you too can handle feca claims: the basics

You Too Can Handle FECA Claims: The Basics

Daniel M. Goodkin – Steven E. Brown, PLC

STEVEN E. BROWN A PROFESSIONAL LAW CORPORATION

Daniel M. Goodkin Esq.

What is the FECA?

Simply put, it’s the workers comp system for employees of the US Government (excludes active duty military). Unlike state workers’ compensation, there is no apportionment. It is supposed to be a non-adversarial system, but anyone who has filed a claim knows that is not true.



Why get involved with FECA?

According to the Office of Personnel Management, there are 64,000 federal employees in the judicial branch and 2,776,000 employees in the executive branch

for a total of 2,840,000 federal employees. This does not include uniformed military personnel.

The US Department of Labor, which oversees the Federal Employees’

Compensation Act (FECA) reported that In FY 2010, 127,526 new cases were created. The program provided $2.86 billion in benefits to approximately 251,000

workers and survivors for work-related injuries or illnesses. Of these benefit payments, over $1.8 billion was for wage-loss compensation, $913 million for

medical and rehabilitation services, and $138 million for death benefit payments to surviving dependents.

Simply put, there are a lot of federal employees and they need help!



Who is covered by FECA?

• Employees of all federal agencies in all three branches of government, and the Postal Service, including temporary and probationary employees, but not employees of contractors or of entities covered by other federal workers’ compensation laws such as the Longshore & Harbor Workers Compensation Act, The Defense Base Act, the Outer Continental Shelf Lands Act, and the War Risk Hazards Act. There is also coverage for volunteers, certain non-federal law enforcement officers, etc.



Monetary Benefits • Lost wages – Currently pays 75% to an injured worker with dependents (spouse, children under 18 or 23 if they are in college) who loses the capacity to work due to his or her work related medical condition. The rate is 66 2/3% without dependents. See 5 USC §8105 and §8110(a). • Schedule Award – This is as close to a settlement as there is in FECA claims. It is a onetime cash payment for permanent impairment. It is limited to specific body parts – primarily the extremities. Not on the list is the spine, brain or heart. See 20 CFR §10.404 for a complete list and 5 USC §8107(c)(22). Legs 288 weeks, arms 312 weeks, etc. • Survivor Benefits – Payment to the surviving spouse or dependent children whose spouse or parent has died sooner than they otherwise would have without the work related injury. The death does not need to be “caused” by the work injury, a claimant just has to show that the injury hastened death or made the event which caused death more likely. see 5 USC §8133.



Non-Monetary Benefits

• Medical Treatment - All medical treatment for accepted medical conditions are paid 100% by OWCP. No co-pays.

• Vocational Rehabilitation Services – This is rarely a benefit to claimants. The way this system is used is to give the injured worker some nominal training, find that they can work in some capacity, and use that determination to reduce benefits. The training rarely lasts more than 90 days.



How does one file a claim?

• Claims are filed using standard forms and are submitted directly through the injured worker’s employing agency. The forms are preferred - however, in a pinch, any words of claim stating that the injured worker believes he or she has developed a medical condition as the result of a work accident or conditions of employment is sufficient.

STEVEN E. BROWN

A PROFESSIONAL LAW CORPORATION Daniel M. Goodkin Esq.

Types of Claims

• Traumatic Injury – CA-1

• Occupational Disease – CA-2

• Recurrence – CA-2a

• Death benefit – CA-5



CA-1 Notice of Traumatic Injury

• This is a claim for a medical condition that the claimant believes resulted from exposure to work factors over one work shift. For example, a federal firefighter who gets burned fighting a forest fire.

• Should be filed immediately after the injury occurs. Eligible for 45 days of Continuation of Pay (COP) – 45 days of pay given by the agency without charging sick or annual leave if submitted within 30 days of the injury. Medical documentation must be provided within 10 days.

• Agency should provide medical care authorization (CA-16) until claim is adjudicated.

• Can be filed up to 3 years afterwards (no time limit if the employer was made aware of the injury and causal connection within 30 days).

• Consider third party responsibility.



