Research Notes

Yet another “headscratcher” decision is issued by the U. S. Department of Labor (USDOL) in its Federal Employees’ Compensation Act (FECA) program.

Yet another “headscratcher” decision is issued by the U. S. Department of Labor (USDOL) in its Federal Employees’ Compensation Act (FECA) program.

You may recall one of our earlier newsletters in which I discussed a strange decision by USDOL/OWCP that revealed its misapplication of an American Medical Association publication (a newsletter article) to FECA claims, resulting in smaller benefits being paid to injured workers.  As stated in our newsletter, we filed a request for reconsideration to challenge OWCP’s mistake.

In an even stranger twist, OWCP has now “doubled down” on its mistake, forcing the matter to the appellate level at the Employees’ Compensation Appeals Board (ECAB).  In an OWCP decision dated 03/15/2016, the previously-awarded 3% permanent impairment rating for the worker’s permanent partial loss of use of each leg, initially issued on 03/25/2015, was simply reissued with a new date, and with these comments:

“[OWCP’s Second Opinion doctor’s] response [to OWCP’s non-examining District Medical Advisor – DMA] indicated a disagreement with the DMA on the basis of the use of the July/August 2009 [AMA Guides] Newsletter as the guide for you [sic] impairment rating. This disagreement was found to be irrelevant because the Federal Employees’ Compensation Act (FECA) Procedure Manual (PM) directs the use of this newsletter as the guideline for impairment calculations of your specific type for schedule award payments in the Office of Workers’ Compensation Programs [emphasis added].”

OWCP’s Procedure Manual does not have the force of a law or a regulation, and cannot override those legal authorities.  Curiously, in an earlier paragraph of the same decision, OWCP states: “The implementing regulations have adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment, as the appropriate standard for evaluating schedule losses.  Currently, schedule awards are calculated using the Sixth Edition of the AMA Guides.”  That Edition does not include the newsletter’s way of calculating impairments. …

As already proven to OWCP, the AMA specifically does not accept the “proposal” contained in their newsletter as authoritative, so they never adopted it nor did they amend the Guides to include it.  For that reason, OWCP’s own Second Opinion doctor rated the impairment in this case based on the AMA Guides themselves, not the newsletter. But since application of the calculation method contained in the newsletter will result in lower benefit payments, OWCP simply adopted it anyway for its own purposes – regardless of whether it is medically correct.

And so it goes when dealing with an agency whose decisions are not subject to judicial review.  We are preparing our ECAB appeal.


NOTE: Legislative proposals affecting FECA remain in the hopper in both houses of Congress, but no action has been taken on them.

Posted in Blog, FECA

The “exception that proves the rule” – How one OWCP claims examiner got it right in a FECA claim.

Sometimes we have so many problems dealing with  USDOL’s Office of Workers’ Compensation Programs (OWCP) in Federal Employees’ Compensation Act (FECA) claims that we forget it is within their power to do right by these injured workers.  The following case provides a lesson in how these claims can and should be handled by OWCP.

We filed a relatively straightforward carpal tunnel claim for a Postal worker with a history of repetitive motion work for many years. The claim was initially denied because OWCP said the doctor had not addressed the fact that she had worked in a management position, which required less repetitive motion for a period of time.

We then filed a reconsideration request with a new medical report addressing that issue. The Senior Claims Examiner (SCE), a Ms. Sanchez from the New York district office, called and spoke to our paralegal Erika Bauer and then to my partner Dan Goodkin. She said that the new medical report was not clear, because it said that the client’s work duties precipitated, aggravated, accelerated and caused the claimant’s condition. She felt that was confusing, and wanted to know which it was. While Dan disagreed that these terms were mutually exclusive, the SCE did let us know what evidence she needed in order to approve the claim.

We then wrote to the doctor again, and in his reply he explained that the condition was caused and then aggravated by employment, and provided a more detailed pathophysiological explanation of the process by which those things occurred.

The SCE then called back and said that was good enough on the causation issue, but that she needed some objective test results and a copy of all of the claimant’s treatment records since the initial filing. So we provided those, and the claim was approved.

What is the point of this story?  The point is that this SCE engaged in an interactive process with our office about the proof she felt was needed in order for her to make a final decision on the claim. This virtually never happens at OWCP.  Instead, the typical claims examiner would have just denied the reconsideration request, saying that the medical report we submitted was unclear and therefore insufficient. Then we would have filed another reconsideration request based on the doctor’s clarification, and the typical claims examiner would have denied the claim again, saying there were no objective tests results provided nor were all the treatment records since the claim filing, and therefore the medical evidence was still insufficient.  Then we would have had to file yet another reconsideration request (request #3) based on that additional information, and perhaps then the claim would have been approved. We have called this frustrating process “piecemeal adjudication”.

Questions: In a non-adversarial workers’ compensation system, where the evidence is supposed to be viewed liberally in favor of the claimant, why isn’t what SCE Sanchez did standard operating procedure?  Wouldn’t such a procedure, if instituted across the board in all claims, save tremendous amounts of time, money and effort for all concerned?


NOTE:  After the hearing held on it last month, there has been no further action taken by the Senate on S.2051, the current Postal Reform bill first introduced on 09/17/15 by Sen Carper. Since then, the White House has published its FY2017 budget, which unlike the previous one does not call for cuts in FECA benefits.  WILG is opposed to many of the provisions of S.2051 that affect FECA – benefit cuts, cost-shifting to other programs, etc.  We will keep you advised about this bill.

Posted in Blog

Without telling anyone, USDOL institutes an unjustified rule that disadvantages injured workers covered by the FECA program

We have discovered a highly questionable policy change by USDOL’s Office of Workers’ Compensation Programs (OWCP) regarding the way it calculates certain permanent disability benefits under FECA (workers’ compensation for federal employees).

This discovery came about because last September a doctor treating one of our clients protested to OWCP that they were instructing him incorrectly on how to “rate” our client’s leg disability.

