FECA LEGISLATIVE 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.
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.
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.
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.
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
§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.
§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
§312 – Social Security Earnings Information
Allows OWCP to get information from SSA
§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.
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