CA-2 – Notice of Occupational Disease

• This is a claim for a medical condition that the claimant believes resulted from exposure to work factors over more than one work shift. For example, an air traffic controller who develops a stress related emotional condition as a result of working under pressure for several years.

• Can be filed up to 3 years afterwards

• When it doubt if other work events contributed, or even if you suspect they might have, file a CA-2.

• Consider third party responsibility – example asbestosis

• No COP available. Employee uses own insurance until claim is adjudicated.



CA-2a – Notice of Recurrence

• This is a rather complicated claim and one that we tend to avoid for a variety of reasons. It is a claim that additional medical treatment is necessary after release from treatment for the work-related injury or that a work stoppage was caused by a spontaneous return of the symptoms of a previous injury or occupational disease without intervening cause. It is very difficult to prove there is no intervening cause and typically, if the employee has gone back to work, there will be new work factors to implicate.



CA -5 – Claim for Compensation by Widow, Widower and/or Children

• This includes not only when the employee died as a result of a work injury (such as a federal law enforcement officer killed in the line of duty) but also includes situations where an injury or occupational disease contributed in any way to the employee’s death. “To hasten death is to cause it, as far as the right to compensation is concerned.” Ann L. Oakes, 32 ECAB 39 (1980).

• Even suicide can be covered if the primary reason for the suicide was due to the physical or psychological condition.



What are the elements that must be proven in every FECA claim?

• (1) status as a federal employee covered by the Act; (2) fact of injury (including toxic exposures, repetitive motion activities, etc.); (3) injury occurring in the performance of duty (AOE/COE); (4) fact of medical condition (diagnosis, etc.); (5) causal relationship between the injury and the medical condition, such that the injury caused or contributed to the condition or aggravated a pre-existing medical condition.



What evidence is necessary to support a FECA claim?

• a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition

• medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed

• medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the employee.



Pitfalls!

• Forms are generally insufficient

• Must be an MD. No PAs, NPs, etc. Limited exception for chiropractors – spinal subluxation only.

• Equivocal language in reports

• Avoid the blame game



What happens next?

• Development letter – The most common response to a claim submission is for OWCP to ask for more information

• Referral for a second opinion

• Acceptance of the medical condition

• Denial



If the claim is accepted

• Make sure the right condition is accepted • Notify medical providers of the accepted

condition • Submit past medical bills for reimbursement • File a CA-7 for any wage loss • When the condition has reached maximum

medical improvement, file a CA-7 for a schedule award

• Regular medical reports must be submitted.



Some negatives about FECA

• No right to judicial review, except in rare instances of constitutional rights violations. 5 U.S.C. §8128(b); Duncan v. Department of Labor, 49 Fed. Appx. 653 (8th Cir. 2002); Rodrigues v. Donovan, 769 F.2d 1344 (9th Cir. 1985); Czerkies v. USDOL, 73 F.3d 1435, 1439 (7th Cir. 1996).

• Inconsistent application of the law and interpretation of the facts by OWCP.

• Constant review by OWCP employees who try to terminate benefits.

• Excessive OWCP delays in taking actions and making decisions, with no penalty (such as interest added to benefits or payment of attorney fees) against the government for same.

• Difficulty communicating with and obtaining information from OWCP.



Some positives about FECA claims

• No cap on benefits. No time limit on benefits.

• No fault

• No apportionment. Any contribution – no matter how slight – by the employment to the production of the injury or disease is sufficient to make the entire disability compensable, without apportionment. Beth P. Chaput, 37 ECAB 158 (1985). This means if you allege 30 things, and one is proven, and medical evidence shows it contributed, the whole condition is accepted as work-related.

• The injured worker is afforded nearly infinite “bites at the apple.” After each denial on the merits, a claimant can submit additional evidence and request that OWCP reconsider its decision, with no limit on the number of such requests that can be filed. See 20 C.F.R §10.600.