Permanent “scheduled” disability ratings to certain parts of the body (e.g. arms and legs) under FECA must be calculated according to he American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (2008).  The doctor in the case in question used those Guides last year to rate the permanent impairment to both of our client’s legs, but OWCP told him he needed to instead use a calculation based on another AMA publication called “The Guides Newsletter”.  An article in that newsletter’s July/August 2009 issue, written by a doctor who was the Senior Contributing Editor of the Guides themselves, proposed a different way to rate the same disability, and OWCP told the doctor to use that method instead. In fact, OWCP had quietly incorporated this newsletter article into its Federal (FECA) Procedure Manual provisions about how to rate this type of disability.

The only problem was that the disability rating according to the established Guides was 10%, whereas the rating according to this newsletter was 2%.   The doctor protested and said the newsletter was just a proposed method of calculating disabilities, and asked why he shouldn’t use the Guides — which had been officially adopted by OWCP effective May 1, 2009 as the correct method of rating these disabilities. Meanwhile the Guides

themselves have not been amended to authorize use of this new method. OWCP refused to alter its position, and paid the 2% award to our client.

So we wrote to the AMA and asked whether the newsletter method had been accepted by the AMA as an amendment to the Guides.  The AMA wrote back and said no, the newsletter’s method was only a proposal that was never adopted by the AMA.

What’s wrong with this picture?  By simply adopting the newsletter’s way of calculating (and lowering) these permanent disability benefits, without even checking with the AMA to see if this new rating method had ever been adopted by the AMA, OWCP showed its desire to pay less-than-fair benefits to injured workers for no good reason.  And its actions certainly are contrary to the spirit of FECA, which is supposed to be a non-adversarial system that must be interpreted liberally in favor of the claimant. At this point there is no telling how many injured workers have been hurt by this practice.

We have asked OWCP to answer questions about this whole matter, and we intend to challenge the 2% award issued in our client’s case.


NOTE:  S.2051, the current Postal Reform bill, has been introduced in the Senate and a hearing on it was held last week.  WILG is opposed to many of the provisions of this law that affect FECA, since they reduce benefits, create cost-shifting to other programs, and are generally ill-advised.  We understand that the bill’s sponsor, Senator Tom Carper, intends to introduce a stand-alone FECA bill with the same provisions shortly.  We will keep you advised about these developments.

Posted in Blog, FECA

ECAB continues to issue outrageous decisions rejecting medical reports as “not rationalized” in FECA claims.

In FECA (federal workers’ compensation) claims, the highest legal authority for claims decisions is the Employees’ Compensation Appeals Board (ECAB). Yet that Board in the last few years has made a practice of upholding improper claim denials by the U. S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) that are based on the bogus assertion that the injured worker’s doctor’s medical report is not “rationalized”.  There is no question but that a rationalized medical report, stating there is a causal relationship between a work injury and the disabling medical condition(s), is necessary for a claim to be approved and paid.  But both OWCP and ECAB have made a practice of falsely claiming there is no medical rationale when clearly there is, resulting in denial of claims that should be approved and leaving the injured worker with little justice. This has contributed to an alarming pattern (see results of statistical study, below) of claim denials that are totally unjustified by any standard of fairness.

For example in a recent case filed by our office, an employee injured her back bending down to pick up something at work, resulting in a trip to the ER and subsequent surgery. The injured worker’s treating doctor stated: “Concerning the [injury from bending over at work] any movement that requires bending at the waist puts the lumbar spine at a disadvantage. This shifts the fulcrum of the weight to the lumbar spine and the paraspinal musculature versus being on the larger joints and muscles of the pelvis. This change of force in my medical opinion exacerbated her underlying pathology [history of lumbar spine disease with prior surgery] causing the disc herniation.  Concerning the need for repeat surgery, there is a known 15 percent to 20 percent risk of repeat disc herniation after any microdiscocetomy procedure. With the patient’s predisposing factors and history of multiple lumbar surgeries and collapse of the disc space, it was deemed appropriate to proceed with a decompression and fusion to treat the patient’s symptoms and prevent recurrence of her symptoms at that time.”

In spite of the doctor’s discussion of how the work injury caused the disability and need for surgery, OWCP found the report was “not supported by medical rationale containing an explanation of the nature of the relationship between her diagnosed condition and [the work injury].”  On appeal to ECAB, the Board agreed with OWCP that the evidence was insufficient, recently holding that “While none of the reports of the [worker’s] physicians were [sic] completely rationalized, they are consistent in indicating that [she] sustained employment-related injuries … and are not contradicted by any medical evidence of record. Therefore, while the reports are not sufficient to meet [the worker’s] burden of proof to establish her claim, they raise an uncontroverted inference between her claimed conditions and the employment incident of [date], and are sufficient to require OWCP to further develop the medical evidence.”

In so holding, the Board (1) falsely stated the treating doctor’s reports were not “rationalized” – they certainly were; and (2) ruled that the quoted report could never be considered sufficient for the purpose of accepting the claim.  The result is that now OWCP must send this injured worker to another doctor – one that it chooses – whose report will likely be considered “rationalized” and the claim will be denied again.

The irony of this situation – as pointed out by one of our colleagues – is that the ECAB decision holding that the treating doctor’s reports are not “rationalized” is itself not rationalized. It is clearly nonsense to state that this detailed medical report from the worker’s doctor is not “rationalized”, as can be seen by simply reading it. Since every FECA claim must include rationalized medical evidence, by using this logical sleight-of-hand OWCP and ECAB can blithely deny innumerable claims that are clearly valid by simply stating – without any actual rationale – that the medical evidence lacks “rationale”. This is not a “one-off” occurrence, as we have seen this same problem arise over and over again.

Our office has recently concluded a study of all ECAB decisions issued between June 1, 2014 and June 30, 2015 (a 13-month period).  Our study reveals that of the 1,936 appeals decided by the Board during that period, 463 (23.9%) were reversed or “remanded” (sent back) to OWCP for a new decision – in effect canceling the OWCP decision and requiring issuance of a new decision.  But of those that were reversed or remanded not a single ECAB decision overturned an OWCP claim denial based on alleged lack of medical “rationale”.  In other words, OWCP is free to improperly deny claims on this bogus ground, without fear of being overruled (much less, rebuked) by ECAB.  Despite this “stacked deck”, we and our colleagues are able to ultimately prevail in many such cases, but often this occurs after delays at OWCP and ECAB that should never have happened.

