J.N. and DHS

Following hearings in April and May 2011 held by two different Committees in the House of Representatives, staffers for one of the committees is reportedly working on a piece of legislation to be proposed after the July 4th holiday that would reform the system of workers’ compensation for federal employees (known ass “FECA”).

Earlier this year, OWCP unveiled its “FIERA” [Federal Injured Employees' Reemployment Act] proposal, which would effect many changes in the law including an overall decrease in workers’ compensation benefits. OWCP’s proposal, however, met with opposition from federal unions and some members of Congress at the hearings. At this point, there is an effort to create a bipartisan reform bill that reportedly will differ from OWCP’s proposal.

QUICK 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.
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 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.

Adds physicians’ assistants and nurse practitioners to the list of recognized medical providers.

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.

Imposes a new sanction (suspension of benefits) against employees who fail to cooperate with OWCP field nurses.

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

Allows reimbursement of claims administration expenses to be paid from the Employees’ Compensation Fund and requires federal agencies 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, as that would drastically reduce awards for higher-paid employees.

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.

CURRENT STATUS

Our office will continue to monitor any legislative proposals that are being discussed, and will be voicing our comments on how such changes might affect injured workers.

© 2011 by Steven E. Brown, A Professional Law Corporation – all rights reserved.

The more complicated question is what happens to your wage loss benefits. Most people are surprised to know that wage loss benefits are not automatically forfeit by a termination for cause or resignation.

The key factor in determining whether you will continue to receive or start to receive wage loss after resignation/termination is *why* you are no longer earning wages. If you can show, through competent medical evidence, that you were not capable of earning wages regardless of whether you had resigned or been terminated, you will retain your right to benefits.

What benefits you receive, if any, will depend on a variety of factors including whether you are working at the time of your resignation/termination, what type of employment you held at the time of termination (full time/part time/ modified duty), whether OWCP has established your loss of wage earning capacity, whether there is light duty available to you, whether the position you are working in has been found suitable by OWCP, etc..

Before making any decision with regard to whether to resign or whether to fight a proposed termination make sure to consult with an attorney knowledgeable in matters relating specifically to federal employees.

TERMINATIONS OR REDUCTION IN HOURS

• What if you have been away from work for a year and your agency terminates you for medical unavailability?

This is a very common scenario. A client will get a letter from the employing agency proposing to terminate him/her for being medically unavailable. The typical first reaction is panic that such removal will negatively impact receipt of OWCP benefits. Relax – it will not. In fact, a removal for medical reasons, assuming your medical condition is related to your work injury, is solid proof that you have lost wages due to your injury. It also shows that the agency does not have light duty available for you.

You should also be sure to look into applying for FERS or CSRS disability retirement as a removal for medical reasons will typically entitle you to a presumption of disability under FERS and CSRS.

• What if you are currently disabled and your agency removes you for cause?

If you are on leave without pay and collecting workers compensation due to a work-related medical condition that renders you disabled, and your agency decides to terminate you for cause (such as poor performance, insubordination, failure to provide medical updates, failure to follow leave procedures, etc.), you will continue to be entitled to wage-loss. The reason is that your medical condition is causing you to be unable to work, regardless of whether or not your employer held a position for you. An injured worker does not need to be employed by the federal government to be eligible for wage-loss. Again, the focus is on why you are not working. If you are not working solely because you were terminated for cause, you do not get wage loss. If you are not working because you are physically or psychologically unable to work due to a work-related injury, you can get wage loss. There are provisions that prohibit employees convicted of certain crimes, such as fraud, from receiving wage loss. So, if you have been terminated because you were found guilty of a crime you may not be eligible for wage loss benefits.

• What if you are working part time and receiving wage loss for the rest of the day that you are not working?

The Employees Compensation Appeals Board addressed this specifically in Janice J. Green, Docket No. 96-874 ECAB (1998). In that case, the claimant was removed for cause while she was working 4 hours per day and collecting 4 hours of OWCP wage-loss compensation. When she was terminated for cause, OWCP cut off all of her wage-loss benefits. She appealed. The ECAB overturned OWCP’s decision and determined that the claimant continued to be entitled to the 4 hours per day of wage-loss compensation, because she was unable to work for those four hours regardless of whether she had been removed or not.