• Emotional conditions caused by the stress of the work duties themselves, including where the employee is trying to meet the regular or specially assigned duties of his/her position, are fully compensable. See, e.g., Robert J. Benetti and Department of Transportation, Federal Aviation Agency, 106 LRP 42673 (ECAB 2006).



http://www.cyberfeds.com/CF3/servlet/GetCase?cite=106+LRP+42673

Examples

• Postal worker calls and says his shoulder hurts after 20 years of delivering mail.

• Air traffic controller calls after being involved in a near miss.

• Former secret service agent calls because his back has gotten worse since he retired.

• TSA employee calls after hurting his back lifting luggage. • Widow of a federal law enforcement officer calls after her husband

dies after suffering a heart attack while chasing a suspect.



Daniel M. Goodkin

Steven E. Brown, A Professional Law Corporation

910 Hampshire Road, Suite G

Westlake Village, California 91361-2888

805-496-9777 voice; 805-496-6368 fax

Email - [email protected]



FEDERAL LEGISLATIVE UPDATE - FECA REFORM

By: Steven E. Brown, Attorney at Law

October 21, 2011

This is a summary of recent activity in Congress and at the U. S. Department of Labor regarding

changes and proposed changes to the Federal Employees‟ Compensation Act (FECA).

1. Regulatory changes proposed in 2010

On August 13, 2010, the U. Department of Labor‟s Office of Workers‟ Compensation Programs

(OWCP) issued proposed regulations encompassing many changes to the regulations governing

FECA. These were found at http://edocket.access.gpo.gov/2010/pdf/2010-18965.pdf. See item 8

below for current status of these regulatory changes.

The main changes involved expanding the list of scheduled members to include the skin (a pro-

employee change), a new requirement that reconsideration requests must be received (not just

mailed) within one year of an adverse decision, and incorporation of the ECAB‟s decision in

K.R. (discussed in footnote below) regarding recurrences of disability. 1

Anti-employee proposed changes:

Layoffs, recurrences and Loss of Wage Earning Capacity (LWEC) determinations

OWCP clarified 20 C.F.R. §§10.509 and 10.510 to provide that losing one‟s job as a result of

downsizing of any sort (whether or not a formal Reduction in Force - RIF) does not constitute a

compensable recurrence of disability, AND that when an employee loses his/her job due to such

downsizing an LWEC should be established based on the last position the employee was

performing before the downsizing, subject to the requirements of §10.510. Since the Postal

Service steadfastly maintained that its massive National Reassessment Process (NRP) was not a

1 In early 2010, ECAB overturned its prior decision in K.R. and USPS, Docket No. 09-415 (Sept 30, 2009),

with its decision in K.R. and USPS, Docket No. 09-415 (February 4, 2010). The Board in the latter decision

ruled that a claimant‟s limited-duty position being withdrawn does not constitute a recurrence of disability

under FECA, and therefore the injured worker is not automatically entitled to wage loss compensation if

that injured worker already had a loss of wage earning capacity (LWEC) determination in place. This

reverses the earlier K.R. decision and is in opposition to other aspects of federal employment law, under

which an injured federal worker is entitled to “restoration to duty” within certain limitations after an

industrial injury, and the later withdrawal of a limited-duty position is included in the definition of “failure

to restore” the employee to duty - which is an appealable employment action. See 5 U.S.C. §8151; 5 C.F.R.

§353.301; Merit Systems Protection Board (MSPB) cases such as Brehmer v. USPS, 106 MSPR 463

(2007); Barachina v. USPS, 2009 MSPB 227, 113 MSPR 12 (issued 12/14/09); Chen v. USPS, 2010

MSPB 129 (issued 07/08/10); Marquez v. USPS, 2010 MSPB 144 (issued 07/16/10); Kinglee v. USPS, 110

LRP 43007 (issued 07/23/10). MSPB recently issued a public request for amicus curiae briefs to be filed

on this issue in Latham v. USPS,, Docket No. DA-0353-10-0408-I-1 and related cases (pending), and the

undersigned filed such a brief on 08/24/11. Joining in the brief were several other federal employee rights

attorneys and WILG; OPM later filed an amicus curiae brief agreeing with our position. The February