In a supposedly non-adversarial system with no judicial review, these ECAB decisions are outrageous and call for a study by Congressional and Senate oversight committees.

Posted in Blog, FECA, OWCP

Common misconceptions about federal disability retirement under FERS

Contribution, not cause, is key in FECA cases

Common misconceptions about federal disability retirement under FERS

Common misconceptions about federal disability retirement under FERS

There are many reasons why injured federal employees do not believe they are eligible for disability retirement under FERS.  Most federal employees who have worked in a position covered by FERS for at least 18 months are eligible for federal disability retirement under FERS if they have a medical condition that prevents them from carrying out the full duties of their official position. Here are some common misconceptions about eligibility for federal disability retirement under FERS:

1.       You do not have to be totally disabled from all work to qualify for federal disability retirement under FERS.

Per 5 USC §8451(a)(B), an employee is considered disabled if they are found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee’s position. There is no requirement that an injured federal worker be found totally disabled from all work in order to qualify for federal disability retirement under FERS.

2.       Even if you are fired for cause, you can still qualify for federal disability retirement under FERS.

Removal for misconduct does not preclude an individual’s receipt of disability retirement benefits if he can show that he was disabled from performing useful and efficient service in his position prior to the effective date of his removal. Delceg v. OPM, 100 M.S.P.R. 467 (2005). Please also see Henderson v. OPM, 2008 M.S.P.B. 191, August 4, 2008. In that case, handled by our firm, the appellant was removed from service after pleading guilty for distribution of marijuana. We were able to prove that he was disabled prior to his removal and he was granted disability retirement benefits under FERS.

3.     If you are working light duty, you may still be able to qualify for FERS disability retirement.

Any evaluation of useful and efficient service for disability purposes must be with respect to the employee’s official position, not an unofficial light duty assignment. Marino v. Office of Personnel Management, , 243 F.3d 1375 (Fed. Cir. 2001). This applies to postal workers seeking disability retirement under FERS as well. See Chavez. v. OPM, 11 MSPR 69 (2009).

4.       You can qualify for FERS disability retirement on the basis of non-work related injuries.

OPM will consider all disabling conditions whether they are on-the-job injuries, injuries accepted by OWCP as compensate, or whether they are completely unrelated to your federal service. In fact, you can establish entitlement to federal disability retirement under FERS even if the medical condition that is causing your disability predates your employment, providing you can show that you became disabled due to the medical condition after employment began.

5.       After retiring on FERS disability retirement, you can work for a non-federal employer and make up to 80% of the current rate of pay for the position from which you retired –  and still retain your disability retirement annuity!

Unlike social security or FECA wage loss claims, there is no deduction taken from a disability retirement annuity under FERS for wages earned in non-federal employment following disability retirement. As long as the annuitant earns less than 80% of the current rate of pay for the position from which she/he retired, her/his annuity will be unaffected. There are other limitations concerning the type of work that can be performed without impacting FERS disability retirement benefits that should be discussed with a FERS disability retirement attorney prior to undertaking employment following disability retirement.

As discussed above, there are many exceptions and nuances to FERS. Anyone considering filing a disability retirement application under FERS would be well served by consulting with a competent, experienced attorney well-versed in handling federal disability retirement applications. – DMG 4/9/14

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Practitioners Explain Strong Objections to Using AMA Guides 6th Edition in FECA claims

Practitioners Explain Strong Objections to Using Guides 6th Edition

By Elizabeth A. Morrow, Esq., cyber FEDS® Special Projects Editor

ASK THE EXPERT: Schedule award compensation — that is, compensation for the permanent impairment of a scheduled member or function due to a workplace injury — is one of the benefits available under the Federal Employees’ Compensation Act. See 5 USC 8107. However, as neither the FECA nor federal regulations specify how to calculate the degree of permanent impairment, the Office of Workers’ Compensation Programs adopted the American Medical Association’s Guides to the Evaluation of Permanent Impairment as the standard for evaluating scheduled losses. The sixth edition of the Guides, which applies to decisions issued by the OWCP on or after May 1, 2009, has generated significant controversy since its adoption.

cyber FEDS® asked Daniel Goodkin, Steven Brown, and Daniel B. Shapiro, attorneys who represent claimants in federal workers’ compensation cases, to explain why practitioners dislike the sixth edition and would like to see it abolished.

Q. Describe the basic differences between the fifth and sixth edition of the Guides.

Shapiro: Prior to the sixth edition, impairment was based on functional assessment. The sixth edition reflects a dramatic shift and bases impairment on the claimant’s diagnosis, rather than functional assessment. The major reason for the change was financial, in that many from the insurance, business, and financial communities thought a diagnosis-based assessment could be sold as a more objective approach and could be advertised as minimizing abuse. It was another example of the business, insurance, financial, and medical communities attempting to legislate for the exception rather than the rule and using that as a basis for devising the system that would diminish impairment ratings and therefore diminish dollar payouts. For an excellent summary of the history and evolution of impairment ratings, I recommend reading Dean Emily Spieler’s 2010 testimony before the Subcommittee on Workforce Protections of the Committee on Education and Labor.

Goodkin/Brown: The current version of the Guides was edited by occupational medicine specialists who gave the ratings their own values without explaining the basis of a rating and how it was determined. The sixth edition is “consensus derived,” which means insurance company physicians, along with a large group of defense attorneys, met and determined the impairment ratings. The term “consensus derived” means that ratings are not based on any empirical scientific data or epidemiological studies. The ratings, in short, are not based on any research and have not been replicated by national peer-reviewed standards. It also means that the authors and editors never mention a “minority view” on how something should be rated, if at all.

Q. Why are there so many objections to the approach used in the sixth edition?

Shapiro: All workers’ comp practitioners want to see the fifth edition of the Guides back in play because the basis for determining impairment was governed by what historically had been the most reliable approach — the functional assessment of an individual claimant. By individualizing impairment ratings through a personal functional assessment, the ratings are more accurate and generally are higher because it is not a one-size-fits-all approach.