RESIGNATIONS

• What if you resign employment?

It is rarely advisable to simply resign from federal employment. There are a variety of reasons for this including the impact it may have on your disability retirement, EEO and MSPB rights. Further, resigning places your health insurance in jeopardy as unless OWCP or OPM begin paying you, your group policy will expire. Every situation is different and you should always consult with an attorney that is knowledgeable about federal employment law before resigning your employment.

That said, with regard to your OWCP wage loss benefits, if you can prove through competent medical evidence that you were totally disabled prior to your resignation, or that you requested light duty and your agency notified you that none was available within your restrictions, you may continue to be entitled to wage-loss benefits even if you resign. At minimum, you should make sure that your SF-50 says that you are resigning for medical reasons.

• What if you were off of work on total disability, return to work in some capacity and then resign?

In this situation, unless you can show your level of disability increased since you returned, or your job duties changed in a significant way, OWCP may determine that you have abandoned suitable employment and invoke a penalty provision of the FECA which means you forfeit your entitlement to wage loss and a schedule award permanently. Obviously, you want to avoid that.

A better approach, in most cases, is to get a good medical report from your physician explaining why you cannot continue working at your current job duties. You then stop going into work and submit the medical report explaining why you cannot work that job at your agency. That gives the agency the opportunity to further modify your position to allow you to continue working, or tell you that no further accommodation is possible. In either case, you will not be stuck without an income as a result of resigning from what OWCP considers to be suitable employment.

• What if you are working full time, full duty and resign?

If you resign for reasons other than that competent medical evidence shows you are totally disabled from all work, then your wage-loss benefits will likely be terminated. The reason is that you were fully employed and capable of earning wages at the time of your resignation. Therefore, the reason you are not earning wages is because of your resignation and not because of your medical condition. OWCP only pays wage loss for inability to work – not for unwillingness to continue working.

• What if you are disabled from your position but not disabled from all work?

Many doctors will state your level of disability only as it relates to your full duty position. It may be clear to your doctor that you will never be able to return to working your regular job. It is important to understand that OWCP does not consider you totally disabled unless you are either unable to work at all in any capacity or you are unable to do your regular job and your agency has no light duty available. Therefore, if you are unable to work at your regular job you must still give your agency the opportunity to provide you with light duty. If you resign without providing your agency with that opportunity, OWCP may delay or refuse to pay you wage loss until your agency confirms that there was no light duty available.

If you apply for disability retirement, one of the questions your agency is asked is whether you can be accommodated. If they answer no, this may be enough to show that no light duty was available. However, because of different ways the term “accommodated” is interpreted by OWCP, OPM and EEOC, we still recommend that you ask separately, in writing, whether there is any light duty available for you before making any decision regarding your employment status.

Do not put yourself in the position where you have resigned and your agency notifies OWCP that is has light duty. Your agency does not have an obligation to take you back just because OWCP will not pay your wage loss.

CONCLUSION

As you can see from the examples above, getting terminated or resigning can have a major effect on your receipt of wage loss compensation from OWCP. Make sure to discuss your situation with someone who is experienced in handling OWCP cases before making any decisions. A misstep could very well cost you your entitlement to wage loss compensation and/or a schedule award.

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The above article was prepared by Daniel M. Goodkin, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public. The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.

His employer had offered him a temporary light duty assignment which his doctors had stated was outside of his physical capabilities. OWCP made an informal determination that he could do the job and cut off his benefits.

The ECAB ruled that before terminating wage loss benefits, OWCP has to find the offered light duty position suitable. It must then give adequate notice to the claimant of its finding and give him an opportunity to respond. It did none of those things in this case.

Therefore, the Board overturned the Office’s decision stating, “[t]he Office did not follow proper procedures to determine that the modified job offered to appellant was suitable.” It further stated, “The notice and termination decision in this case appear as abberations to established Office procedures and the well-defined precedent of the Board.”