2010 K.R. decision also conflicts with 20 C.F.R. 10.5(x): “… A recurrence also means an inability to work

that takes place when a light duty assignment made specifically to accommodate an employee‟s physical

limitations is … withdrawn.” An employee with an LWEC in place can still obtain FECA wage-loss

benefits if he can show that his condition has deteriorated, or that the original LWEC was in error

(including that the position that served as the basis of the LWEC determination was “odd-lot” or makeshift).

http://edocket.access.gpo.gov/2010/pdf/2010-18965.pdf

RIF 2 (as that would be contrary to the CBAs it has agreed to with Postal unions), and many of

these job offers are seen as make-shift or odd-lot “positions”, these changes seemed directly

aimed at Postal employees and at defeating their wage-loss claims after being affected by NRP.

§10.510 sets forth the requirements for a position to serve as the basis of an LWEC

determination. It states that the position must be a classified position to which the employee has

formally been reassigned, must conform to the established physical limitations of the injured

employee, must have a written position description outlining the duties and physical

requirements, and must correlate to the type of appointment held by the injured employee at the

time of injury. The Board‟s decision in A.J.3 (see footnote below) elaborates on and expands

these pro-employee requirements for purposes of setting LWECs.

The proposed changes to §10.509 and §10.510 seemed designed to allow a federal employer,

such as the Postal Service, to hire back injured workers in some capacity for a short period of

time, then “„downsize” the “position” that the injured worker returned to, and thereafter simply

ask OWCP to set the injured worker‟s permanent future LWEC based on the eliminated

“position”. The Postal Service had already been doing this as a way of avoiding paying workers‟

compensation benefits before these changes were proposed.

Contingency fees:

§10.702 and §10.703(b) – these sections state that contingency fees for attorneys are not allowed,

even if the client agrees with the fee amount. This follows up on FECA Circular 09-03 issued

06/01/09 stating informally that such fees are not allowed but which was based entirely on legal

precedents interpreting the pre-1999 regulations. This was an unnecessary attempt to further

limit the right of injured workers to obtain competent legal counsel. When the fee rules were

changed in 1999 it was on the basis that, as stated in the Federal Register at the time, “Section

10.702 implements a new procedure by which OWCP will automatically approve all fees unless

the represented party objects to the amount billed.” OWCP backtracked on that change, for no

good reason and based on its apparent desire to discourage or exclude attorneys from

representing FECA claimants.

No mailbox rule for reconsideration requests:

§10.607 - changes the deadline for filing reconsideration requests from the mailbox rule (i.e.

2 According to a letter not disclosed publicly until July 2011, USPS discontinued NRP in January 2011.

3 It is not all bad news for workers affected by the NRP. In A.J. and USPS, 61 ECAB ___, Docket No. 10-

619, 110 LRP 39850 (June 29, 2010), the ECAB seems to have lowered the bar as to what kind of position

will be considered “odd-lot” and therefore would be inappropriate to use in determining an employee‟s

LWEC. In A.J. the Board ruled that a claimant‟s position was makeshift because:

1. It was created specifically for the employee and tailored to her medical work restrictions,

2. The position did not allow her to perform the general duties of a clerk, although it was described as a

clerk position, and

3. There was no evidence that she would have been able to secure a position in the community at large that

required such limited duties.

The Board also found the position was temporary, and therefore could not be the basis of an LWEC because

there was no indication that the job offered was permanent; in fact, the employer had eliminated the position

because it could no longer accommodate the appellant‟s restrictions. This decision should make it easier for

Postal workers affected by the NRP to petition OWCP to overturn LWEC ratings based on light duty or

modified duty positions (but see the regulatory changes discussed herein).

deemed filed when placed into the mail stream) to "when received". This of course raises the

question: how would one know exactly when OWCP receives anything – especially since they

lose so many documents?

Other anti-employee proposed changes:

§10.18 - affirmative duty for beneficiary to report to OWCP any incarceration based on a felony

conviction that would result in forfeiture of beneficiary's right to compensation.

§10.617 - changes hearings to being generally limited to one hour.

