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VA

VA shooting survivor victimized by ‘bizarre’ federal worker’s comp maze

The Department of Veterans Affairs Building on Vermont Avenue in Washington, D.C. (JeffOnWire/Flickr)

When a distraught patient opened fire at the VA Medical Center in February, Albert Gaines’ long ago military training kicked into gear.

“When I saw the arm come up, I knew what was next, pow, pow, pow,” said Gaines, who was doing his job, cleaning patient rooms, when gunfire erupted. “I hit the deck to minimize the target.”

Now, three months after what his bosses at the hospital call “the active shooter incident,”the 65-year-old Riviera Beach man still feels like a target is on him.

Although the U.S. Marine Corps veteran was one of two people who were shot in the emergency room, he said he can’t get officials to understand either his physical pain or his psychological trauma.

His request for worker’s compensation was denied last month. While he is appealing the decision, in the meantime, he will continue to live without a paycheck.

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“I took one for the team, but this is the way your team treats you,” said Gaines, who has worked in housekeeping at the Riviera Beach hospital since 2016. “People can’t believe what I’ve gone through.”

By any measure, both Gaines and Dr. Bruce Goldfeder were lucky when the shooter, identified by authorities as Larry Ray Bon, opened fire. While Goldfeder was shot in the neck when he wrestled the gun away from Bon, he survived. A bullet shot toward Gaines ricocheted off a door and grazed his buttocks.

However, while the bullet caused an abrasion that has healed, Gaines said he has yet to recover from the jolt of diving for cover.

Standing in the hallway when an emergency room nurse ran by shouting “Gun, guy’s got a gun,” Gaines said he dove through a partially opened door to escape. The plunge aggravated existing knee and shoulder problems and his lifelong battle with stenosis, a painful affliction that puts pressure on nerves in the spine.

Further, he said, while he didn’t expect the shooting to affect him emotionally, it does. “I’ll be reading a book and the mind just goes back and relives that moment,” he said.

Various doctors at the VA confirmed his claims.

“The patient has chronic neck pain and this has been exacerbated after a fall that he sustained only a few weeks ago, as he was trying to dodge a bullet from the recent incident in the emergency room (where) a Veteran pulled out a handgun and started shooting,” neurologist Dr. Jesus Lizardi wrote on March 25.

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A day later, his primary care physician, Dr. Inna Genel, made similar findings. She noted that Gaines had difficulty walking because of pain in his hip, neck, knee and spine. She further said she suspected he was suffering from post-traumatic stress disorder.

“I recommend that my patient Alfred Gaines should be ‘off duty’ status at this time pending future mental and physical exams by specialists due to multiple health issues,” she wrote.

Dr. William Molinari, an orthopedic surgeon, also initially agreed that Gaines should remain on leave. “I do not believe he can comfortably perform his work duties eight hours a day,” Molinari wrote after examining Gaines on March 7 and 12.

However, later, when contacted by workers’ compensation officials, Molinari said Gaines could return to do “light duty” work, according to a letter Gaines received from VA officials explaining why his request for workers’ compensation benefits had been denied.

“The (office) received medical documentation from an orthopedic surgeon (Dr. Molinari) stating that based on a knee injury, you should not report to your normal VA duties,” wrote Steve Plourd, supervisor of employee and labor relations at the hospital. “Your injury was in the buttocks and you have a pre-existing injury to your knee.”

The phrase “pre-existing injury” was repeatedly used to explain why Gaines was not eligible for workers compensation benefits. In a five-page letter, the Office of Workers’ Compensation Programs at the U.S. Department of Labor, offers various — sometimes contradictory — reasons why Gaines’ claim was being rejected.

At one point, the letter calls his injury “the alleged buttock wound,” later noting that because his wound was treated by a nurse practitioner, not a doctor, the medical record “has no probative value.”

It dismisses his doctors’ claims that Gaines suffers from chronic pain. “Pain alone is not a compensable diagnosis,” the agency wrote.