Goodkin/Brown: Virtually every rating is significantly lower under the sixth edition based on the “consensus” of some unknown group of physicians. Doctors tell us the sixth edition is extremely difficult to understand and use. Many doctors in California and the other 39 states that have not adopted the sixth edition have refused to write reports using the sixth edition, calling it “illegal,” “voodoo science,” or “useless.” We have seen a substantial increase in disagreements between treating doctors and OWCP doctors with regard to ratings ever since the sixth edition was adopted. Under the fifth edition, the district medical adviser and primary treating physician often agreed on ratings. Now it is rare that they are in agreement.

Q. Describe the efforts being made to abolish use of the sixth edition, and why you think these efforts will or will not be successful.

Goodkin/Brown: The sixth edition has been challenged successfully in most states. As of 2011, only 10 states had adopted the sixth edition for state workers’ comp. The OWCP adopted the sixth edition without any vetting, hearings, or attempts to address the concerns and criticisms that have been heaped upon the Guides by medical and other professionals. However, given the current climate in Washington D.C., it will be challenging to secure more money for this effort, no matter how unfair the sixth edition is to injured federal workers.

Reprinted with permission from: cyberFEDS® on the Web, Copyright © 2013 by LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. For more information on this or other products published by LRP Publications, please call 1?800?341?7874 or visit our website at: http://www.cyberfeds.com or http://www.lrp.com.

Posted in Blog, Federal Law Articles

FECA Legislative Update

FECA UPDATE

This is a summary of recent legislative and practice developments regarding the Federal Employees’ Compensation Act (FECA) for injured federal workers, FECA attorneys and others who have interest in OWCP claims. 

 1.         Legislative proposals update

 No new legislation affecting FECA has been introduced in the current (113th) Congress, but prior proposals are still actively being discussed on the Hill.   

 Federal Injured Employees’ Reemployment Act of 2010 (FIERA)

 Although this set of USDOL proposals, introduced to the public on February 9, 2011 by OWCP and discussed in various hearings on the Hill thereafter, never became law it remains a touchstone for discussion in Congress.  The White House has included many of its provisions in its current budget.  As a reminder, these are the outlines of this set of proposals:      

 Vocational rehabilitation – can start six months after an injury, even if the employee is not yet considered permanently disabled.  Increases maintenance allowance paid to workers in rehab by 50%.  Allows OWCP to reimburse employers who hire a previously injured federal worker for up to three years, and allows OWCP to reimburse federal agencies that reemploy injured workers after they suffer a recurrence of disability.

 Total disability rates for new injuries (occurring after effective date) payable at 70% of wages for all employees instead of at the current 66-2/3% basic rate or 75% of wages (with dependent). 

 Total disability rates, for new injuries or periods of disability, reduced from 75% or 66-2/3% of wages to 50% of wages after the employee reaches Social Security retirement age and has been receiving benefits for at least a year.   

 Schedule award benefits payable at 70% of wages for all employees instead of at 66-2/3% or 75% of wages.  All awards to be calculated on the pay rate of a GS-11 step 3 employee regardless of the injured employee’s actual wages.  Awards to be paid in a lump sum, and also may be paid while employee is receiving wage-loss benefits. 

 Schedule awards for disfigurement increased from maximum of $3,500.00 to maximum of $50,000.00, for new injuries, with this maximum adjusted yearly for cost-of-living increases.

Earnings reporting – Requires all disabled claimants receiving benefits for total or partial disability to report earnings, but eliminates this requirement, and the requirement to participate in vocational rehabilitation, after the employee’s benefits are reduced due to reaching Social Security retirement age.

Death benefits payable at a maximum of 70% of deceased employee’s wages for all dependents, reduced from current 75% maximum.  Adds domestic partners as eligible survivors.

Continuation of Pay [COP] to be recouped by OWCP from third party settlements and credited to federal employing agency that paid it – currently COP cannot be recouped.  45-day period of COP increased to 135 days for employees injured in a zone of armed conflict, and COP for those employees is available for both traumatic and occupational disease claims.

Burial expense reimbursement maximum increased from $800.00 to $6,000.00 for new death claims.

Physicians’ assistants and nurse practitioners are added to the list of recognized medical providers.

Election between workers’ comp and retirement – Requires employees who have retired to permanently elect to receive either OWCP benefits or retirement (CSRS or FERS) benefits within a reasonable time after retiring.

Sanctions – Imposes a new sanction (suspension of benefits) against employees who fail to cooperate with OWCP field nurses.  Cooperation with such nurses has been voluntary. 

Matching of benefits and earnings – Allows new automatic matching of FECA recipients to those receiving earnings per Social Security records to eliminate improper payments. 

Chargeback – Allows reimbursement of claims administration expenses to be paid from the Employees’ Compensation Fund, and requires federal agencies for the first time to pay their fair share of these costs back to OWCP. 

 H.R. 2465

 The result of the bipartisan efforts of House staffers involved with April and May, 2011 hearings on FECA, this bill entitled “Federal Workers’ Compensation Modernization and Improvement Act” was introduced on July 8, 2011 and was quickly reported out of committee on July 13, 2011.  This bill contained only non-controversial revisions to FECA, namely:

 

District of Columbia employees

Amends §8101 to exclude employees of the District of Columbia, who have their own WC law effective 03/03/79.

Physicians’ Assistants and Nurse Practitioners

Amends §§8101(3), 8103(b), and 8121(6) to provide that the services of Physicians’ Assistants or Nurse  Practitioners are covered medical services and allow them to certify disability for periods of COP in traumatic injury cases only.

Injuries outside of U. S.

Amends §8102(b) to strike outdated language, and to include injuries from terrorist attacks.

Schedule Award Disfigurement

Amends §8107(c)(21) – maximum of $3,500 increased to $50,000 for disfigurement of the head, face or neck, effective for injuries starting 3 years prior to date of enactment. Adds language adjusting this amount yearly using the existing FECA cost of living adjustment in 5 U.S.C. §8146a.