§10.511 - codifies ECAB law which delineates the only circumstances under which loss of wage-

earning capacity can be modified, i.e.: only where the party seeking modification establishes that

there is a material change in the nature and extent of the injury-related condition, the employee

has been retrained or otherwise vocationally rehabilitated, or the original determination was

erroneous.

§10.517 - when employee refuses to seek or accept suitable work, termination of compensation

applies to prior injuries in which comp is payable as well as to the current claim.

§10.525 - employees must now report all employment activities including all outside

employment in determining disability, even when the employment is dissimilar to their current

job. Regarding this, §10.526 includes volunteer activities as well.

§10.618 - when changing a hearing request to a request for review of the written record, all

evidence and argument must be submitted with that request.

§10.703 - OWCP can only approve OWCP fees and ECAB can only approve ECAB fees. When

the fee is disputed, OWCP considers customary local charges for a representative with similar

qualifications in considering what is a reasonable fee.

Pro-employee proposed changes:

Addition of skin as a body part on the schedule:

§10.404 - Includes the skin as an organ - 205 weeks compensation for total loss. Covers people

suffering such losses on or after September 11, 2001. [Note – how would this be coordinated

with the special fund set up for 911 first responders?]

Electronic submission of documents:

§§ 10.1,10.101,10.102, 10.103 and 10.105 revised to allow electronic submission of notices and

claim forms by December 31, 2012.

Travel distance

§10.315 increases reasonable distance of travel up to a roundtrip distance of 100 miles for

reimbursement.

Attendance at medical exams:

§10.32 - can allow another person at medical examination where someone needs assistance

because s/he is hearing impaired or possibly needs an interpreter.

Miscellaneous:

§10.417 - reduces reporting requirements re dependency for adult children who are incapable of

self-support to once a year. Also adds option to change dependency to permanent.

§10.501 allows OWCP to require less medical documentation for continuing benefits where

circumstances merit such reduced documentation. Specifically for employees over 65 and with

serious conditions not likely to improve (but still usually not less than once every 3 years).

§10.609 - OWCP won't wait to give Agency chance to comment on recon when comments from

agency are not germane to the issue.

//

Neutral proposed changes:

§10.103 - OWCP can create a separate form for schedule awards.

§10.104 - clears up what a recurrence is and what is the basis for modifying a loss of wage

earning capacity determination.

§10.606 – reconsideration requests must be signed and dated.

§10.712 - better clarification re third party claims and crediting.

§10.801 - clarifies how medical billing works.

New rules for non-citizen and non-resident employees of U.S., any territory, or Canada, re FECA

coverage.

Public comment on these regulatory changes was invited through October 12, 2010. The author,

on behalf of WILG, 4 filed detailed objections to some of the proposed changes on behalf of the

WILG FECA Section. Unlike in prior years when proposed regulations were issued, OWCP

received many hundreds of comments from the public and from law firms and employee

organizations about the proposed changes to its FECA regulations. OWCP later adopted nearly

all of its proposed changes, however (see item 8, below).

2. S.B. 4000

“U. S. Postal Service Improvements Act of 2010” – introduced by Senator Collins in December

2010 (in the previous Congress), this bill dealt primarily with easing the Postal Service‟s

financial woes; but it also contained a section 5 proposing that injured federal employees be

transitioned from OWCP (workers‟ compensation) benefits to CSRS or FERS (federal civilian

retirement) benefits at retirement age. Retirement age was defined as the age when the employee

reached eligibility for Social Security retirement benefits under 42 U.S.C. §416(l)(1). As written,

it would also have made retirement-age employees ineligible for any FECA benefits in the event

of an industrial injury, in effect forcing them to immediately retire unless they simply did not file

a FECA claim. This bill died in committee.

3. S.B. 261

After the new Congress was seated in January, in February Senator Collins re-introduced the

FECA-related provisions of S.B. 4000 as a stand-alone bill entitled “Federal Workers‟

Compensation Reform Act of 2011”. The provisions are identical to the earlier bill. Senator

Collins also requested that the Government Accountability Office (GAO) study what provisions

existed in state workers‟ compensation laws relating to continued receipt of workers‟ comp

benefits after retirement age. This bill has not been acted on.