It is equally dismissive of Genel’s recommendation that Gaines not be forced to return to light duty because he fears being injured again. “It is a well-established principle of workers’ compensation that fear of a new injury is not a basis to pay benefits,” it wrote.

Attorneys who handle federal workers compensation claims said such responses are sadly typical. The system is stacked against employees, said Boston attorney Daniel Shapiro, who is one of fewer than 100 lawyers in the country who pursue such compensation claims for federal workers.

By law, employees only have to prove that their jobs contributed to a medical problem, he said. Even though the standard is low, examiners at the U.S. Department of Labor routinely deny valid claims, he said.

Since most of his cases involve postal workers, Shapiro offered the example of a carrier who needs knee replacements after spending 25 years on the job. In that time, the worker has walked 35,000 miles and climbed 7 million stairs while carrying a bag that weighs up to 70 pounds, he said.

“Do you think his job contributed to some degree to his need for knee replacement surgery?” Shapiro asked rhetorically. “Nine out of 10 people will say yes and the tenth works for the Department of Labor. I get that case denied every single day by the Department of Labor.”

In response to a request for comment about Shapiro’s claims, a spokesperson for the Labor Department said, “The Office of Workers’ Compensation Programs (OWCP) is dedicated to educating federal employees about their interests in the event they become injured or ill while on the job.”

The email then detailed the kind of evidence workers must provide to document their injuries and links to its website where additional information is available about the department’s other compensation programs.

Such online information may be the only help available to many workers. Few attorneys handle federal workers’ compensation cases because the law prohibits lawyers from working on contingency, Shapiro said. The worker must pay an attorney by the hour — a financial burden for low-paid federal workers.

That means most workers must represent themselves in a complicated process that is designed to prevent them from getting benefits, he said.

Further, employees can’t go to court to seek an independent decision by a jury or a judge. By law, all claims are resolved through an administrative process. The final arbiter is the Employees Compensation Appeals Board in Washington, D.C.

“It’s bizarre. It’s stupid,” Shapiro said of the intransigency of the decision-makers.

To launch his appeal, Gaines has gone to a doctor, who promises that he can explain his injuries in a way that will change the Department of Labor’s opinion. In the rejection letter, the claims examiner said the medical records from the VA doctors didn’t show a clear link between the shooting and Gaines’ other lingering ailments.

In his medical report, Dr. Bruce Kammerman wrote in bold that Gaines’ current medical condition is “a direct result of his required work duties” on Feb. 27.

“There is a definite causal relationship with the witnessing of a workplace gun shooting and being hit (by) a bullet, and the emotional trauma that he is suffering,” Kammerman wrote, calling Gaines’ PTSD acute. “There is also a causal relationship with diving to the ground and the traumatic force transmitted to his spine, right hip, right shoulder and right knee.”

Gaines, who has not been paid since late April when he used up all his vacation and sick time, said he is hopeful Kammerman’s report will change the minds of those who now control his financial future.

Hospital officials said in a letter that Gaines should accept the light duty it offered him. Since he can no longer clean patient rooms, they told him he could instead work as an “ambassador” at the front desk of the hospital.

If the work is too taxing, Gaines can ask that adjustments be made by filing paperwork to the VA’s Reasonable Accommodations Program, wrote Plourd, supervisor of employee relations.

Gaines said he isn’t interested. Returning to the hospital brings back memories of the shooting, increasing his anxiety, he said. His body hurts. He said he doesn’t have the physical or emotional strength to spend eight hours greeting patients and visitors.

In a letter to workers’ compensation agency, he said he has been treated unfairly.

“I feel like a criminal alleged guilty of a crime and must prove my innocence after such a traumatic ordeal in the performance of my duties as a federal employee,” he wrote. “It’s obvious my words are counted as nothing and my actions even less — I suffer everyday through no fault of my own.”

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© 2019 The Palm Beach Post (West Palm Beach, Fla.)

Distributed by Tribune Content Agency, LLC.