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Without Telling Anyone, USDOL Institutes an Unjustified Rule that Disadvantages Injured Workers Covered by The FECA Program

Daniel M. Goodkin Jan. 1, 2016

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.