4. S.B. 353

Also in February 2011 Senator Collins re-introduced the FECA-related provisions of S.B. 4000

as part of another Postal Service financing bill entitled “U. S. Postal Service Improvements Act

of 2011, Title III” The provisions related to FECA are identical to those in the other bills, S.B.

4000 and S.B. 261. This bill also has not been acted on.

4 Workers Injury Law & Advocacy Group, the nation‟s only organization of attorneys dedicated to

representing workers‟ compensation claimants/applicants, with over 850 members and members in all 50

states. The author is Chair of the FECA Section of WILG. 5 Title III – “Federal Workers Compensation Reforms for Retirement Eligible Employees”

5. FIERA

At about the same time as S.B. 261 was introduced, on February 9, 2011 OWCP invited various

federal employee union officials to the Department of Labor‟s offices in Washington and made a

presentation outlining OWCP‟s FECA reform ideas, which it called the “Federal Injured

Employees‟ Reemployment Act of 2010”. This is a comprehensive set of changes which would

result in an overall decrease in workers‟ compensation benefits. When asked by one of the union

officials whether there would be an opportunity to discuss these proposals before they were

enacted, the OWCP officials said that would “not be necessary”. Later, however, several of

OWCP‟s proposals met with opposition from federal unions and some members of Congress at

hearings (see below). While no bill on FIERA has been introduced in either House of Congress

as of this writing, it was outlined and discussed in the three hearings on the Hill mentioned

below, and it is still circulating as the basis for various reform proposals. Also on July 8, 2011

the Government Accountability Office [GAO] was asked to conduct, and is conducting, a study

on how several of FIERA‟s key proposals would affect federal employees; the results of the

study are not expected for several more months.

SUMMARY OF OWCP‟S FIERA PROPOSAL PACKAGE

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 payable at 70% of wages for all employees instead of at the

current 66-2/3% or 75% of wages (for employees with dependents).

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.

MAIN CRITICISMS THAT HAVE BEEN VOICED ABOUT OWCP‟S FIERA PROPOSALS

Total disability benefits should not be reduced from 75% to 70% for employees with dependents,

as those employees have higher living expenses.

Schedule award benefits should not be calculated on the pay rate of a GS-11 step 3 employee

(currently $53,639.00 per year), as that would drastically reduce awards for higher-paid

employees, many of whom are law enforcement and other public safety officers.

Death benefits should not be reduced from current maximum of 75% of deceased employee‟s

wages for all dependents to a maximum of 70%, since some deceased employees have several

dependents and the number of such claims is relatively small.

Employees who have retired should not be required to permanently elect to receive either OWCP

benefits or retirement (CSRS or FERS) benefits, since some of them retired early on disability

retirement while their OWCP claim was not yet even decided, and they should not lose the much

higher OWCP benefit if and when it is granted.

6. Congressional hearings

On April 13, 2011 a hearing entitled “FECA: A Fair Approach” was held in the House

Committee on Oversight and Government Reform [“OGR”], Subcommittee on the Federal

Workforce, chaired by Darrell Issa (R-CA). Witnesses were:

Gary Steinberg, Acting Director, Office of Workers‟ Compensation Programs, USDOL

Bill Siemer, Assistant Inspector General for Investigations, U. S. Postal Service

Lisa McManus, President, CCS Holdings, L.P.

Milagro Rodriguez, Occupational Health and Safety Specialist, American Federation of

Government Employees AFL-CIO

At this hearing Mr. Steinberg outlined FIERA in detail. Mr. Siemer complained about fraud in

the FECA system allegedly being perpetrated by Postal workers. Ms. McManus, whose firm is a

private workers‟ comp claims administration service, argued for privatization of the FECA

system. Ms. Rodriguez argued against any reduction in employee benefits under FECA.

