pecuniary

damages: (a) twelve months of psychotherapy of a frequency (up to once

per week) determined by complainant’s therapist; and (b) twelve months

of twice monthly chiropractor visits for back pain.

ATTORNEY’S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an

award of reasonable attorney’s fees incurred in the processing of the

complaint.  29 C.F.R. § 1614.501(e).  The award of attorney’s fees shall

be paid by the agency.  The attorney shall submit a verified statement of

fees to the agency — not to the Equal Employment Opportunity Commission,

Office of Federal Operations — within thirty (30) calendar days of this

decision becoming final.  The agency shall then process the claim for

attorney’s fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K1199)

Compliance with the Commission’s corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C.  20036.  The agency’s report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant.  If the agency does not comply with the Commission’s order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. § 1614.503(a).  The complainant also has the right to file a

civil action to enforce compliance with the Commission’s order prior

to or following an administrative petition for enforcement.  See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. §§ 1614.407, 1614.408), and 29 C.F.R. §

1614.503(g).  Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled “Right to File A Civil Action.”  29 C.F.R. §§ 1614.407

and 1614.408.  A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. §

2000e-16(c)(Supp. V 1993).  If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated.  See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. § 1614.409).

STATEMENT OF RIGHTS – ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY’S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18

(November 9, 1999).  All requests and arguments must be submitted to

the Director, Office of Federal Operations, Equal Employment Opportunity

Commission, P.O. Box 19848, Washington, D.C. 20036.  In the absence of

a legible postmark, the request to reconsider shall be deemed timely

filed if it is received by mail within five days of the expiration of

the applicable filing period.  See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. § 1614.604).

The request or opposition must also include proof of service on the

other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request.  Any supporting documentation

must be submitted with your request for reconsideration.  The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances.  See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint.  However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court  WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision.  In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission.  If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN

THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD  OR   DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

“Agency” or “department” means the national organization, and not the

local office, facility or department in which you work.  Filing a civil

action will terminate the administrative processing of your complaint.

FOR THE COMMISSION:

March 17, 2000

Date                  Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed.  I certify

that this decision was mailed to complainant, complainant’s representative

(if applicable), and the agency on:

Date

1 On November 9, 1999, revised regulations governing the EEOC’s

federal sector complaint process went into effect.  These regulations

apply to all federal sector EEO complaints pending at any stage

in the administrative process.  Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal.  The regulations,

as amended, may also be found at the Commission’s website at WWW.EEOC.GOV

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.  Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination.  These regulations can be found on EEOC’s

website: WWW.EEOC.GOV.

3 In its decision, the agency stated that it was adopting the AJ’s finding

of sex discrimination and retaliation.  It was silent, however, on the

AJ’s additional finding that the agency failed to provide complainant

with reasonable accommodation to her mental disability by assigning her to

another supervisor.  As the agency did not expressly reject or modify this

finding, the Commission deems that it accepted it.  64 Fed. Reg. 37,644,

37,657 (1999)(to be codified at 29 C.F.R. § 1614.109(i)).

4 It should be noted that the AJ in this case found that complainant’s

supervisor’s discriminatory conduct began in December 1992.  However,

in its final decision on damages, the agency limited the damage period

to March 1993 through June 1994.

5 For example, on some of the acupuncture bills it appears that

complainant was being treated for hypertension.

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