Social Security Provisions

Amends §8116 by adding section (e) to allow USDOL to require claimants to consent to release of SSA earnings records to OWCP as a condition of receiving FECA benefits.

Continuation of Pay / Zone of Armed Conflict

Amends §8118 to expand continuation of pay from 45 days to up to 135 days to ease benefit delivery for employees injured in a zone of armed conflict – applies to both traumatic and occupational injuries.  Also increases time to claim COP from 30 to 45 days for these employees.

Subrogation-Continuation of Pay (COP)

Amends §§8131 and 8132 to allow COP cost to be recouped from Claimant’s recovery from liable third party by DOL, credited to employing agency that paid it.  Eliminates double recovery of wares.

Burial Expenses

Amends §8134 – Increases maximum benefit from $800 to $6,000 for burial expenses (applies to death claims after enactment) and adds language adjusting this amount yearly using the existing FECA cost of living adjustment in 5 U.S.C. §8146a.

Employees’ Compensation Fund – claim administrative expenses

Amends §8147 to allow for payment of administrative expenses from the fund to require agencies to pay their share of costs associated in administering the statute.

 

The WILG FECA Section supported this bill, as did several federal employee unions.  This bill was passed by the full House on November 29, 2011, but the Senate never voted on it.  It has not yet been re-introduced in the current session of Congress. 

 H.R. 2309

 This Postal reform bill affecting FECA was introduced by Darrell Issa (R-CA) on 06/23/11 and was reported out of committee on October 13, 2011.  It was later amended twice in early 2012. WILG opposed this bill, as it contained several very anti-employee provisions pursuant to an amendment introduced by Dennis Ross (R-FL), namely:

 

Reduce disability compensation from 66.67% to 50% for both partial and total disability

WILG Comment:  This would apply to both temporary and permanent disabilities, which would result in temporary total disability (TTD) and temporary partial disability (TPD) benefits substantially less than the typical 2/3 benefit provided by most state workers’ compensation systems.  Most injured Postal workers struggle to survive on comp as it does not include overtime in lost wage computations.  

Eliminate augment-ted compensation for dependants

WILG Comment: This idea been criticized by several unions because injured workers who have dependents generally have more living expenses and need the extra benefit level.  To reduce TTD to only 50% of wages would work immediate hardship on any injured employee and especially on those with dependents, and would probably lead many to return to work before it is medically indicated.

 

 

Require physicians to be “authorized by the Postmaster General” in order to provide services to any injured employee (except in emergencies)

WILG Comments: Requiring the approval of the Postmaster General would reduce even further the number of doctors willing to treat an injured Postal worker – making treatment harder to obtain and delaying treatment, resulting in more permanent and long term disabilities and adding an adversarial component to federal workers’ comp. Claimants are already unable to find medical care because most doctors will not touch a federal workers compensation claim due to delays in payment and what doctors perceive as excessive requests for paperwork.  Providers are already required to enroll with ACS (OWCP’s automated bill-pay service). One need only do a search of enrolled providers in any given area to see just how few doctors will take a FECA case already.  OWCP already has the authority to oversee medical billing and approves or denies services regularly. Further, OWCP determines whether a claimant needs continuing medical care. The Second Opinion process and independent medical (“referee”) examination processes are already in place to check treating physicians’ treatment plans. There are already significant delays in approving necessary surgeries and treatments. which result in more permanent, long-term damage. Adding another approval element would simply result in more unnecessary delays.  Allowing the employer (USPS) to be the “fox in the henhouse” for authorizing medical care is a horrible idea anyway – this is a traditional function of OWCP and not the employer.

 

 

Requires the SSA to provide informa-tion on injured employees’ SS benefits to USPS

WILG Comment: Claimants are already required to sign a release of SSA info to OWCP, so it’s unclear why the same information should also be sent to the Postal Service when USPS has access to the OWCP file already.

 

 

Limits payments to 104 weeks total for partial and/or total disability, unless per regulation DOL credits a treating physician that an extension is neces-sary or the disabil-ity is permanent. 

WILG Comment: While the right to payments continues until disability has resolved, OWCP already requires constant certifications from the treating physician that the disability continues. OWCP also schedules periodic exams with second opinion examiners to determine if disability continues and routinely overrules treating physicians in that regard.  The determination of whether a disability is “permanent” is (and must necessarily be) done on a case-by-case basis and is always subject to review by OWCP, so cutting off benefits willy-nilly at 104 weeks would be cruel and unjustified in any serious injury/disability case.  This would be especially true if treating physicians all have to be “approved” by the Postal Service, thus leaving this crucial decision up to the employer.

 

No further action was taken on this bill, and it has not been re-introduced in the current Congress.   

 S. 1789

 This bill was introduced in the Senate on November 1, 2011 by Senators Lieberman, Collins, Carper, and Brown as the “21st Century Postal Service Act of 2011”.  It had a Section III regarding FECA reform that included many provisions of FIERA which WILG opposed (see below).   The bill was marked up and passed out of committee on 11/09/11, and was passed by the full Senate on 04/25/12. The House never voted on it.  It has not yet been re-introduced in the current Congress.    

 

S. 1789 provisions

Summary

WILG comments

§302 – Conversion of entitlement at SSA retirement age

Would reduce the comp rate to 50% of wages for employees on total disability (and to 50% of wage-earning capacity loss for employees receiving partial disability) who have reached SSA retirement age. Would not apply to employees who have already reached retirement age before enactment. Provides a transition period of three years after the law goes into effect during which time employees who reach retirement age will receive basic compensation. Does not apply to employees who have an “exempt disability” medical condition, which is an injury that (1) requires attendant care, (2) fits the §8105 definition for permanent disability (loss of both arms, both eyes, etc.), or (3) was on total disability under FECA for the 3-year period before enactment, or for a 3-year period ending within 3 years after enactment.