On May 12, 2011 a hearing entitled “Reviewing Workers’ Compensation for Federal Employees”

was held in the House Education and Workforce Committee, Subcommittee on Workforce

Protections, chaired by Tim Walberg (R-MI). Witnesses were:

Daniel Bertoni, U. S. Government Accountability Office

Susan Carney, Human Resources Director, American Postal Workers Union AFL-CIO

Elliot P. Lewis, Assistant Inspector General, U. S. Department of Labor


Scott Szymendera, Congressional Research Service.

At this hearing, Mr. Bertoni testified about a 1996 GAO report on FECA and how he felt it was

still relevant, based on secondary sources such as the Congressional Research Service, but not

based on any legal analysis; he concluded that any proposal to replace FECA benefits with

retirement benefits for older workers should be very carefully studied before being implemented.

Ms. Carney voiced objections to the provisions that reduced employee benefits and certain other

procedural changes, citing numerous reasons. Mr. Lewis made recommendations for changing

the 3-day waiting period, cautioned against forcing FECA claimants onto the retirement rolls,

favored allowing OWCP to gain SSA earnings information more easily, and favored bolstering

OWCP efforts in the area of vocational rehab and return to work. Mr. Steinberg again outlined

FIERA in detail, but curiously stopped short of advocating its adoption in legislation. Mr.

Szymendera reviewed the history of federal employee workers‟ compensation laws and the

various amendments to FECA since 1916.

Following these hearings in April and May, staffers for the Subcommittee on Workforce

Protections began working on a piece of legislation to be proposed after the July 4th holiday that

would reform FECA (see H.R. 2465, below).

On July 26, 2011 a hearing entitled “Examining the Federal Workers’ Compensation Program

for Injured Employees” was held in the Senate Subcommittee on Oversight of Government

Management, the Federal Workforce, and the District of Columbia. Witnesses were:

Christine Griffin, Deputy Director, U. S. Office of Personnel Management


Andrew Sherrill, Director, Education, Workforce, and Income Security, USGAO

Joseph Beaudoin, President, National Active and Retired Federal Employees Association

Ronald Watson, Consultant, National Association of Letter Carriers, AFL-CIO

Gregory Krohm, Executive Director, International Association of Industrial Accident

Boards and Commissions.

At this hearing, Ms. Griffin argued against transferring retirement-age FECA recipients to federal

employee pension benefits, and said she preferred OWCP‟s FIERA proposal to reduce FECA

benefits at retirement age instead. Mr. Steinberg again outlined FIERA in detail. Mr. Sherrill

discussed a previous related GAO report and reiterated its continued relevance. Mr. Beaudoin

generally opposed all benefit reductions to active and retired employees. Mr. Watson opposed

the reduction of benefits to 70% for all claimants and the mandatory switch to retirement for

injured FECA claimants as unfair to employees, Mr. Krohm provided rather murky personal

comments, not on behalf of IAIABC, comparing and commenting on some differences between

FECA and state workers‟ compensation laws.

7. H.R. 2465

The result of the bipartisan efforts of the House staffers involved with the May 12 hearing was

this bill, entitled “Federal Workers‟ Compensation Modernization and Improvement Act”, which

was introduced on July 8, 20111and was quickly reported out of committee on July 13, 2011.

HR 2465 FECA Amendments

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

admin. expenses

Amends §8147 to allow for payment of administrative expenses from the fund and

to require agencies to pay their share of costs associated in administering the

statute.

The WILG FECA Section has supported this bill, as have several federal employee unions. As

this bill contains only non-controversial revisions to FECA, it is widely viewed as not addressing

the financial concerns driving FECA reform.

8. Regulatory changes adopted

On June 28, 2011, while noting the many voices opposing several of the changes, OWCP

adopted its regulatory change proposals nearly intact. The changes were effective August 29,

2011, and can be found at http://frwebgate2.access.gpo.gov/cgi-

bin/PDFgate.cgi?WAISdocID=bvP8VL/32/2/0&WAISaction=retrieve. Notable was a change in

the first sentence of 20 CFR §10.510 from ““A light duty position may form the basis of a loss of

wage-earning capacity determination …” to “A light duty position that fairly and reasonably

represents an employee‟s ability to earn wages may form the basis of a loss of wage-earning

capacity determination …” [emphasis added[; this change makes that Section a bit more

palatable to claimants and is more in line with the Board‟s A.J. ruling.

