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Home Work Comp Medical Reimbursement

Many medical complaints but no permanent damage

civilrightsfed by civilrightsfed
February 1, 2020
in Deposition, Deposition, Documentation, Earnings, EEOC Claim, EEOC Complaint, Evidence Of Record, Examine, Medical Claims Review, Medical Documentation, Medical Evidence, Medical Expenses, Medical Reimbursement, Past Pecuniary, Pecuniary Damages, Pecuniary Losses, Punitive Damages, Record Keeping, Reimbursement, Saving Medical Bills, Substantial Evidence, Winning EEOC claims
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The person, whose appeal I am quoting from, mentioned medical complaints of pain and suffering, but made no mention that it would be permanent, nor did any of her medical opinions.

medical documentation

3. Non-Pecuniary Damages

Complainant has requested an award of non-pecuniary damages in the

range of $85,000 to $100,000.  Complainant’s brief on appeal indicates,

however, that complainant arrived at this range by including injuries

allegedly sustained on account of actions of the agency preceding

the effective date of the CRA 1991, actions of the agency for which no

finding of discrimination was entered in the underlying case (for example,

complainant’s separation from the agency after the events at issue in the

underlying case), and a “presumption that these injuries are permanent

and will continue for the rest of [complainant’s] life,” with her life

expectancy estimated at an additional 29.5 years.  As explained above,

however, compensatory damages are payable only with regard to conduct

of the agency which occurred after the effective date of the CRA 1991,

and only with regard to matters where there has been a finding of

discrimination in this case.  Further, complainant bears the burden of

proof with regard to the expected duration of her injuries.  E.g., Rivera,

EEOC Appeal No. 01934157.  She has not submitted evidence to support

a finding that the effects of her injuries will continue indefinitely;

neither  has she cited any authority to support her argument that she is

entitled to a presumption that her injuries will continue for the rest of

her life.  In addition, complainant requested damages for harm incurred

during the processing of her EEO complaint.  Compensatory damages are

not payable, however, for injury attributable to participation in the

EEO process.  Wallis, EEOC Appeal No. 01950510.

B. Evidence of Causation

1. Complainant’s statement

Complainant stated that, as a result of the agency’s actions, she

experienced insomnia, memory loss, depression, damage to her sex life,

temporomandibular joint (TMJ) dysfunction, ulcerated colitis, and a

decrease in physical exercise and associated weight gain.  Complainant

stated that she was “extremely damaged in [her] ability to earn income”

and experienced “social ostracism” in addition to the damages to her

health.  Complainant also requested damages for the agency’s treatment

of her during the processing of her complaint and the damage it caused

to her husband and her marriage.

2. Statements of Other Witnesses

Complainant submitted an April 14, 1996, statement from her husband,

MS, who at the time of the events at issue was also employed by the

agency in the same work area as complainant.  MS stated that since

complainant initiated her first EEO complaint in 1991 (WGS-92-001),

“she has suffered a variety of physical and mental problems that I feel

are a direct result of stress from the investigation process and agency

and personnel behavioral patterns that resulted in hostility toward

[complainant] by supervisors, managers, and co-workers.”  MS stated that

complainant’s physical symptoms included severe gastrointestinal pains

diagnosed as ulcerative colitis<2> and severe headaches, both of which

curtail her ability to work and to travel.

MS also described changes in complainant’s personality which he had

noticed “since the EEO processes started.”  MS stated that before,

complainant was a “generally cheerful, friendly, optimistic person,”

but that she had since experienced periods of severe irritability which

had placed a strain on their marriage; that complainant has problems

sleeping, grinding her teeth and tossing and turning most of the night,

which also disturbs his sleep; and memory loss.  MS noted that complainant

experienced “overt hostility” from her coworkers, and felt isolated and

friendless in her work environment.

Complainant also submitted an April 18, 1996, statement from a former

co-worker, RM.  RM stated that she has known complainant as a close

friend for more than 25 years, and worked with her from January 1991

until October 1995, when both were separated from the agency in a RIF.