OPPOSE – Reduces by up to 1/3 (from 75% or 66-2/3% of wage loss to 50% of wage loss) the compensation for employees who have reached retirement age. Given that people (including members of the House and Senate and their staffs) are working well past the traditional retirement age, this is unfair.   Unclear whether a disabled employee would be considered “exempt” from this reduction if (A) his/her benefit is reduced from total to partial during either of the 3-year periods; (B)  benefits were reduced or terminated, that action is then challenged, and total disability benefits are later reinstated.  Also reduces benefits for employees who suffer a recurrence of a disability, or who become disabled after enactment from a latent condition that stems from a (much) earlier exposure. And see page 3 for better proposal. 

§303 – Augmented Compensation for Dependents

Would eliminate the increase in compensation for injured employees with dependents. Would not apply to those with exempt disabilities and would not take effect for 3 years after enactment.

OPPOSE – While the desire for uniformity is understood, there is no reason to simply pick the lesser amount and make that the standard, especially given the economic hardship this would cause. And see page 3 for better proposal.

§304 – Schedule Awards

Would set new “annual salary” based on an amount calculated by taking the aggregate amount of money awarded and averaging that amount across the number of awardees.  New pay rate would only apply to injuries after enactment. Awards for pre-enactment injuries would be based on actual pay rate; but all awards would be paid at 2/3 rate and none would be paid at 75% rate. Would allow simultaneous receipt of a lump sum for schedule award  in addition to wage loss 

compensation payments for some employees – on the later date of either when the employee’s compensation has been reduced to 50% (after reaching retirement age),  or when  his or her entitlement to augmented (75% of wages) compensation was terminated.

OPPOSE – New “annual salary” would result in lower awards for some and higher for others and is no longer defined as the employee’s actual pay rate for post-enactment injuries. New pay rate would dramatically lower awards for top earners such as law enforcement, firefighters and others who receive LEAP pay.  All awards would be lower for both pre-and post-enactment injuries to employees with dependents.  A good part is that it allows for simultaneous receipt of a SA along with wage-loss comp – but only for some employees. Not clear whether the employee could elect to not receive the SA as a lump sum since it only refers to a lump sum. And see page 3 for better proposal.

§305 – Vocational Rehab

Allows voc rehab to start immediately.  Would exempt employees who have reached retirement age from participating in voc rehab. Encourages assisted reemployment with the federal government. Noncompliance will result in mandatory benefit reduction.

OPPOSE – Current law already allows benefit forfeiture for non-cooperation with voc rehab.   Mandatory benefit reduction would result in unfair decisions where OWCP-hired voc rehab counselor just alleges non-compliance.  No opposition to part exempting retirees from voc rehab. 

§307 – Disability Management Review / IME

Establishes mandatory second opinion exams six months after comp begins. Requires subsequent second opinions exams every 3 years.

OPPOSE – Why do this when OWCP already reviews medical  reports from treating physicians? OWCP already requires medicals on a more frequent basis than once every 3 years. No reason to make this mandatory. No other area of law discounts treating physicians’ opinions like this program does, and this would make that worse.  At minimum, the poor quality and bias of second opinion examiners should be addressed before this is implemented.

§308 – Waiting Period

3 day waiting period before eligibility for COP.

OK

§309 – Election of Benefits

Switching between FERS and FECA still revocable, but not for a period during which the employee was entitled to both FECA and FERS, or was paid FERS even though entitled to FECA. Does not prohibit switching back.

OPPOSE – Employees need to be able to switch to FERS while eligible for unreduced FECA to get SA for those who have not reached retirement age.  OWCP can still terminate benefits even if someone is receiving FERS money.

§310 – Field nurses

Imposes sanctions for noncooperation with field nurses.

OPPOSE – Absolutely do not need another person with the authority to effectively terminate benefits. Would need to issue rules for what a nurse is allowed to do in terms of interacting with doctors to avoid interference with doctor/patient relationship.

§311 – Subrogation

Adds amount of continuation of pay (COP) to the amount which can be subrogated

OK

§312 – Social Security Earnings Information

Allows OWCP to get information from SSA

OK

§313 – Amount of Compensation

Increases funeral expenses from $800 to $6,000. Increases the amount for injuries to the face, head and neck from $3500 to $50,000.

OK

BETTER PROPOSAL RE §§302, 303, 304 – Make any changes to these benefits applicable only to injuries occurring after enactment.  This is easier to understand and administer, and allows employees to purchase supplemental insurance to cover the loss in future benefits. 

Government Accountability Office (GAO) report

 

On 12/07/12 GAO issued a report entitled “Federal Employees Compensation Act: Effects of Proposed Changes on Partial Disability Beneficiaries Depend on Employment After Injury”, Number GAO-13-143R.  This report was requested so the members of Congress could assess the effects GAO anticipated from two proposed reforms: (1) reducing the total disability rate to 66-2/3, and (2) changing FECA benefits for permanently partially disabled employees, particularly those at retirement age.  Its conclusions were: (1) reduction of the total disability rate to 2/3 (or to 70% for all injured workers, covered by an earlier report) would reduce the median wage replacement rate accomplished by FECA, especially for those injured at a younger age, and would also reduce the relative equality in current benefit rates for employees with and without dependents, and (2) beneficiaries with constructed (as opposed to actual) earnings after onset of disability had substantially lower total income (FECA benefits plus any earnings) than those who were re-employed post-injury, and lower-wage beneficiaries would suffer greater reductions in FECA benefits than higher-wage beneficiaries.

 WILG  continues to monitor legislative proposals affecting FECA. 

 2.         Practice notes

 A.     Delays at the Office of Personnel Management (OPM)

 We are seeing quite a few cases where delays at OPM are substantially delaying receipt of FECA benefits. This often happens when a FECA claim is denied, the employee challenges the denial and in the meantime applies for and is granted OPM disability retirement benefits.  When the FECA claim is later won and retroactive benefits are claimed, OWCP refuses to pay the back pay until it receives official notice from OPM of the exact amount of retirement benefits paid during the retroactive period.  The OPM and OWCP benefits are coordinated, so there is a reason for OWCP to obtain this information before paying large retroactive amounts of wage loss benefits.   But the delays are now becoming more and more excessive.  OPM has a tremendous backlog of work processing disability retirement applications, and does not prioritize such information requests from OWCP – even though the OWCP benefits once paid do not include any interest for the injured worker. 

