1. Past Pecuniary Damages
The AJ awarded appellant past pecuniary damages only to the extent
that such damages — in this case, past medical expenses — had not
been covered by appellant’s health insurance. The agency therefore
awarded appellant no past pecuniary damages on the ground that she
had not demonstrated that she had any out-of-pocket expense associated
with medical treatment. Prior to the issuance of the FAD in this case,
however, the Commission issued its decision in Wallis v. United States
Postal Service, EEOC Appeal No. 01950510 (November 13, 1995). In Wallis,
the Commission held that it will apply the “collateral source” rule in
compensatory damages cases: sources of funds collateral to the defendant
may not be used to offset the financial liability of the defendant.
Health insurance, even where funded by agency contributions, is deemed a
collateral source in that the agency was not seeking to insure itself
against injury to the employee caused by discrimination. Wallis,
EEOC Appeal No. 01950510. Here, as in Wallis, appellant is entitled
to recover the full amount of the fees charged for any medical services
she received in connection with the injury caused by the reassignment,
notwithstanding that any or all of those fees have been covered by her
health insurance. Double recovery is not an issue, because appellant’s
health insurer may recover from her monies it expended on her behalf. Id.
On remand, the agency will pay past pecuniary damages as substantiated
by billing statements submitted by appellant.