RM noted that she experiences gastrointestinal problems similar to

those experienced by complainant, and that they often discussed their

symptoms.  RM stated that in early 1991, complainant was not bothered

by any such problems, but by the end of the year frequently complained

of gastrointestinal pains and bouts of diarrhea, which interfered with

her (complainant’s work) and made it “almost impossible” to go far from

a restroom.  RM also stated that she knew of and witnessed complainant

to experience severe headaches which also interfered with her work,

as well as severe allergy attacks which RM thought might have been

aggravated by stress.  RM further stated that complainant was spending

long hours at night on the paperwork associated with her EEO complaints,

therefore not getting adequate sleep, which caused her to be over-tired

and further interfered with her work.  RM also stated that, starting in

the later part of 1991, the atmosphere in the office changed, in that

colleagues stopped coming by the office she shared with complainant,

and would not acknowledge the two of them in the hallways, although they

would acknowledge RM if she were alone.  RM also noted that office staff

members became uncooperative with both of them, and would not offer any

assistance beyond what was absolutely necessary.

3. Medical Evidence

In support of her request for damages, complainant submitted a June 21,

1996, report from Dr. CD, her gastroenterologist.  Dr. CD stated that he

had treated complainant since 1988 for chronic symptoms of abdominal pain,

bloating, cramps, intermittent loose stools with mucous, and bleeding.

Dr. CD stated, “This has been diagnosed as irritable bowel syndrome which

bears a direct relationship to the amount of stress under which she has

and continues to labor.”  Dr. CD noted that complainant had been treated

with a class of drugs called anticholinergics, but that the treatment

had been stopped on account of side-effects, which included sleepiness

and dry mouth and eyes.  Dr. CD further stated:

The primary area of stress in her life has been directly related to her

work experience.  This has been the primary aggravating factor over the

course of the last eight years.

… Over the last two years she has continued abdominal pain, bloating,

[and] intermittent diarrhea with mucous as she has had in the past.

Again, this has a direct relationship to her work environment over that

period of time.

Complainant also submitted a July 1, 1996, report from Dr. JG, her

psychotherapist.  Dr. JG noted that complainant began treatment with him

in February 1988, at which time her chief concern was marital problems

which had led her and her husband to separate.  Dr. JG stated that,

at that time, complainant reported her work situation as being “quite

positive and not a source of significant stress.”  Dr. JG noted that over

time complainant’s relationship with her husband “was improved although

there was room for more improvement.”  Dr. JG continued:

During and before the time that [complainant] filed her first EEO

complaint she complained of increasing stress at work, and she was

particularly concerned about her physical health in that she had been

diagnosed with ulcerative colitis,<3> a condition which is known to

be exacerbated by emotional stress.  Her complaints about her colitis

were frequent.  It seemed very likely to me that her stressful situation

at work was contributing to her ulcerative colitis symptoms.  Time was

spent in therapy discussing these physical problems and [complainant’s]

frustration at work which put additional stress on the relationship.

In light of the fact that the marital situation was improving and that

[complainant’s] complaints about the stress and frustration at work

were increasing in frequency and intensity, it seems probable to me

that the work situation was a significant factor in [complainant’s]

physical problems.

Complainant further submitted a July 11, 1996, report from her dentist,

Dr. TT.  Dr. TT stated that he had treated complainant since 1989,

at which time she already had a four-year history of cranio-mandibular

problems.  Dr. TT diagnosed complainant as having Displacement of Disc,

Recurrent; Degenerative Arthritis; Myalgia; and Dislocation of Jaw,

Closed, right side.  Dr. TT noted that by December 1994, complainant had

shown improvement with use of an orthotic device, although her condition

had not returned to normal.  Dr. TT stated, in relevant part, “As per

patient history, throughout her treatment there were stress complication

factors related to her employment environment which aggravated her

dysfunction and impaired her return to normal function and range of

motion.”  Dr. TT noted that complainant returned to him in April 1996

with a decrease in function and an increase in bruxism (clenching and

grinding teeth).  He noted that minor clenching and grinding is normal,

but “a person under a lot of stress will clench and grind to a degree

that it can cause tooth wear, tooth loss, bone loss, [and] facial pain,

and exacerbate any condition related to temporomandibular joints.”

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