 B.     Trends in decisions from the Employees’ Compensation Appeals Board (ECAB)

 As of February 2011, the Board has a new Chairman and Chief Judge, Richard J. Daschbach, who by all accounts is actively attempting to ensure that the Board issue fair decisions on FECA appeals.  In particular, the Board now appears to be very focused on “process” – that is, ensuring that the OWCP district offices follow the OWCP Procedure Manual and any Bulletins or Circulars issued by the OWCP national office. While arguments regarding process have often been favorably entertained by ECAB  in the past, recent decisions regarding the United States Postal Service’s  (USPS) National Reassessment Process (NRP), and several decisions with regard to the selection of “referee” examiners or independent medical examiners (IMEs), have now made it clear that the ECAB will not tolerate any deviation from established procedures.  

 i.                     NRP cases

 The NRP was a controversial program instituted by the USPS that effectively laid off thousands of limited duty (industrially-injured) employees finding that the positions they occupied were not operationally necessary. The NRP is currently being challenged in multiple class action suits, including McConnell v. USPS, EEOC Case No. 520-2008-00053X.  One of the effects of the NRP was that thousands of employees who had work related injuries and who were working limited duty positions, sometimes for decades, suddenly found themselves sent home with “no work available”.   OWCP issued a bulletin (FECA Bulletin 09-05) on 08/18/09 which established specific procedures for claims examiners (CEs) to follow in determining whether employees fired from their limited duty jobs would be entitled to wage loss compensation. Previous decisions from ECAB had established that an employee who had not had a formal wage earning capacity determination (LWEC) made in his or her claim, under 5 USC  §8115, would likely be entitled to compensation as a result of their limited duty position being withdrawn. Those who did have formal LWECs in place, however, would have to prove that the LWEC was established in error or that their medical condition had become materially worse.  The primary argument advanced in many NRP appeals heard by the Board was that the initial LWEC decision was issued in error due to the claim that the light duty position was a “makeshift” or “odd-lot” position, consisting of make-work tasks banded together for the injured worker,  of the type not found in the general workforce and therefore did not accurately represent the injured worker’s wage earning capacity.

 Rather than rule on the merits in many of these appeals, the Board began issuing decisions, such as that in H.N. and USPS, ECAB Docket No. 11-155  (September 24, 2012), finding that the district offices had not followed the proper procedure for determining if an employee was entitled to wage loss compensation. Specifically, FECA Bulletin No. 09-05 requires the responsible claims examiner to inquire with the USPS as to whether the employee was occupying a makeshift or odd lot position.  In some cases that our office has been involved with, the employer has responded that the position was makeshift or odd lot, which has led to our client’s LWEC being overturned.  In other cases, however, the employer has stated the positions were not makeshift, and compensation has been denied. This will ultimately lead to nearly the exact same appeal being filed with the ECAB in cases where the employer has stated the job was not makeshift or odd lot.  The result being a sometimes year long delay before the substance of the injured worker’s appeal is heard by the Board.

 ii.                   IME selection cases

 The second area in which of the Board’s focus on process is apparent is selection of independent medical examiners.  Under 5 U.S.C. §8123, “If there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination.”  The third physician is appointed to resolve the conflict between the claimant’s treating physician and OWCP’s second opinion examiner. The opinion of the referee physician is entitled to special weight, and generally will determine the outcome of the claim. Thus, it is essential that the referee physician is in fact a neutral physician. Claimant advocates have long complained that OWCP has utilized the same referee physicians over and over, essentially calling into question the neutrality of the referees selected.  For years, ECAB essentially took OWCP’s word for it that referee physicians were selected according to a strict rotational basis based on a claimant’s zip code.

 Recently, and with some strongly worded decisions in 2012 (see M.M. and U.S. Postal Service, ECAB Docket No. 12-442 (August 28, 2012), L.E. and Dept. of Defense, ECAB Docket No. 12-1113 (November 13, 2012), and P.B. and SSA, ECAB Docket No. 12-1393 (December 18, 2012), the Board has required OWCP to provide proof that its referee was selected fairly ,in the form of documentation to prove this including an explanation of why physicians who were located closer to the claimant were not utilized.

 As a result of the Board’s crackdown on the referee selection process, OWCP has now begun including lists of bypassed physicians in claimant’s files. OWCP, however, is now utilizing its own iFECS software program to select from a list of physicians – as opposed to physician lists available to the public – and it is not clear how it is populating this list.  Regardless, it is a positive step that the Board is requiring strict adherence to the procedure for selecting a neutral third party physician.

 

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House committee holds hearing on federal workers’ compensation reform

Steven Brown Office Smile (1)Changes have been proposed to the Federal Employees’ Compensation Act and it is essential that injured federal workers and federal workers’ compensation attorneys are aware of how such changes will affect injured federal workers and the processing of FECA claims . In the last Congress, the full House passed a bipartisan bill to update the Federal Employees’ Compensation Act (FECA), but the bill was never taken up by the Senate.  The bill, HR 2465, came out of the House Education & the Workforce Committee and proposed the following changes to the statute (5 U.S.C. §§8101 et seq.):

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District of Columbia employees

Amends §8101 to exclude D.C employees, who have their own WC law effective 03/03/79.

 

 

Physicians’ Assistants and Nurse Practitioners

Amends §§8101(3), 8103(b), and 8121(6) to provide that the services of Physicians’ Assistants or Nurse Practitioners are covered medical services and allow them to certify disability for periods of COP in traumatic injury cases only.

 

 

Injuries outside of U. S.

Amends §8102(b) to strike outdated language, and to include injuries from terrorist attacks.

 

 

Schedule Award Disfigurement

Amends §8107(c)(21) – maximum of $3,500 increased to $50,000 for disfigurement of the head, face or neck, effective for injuries starting 3 years prior to date of enactment. Adds language adjusting this amount yearly using the existing FECA cost of living adjustment in 5 U.S.C. §8146a.