9. H.R. 2309

This bill was introduced on June 23, 2011, sponsored by Darrell Issa (R-CA) and co-sponsored

by Dennis Ross (R-FL); it affects employees covered by FECA as part of a larger plan to

reorganize the Postal Service. Some effects of this bill would be:

A. creates a Commission on Postal Reorganization to oversee Postal operations,

with powers such as voiding existing Postal employee union contracts, recommending

closure of Postal facilities, etc.;

B. increases employee costs for health care coverage and life insurance at

expiration of the current union contracts, and eliminate the right to collectively bargain

over these benefits;

C. eliminates Saturday delivery.

On June 23, 2011 this bill was referred to the House Committee on Oversight and Government

Reform [“OGR”].

10. Ross Amendment to H.R. 2309

“Postal Service Workers‟ Compensation Reform” - This amendment to Cong. Issa‟s bill,

sponsored by Cong. Ross (R-FL) [“Issa-Ross Postal Reform Act”] and introduced on September

21, 2011, would create special workers‟ compensation rules and procedures, within FECA just

for Postal Service employees, including:

A. giving the Postal Service the right to determine which doctors can treat injured

workers (except for emergency treatment);

B. limiting payment of disability benefits to “a total of not to exceed 104 weeks per

incident” unless the [Postal Service approved] physician “finds that one or more

temporary extensions are necessary or that the disability is permanent”;

http://frwebgate2.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=bvP8VL/32/2/0&WAISaction=retrieve

http://frwebgate2.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=bvP8VL/32/2/0&WAISaction=retrieve

C. reducing disability benefits to 50% of wages for employees who have reached Social

Security retirement age [as in FIERA], after the employee receives current-level

benefits for 12 months;

D. would apply to current benefits for all injuries to Postal workers, past and present.

On September 21, 2011 the Federal Workforce, U. S. Postal Service, and Labor Policy

Subcommittee of OGR reported out this bill to the full committee. An October 5, 2011 hearing

before OGR on this bill was canceled due to an inter-committee jurisdictional dispute.

11. Final Amendment to H.R. 2309

News reports on October 13, 2011 stated that the Ross-Issa bill was reported out of committee in

a different form – namely the FECA reform provisions were changed to provide that all U. S.

Postal employees would be removed from FECA coverage to be placed into an as-yet-unnamed

new workers‟ compensation system. Exact language of this amendment is not yet available. It is

felt that this change would be extremely harmful to the rights of injured Postal employees.

12. S. 1625

On September 23, 2011 this bill was introduced by Senator McCain (R-AZ) as the “Postal

Reform Act of 2011”, co-sponsored by Senator Tom Coburn (R-OK); it mostly deals with Postal

reform issues, but it contains a section (Section 311) which provides as follows:

SEC. 311. SENSE OF CONGRESS.

“It is the sense of Congress that--

(1) the Postal Service should develop and manage a program to pay

compensation for the disability or death of an officer or employee of the

Postal Service which results from an injury sustained while in the

performance of duty;

(2) such program should include an automatic transition to retirement and

provide a retirement pension based on the average salary of the officer or

employee, determined as if such officer or employee had continued to receive

basic pay from the date of injury to the date of retirement; and

(3) officers or employees of the Postal Service receiving compensation for a

disability from an injury sustained while in the performance of duty should be

transitioned to the program described in paragraph (1).”

Thus this Senate bill appears to be a moderated version of Senator Collins‟s various bills that

would require “transition” from FECA benefits to retirement benefits for injured workers once

they reach retirement age, and would require the worker be credited with time-in-service for the

period between disability onset and retirement. This bill was read twice and on September 23,

2011 was referred to the Senate Committee on Homeland Security and Governmental Affairs.

Steven E. Brown, PLC

910 Hampshire Road, Suite G

Westlake Village, CA 91361-2888

Voice: 805-496-9777

Fax: 805-496-6368

Email: [email protected]

Web: www.federal-law.com

mailto:[email protected]

http://www.federal-law.com/

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