 

 

Social Security Provisions

Amends §8116 by adding section (e) to allow USDOL to require claimants to consent to release of SSA earnings records to OWCP as a condition of receiving FECA benefits.

 

 

Continuation of Pay / Zone of Armed Conflict

Amends §8118 to expand continuation of pay from 45 days to up to 135 days to ease benefit delivery for employees injured in a zone of armed conflict – applies to both traumatic and occupational injuries. Also increases time to claim COP from 30 to 45 days for these employees.

 

 

Subrogation-Continuation of Pay (COP)

Amends §§8131 and 8132 to allow COP cost to be recouped from Claimant’s recovery from liable third party by DOL, credited to

employing agency that paid it.   Eliminates double recovery of wares.

 

 

 

 

Burial Expenses

Amends §8134 – Increases maximum benefit from $800 to $6,000 for burial expenses (applies to death claims after enactment) and adds language adjusting this amount yearly using the existing FECA cost of living adjustment in 5 U.S.C. §8146a.

 

 

Employees’ Compensation Fund – claim administrative expenses

Amends §8147 to allow for payment of administrative expenses from the fund to require agencies to pay their share of costs associated in administering the statute.

On Wednesday July 10, 2013 the Subcommittee on Workforce Protections of the Education & the Workforce Committee – the same House Committee that passed HR 2465 – held a hearing on possible FECA reform in which these same ideas and others were discussed, as was the possibility of re-introducing HR 2465 in this Congress. Many of the proposed changes listed above are long overdue.

At the hearing, other USDOL-backed changes first proposed in 2011 were also discussed.  These other changes, however, are far more controversial, leading lawmakers in 2012 to ask the Government Accountability Office (GAO) for its opinion about them.  These changes included reducing benefits from 3/4 or 2/3 of salary to 1/2 of salary when the employee reaches full Social Security retirement age, computing schedule award benefits for all employees on a single pay rate, eliminating “augmented” compensation (3/4 rate) for employees with dependents and paying all disability benefits at a 70% rate, etc. In three reports (GAO-13-108, GAO-13-142R, and GAO-13-143R) issued in late 2012, GAO cautioned that such changes in the law would substantially and disproportionately disadvantage certain employees and save little in overall program costs.

As of this writing, no new legislation concerning FECA reform has been introduced.

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Dan Goodkin Speaks at OWCP Litigation Group Conference

Contribution, not cause, is key in FECA casesIn May 2013, a group of federal disability attorneys belonging to the OWCP Litigation Group met in Washington, D.C. for a two day seminar on federal workers compensation. Dan Goodkin of the firm Steven E. Brown, PLC presented on two topics, Strategies for  Emotional or Stress Claims in the Federal Workplace and a second lecture on Interactions Between FECA Claims and EEO Complaints/ MSPB Appeals. The conference was attended by many of the most well known and respected federal disability lawyers in the country and included a discussion panel with the Chief Judge of the Employees’ Compensation Appeals Board.

Emotional claims, often referred to as stress claims, under the federal employees’ compensation act can often be very complicated and difficult cases to win. Many federal disability attorneys avoid stress claims or claims for an emotional condition as they tend to be contentious, difficult claims to win. Federal  agencies are likely to challenge any claim that alleges wrongdoing on the part of the agency or its employees. As anyone who has searched for an attorney who handles FECA claims knows, there are very few federal disability lawyers  and even fewer who will represent claimants in stress claims.

Many things that occur in the federal workplace are not covered under FECA. For example, administrative actions, such as disciplinary actions, monitoring employee behavior and bad performance appraisals are not covered under FECA unless the claimant can prove error or abuse on the part of the agency. This is difficult as the burden is on the claimant to prove that the action was erroneous or abusive by providing evidence that consists of more than the claimant’s allegation. Typically, OWCP will look to see if another administrative body, such as the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board has entered a finding of discrimination or has overturned the disciplinary action, or if the administrative action was found to have violated a collective bargaining agreement as the result of a union grievance. Absent an administrative finding of wrongdoing, many stress or emotional claims fail if the basis of the claim was an administrative activity.

An outline of activities in the workplace that are covered under FECA, and those that are not, is included below for download.

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Dan Goodkin Presents at LRP Federal Workplace Conference in Washington, D.C..

Dan Goodkin

Dan Goodkin

On April 2, 2013, federal disability attorney Dan Goodkin was part of a panel including Employees’  Compensation Appeals Board (ECAB) Chief Judge Richard J. Daschbach and fellow Dan Shapiro.  The presentation took place at the LRP Federal Workplace Conference and Expo in Washington, D.C. at the Gaylord National Hotel. Mr. Goodkin organized the presentation which included a summary of significant ECAB decisions  from 2012 and a discussion of how those decisions impact injured federal employees and consequently any federal disability lawyer that represents an injured federal worker under the Federal Employees’ Compensation Act (FECA). Chief Judge Daschbach commented on various cases and offered his insight into the Board’s approach and philosophy regarding injured federal workers and the processing of FECA claims.

Topics covered included:

  • Timeliness issues in FECA claims including a discussion of a claim that was not filed for almost sixty years from the date of last exposure (D.C. and Department of the Navy, ECAB Docket No. 11-778 (2012);
  • Several claims clarifying when an injury to a federal worker is considered within the performance of duty;
  • Agency liability for disclosing personal information or issuing an order to an employee that is against policy, law or regulation;
  • Injuries to which there was no witness or no explanation as to what caused the injury;
  • A discussion of the lack of apportionment under FECA – including stress claims filed by federal employees;
  • Post-acceptance video surveillance of injured federal workers;
  • Factors that must be considered when issuing a Rehabilitation or light duty job offers to an injured federal worker;
  • The proper procedure for selection of referee examiners by the Office of Workers’ Compensation Programs (OWCP).

Mr. Goodkin is scheduled to present next at the OWCP Litigation Group conference in May, also in Washington, D.C., on the topic of coordinating benefits and electing remedies in cases involving MSPB, EEOC, FECA and FERS/CSRS issues.

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