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From: Steven E. Brown, A Professional Law Corporation

Voicemail: 1-805-496-9777; 1-800-USA-6927

If you are a Postal Service employee and have recently received a Notice like the one attached to this article (“Notice – Employees Without MSPB Appeal Rights” stating the Postal Service has no work available for you), you have legal rights of which you may not be aware.  Taking steps to exercise and protect these rights may be quite important to your financial future.

As the Notice mentions, if your work limitations were caused by an industrial injury you are probably entitled to receive FECA (workers’ compensation) benefits from OWCP for the time you spend at home when the Postal Service does not offer you any work.  Which form(s) you file, however, may impact the success of your claim for these benefits and/or the time delay before you start receiving benefits.  If you have received recent medical treatment for your industrial injury, of which OWCP is aware, we recommend NOT filing a CA-2a (recurrence of disability) form, but rather filing forms CA-7 (claim for compensation) and CA-7A instead.  It is usually more difficult to obtain payment of FECA benefits from OWCP when filing a recurrence claim using a form CA-2a, as opposed to just filing for benefits using a form CA-7.  Under the workers’ compensation law, when you are working limited duty due to an accepted industrial injury and the employer reduces or eliminates your work hours, you are by definition “totally disabled” for those hours/days and entitled to FECA benefits to cover the wage loss.  Our office has represented and counseled thousands of Postal employees in OWCP claims and can assist you in making sure you receive all the benefits to which you are entitled.    

Once you begin receiving benefits from OWCP, you will likely be referred for vocational rehabilitation. This process typically involves you being referred to a government-contracted vocational specialist who will then attempt to find you a job in the private labor market. The goal of the program is to provide some token training so that OWCP can identify a job in the private labor market that you can perform within your medical restrictions. Once they have identified such a job, they will provide some assistance in helping you obtain it. However, even if you do not get the job they have identified, they will still reduce your compensation based on a finding that you have the wage-earning capacity to perform that job. There are very specific rules for what kind of job can be found suitable for you. It must be within the injured worker’s medical restrictions, and the vocational rehab specialist must show that the injured worker has the necessary work experience or training to qualify for the position. The vocational rehabilitation counselor must also show that such a position is readily available near your home. Often, the vocational rehab counselor will identify a position that is not within the injured worker’s restrictions or qualifications. On the basis of such a determination, OWCP will often reduce compensation as if the injured worker took the position. Our office has represented many injured workers through the vocational rehabilitation process to ensure that the position identified for the injured worker is in fact “suitable” within the regulations and OWCP’s guidelines.

Assuming your disability is permanent – namely, it is expected to last for at least another year – you are also entitled to apply for early retirement under FERS or CSRS based on disability.  The Notice you received from the Postal Service does not even mention this option.  Unlike workers’ compensation, disability retirement is designed as a permanent, lifetime benefit.  If disability retirement is approved, you will be able to keep your federal group health and life insurance permanently, and pay the low federal group premium.  If you are granted disability retirement, you can still work at another (non-federal) job. So long as you earn less than 80% of the current pay rate of your last occupied federal position, you can continue to receive your full retirement benefit from OPM. We have found over the years that many deserving disability retirement applications are denied due to error by OPM and/or due to improper documentation, which we can usually remedy either informally or at the hearing stage.  Even though many applications for disability retirement are denied by OPM, we have filed and obtained such benefits for over a thousand Postal and other federal employees. Every one of these applications our office has filed in the last several years has been successful.   

In both workers’ compensation claims and disability retirement applications, there are strict (and differing) requirements on the type of medical and other evidence that must be presented. Most doctors find it helpful when their patient is represented by knowledgeable legal counsel, who can advise them what they must write in an appropriate medical report.  

Although you may feel that the Postal Service’s decision to send you home is unjustified and may be motivated by disability discrimination, you should be aware that there are several class action complaints currently pending at EEOC under which you may already be covered.  If you are included in the class of Postal employees being represented by class counsel, you cannot “opt out” of that class action, and your rights with regard to disability discrimination will be determined in that case instead of in any individual EEO complaint you might file. On the other hand, if you are not covered by those class actions you retain the right to file your own EEO complaint about the discriminatory treatment.  The decision about whether to pursue a disability discrimination complaint is best made after consulting an attorney, but if you’re not sure we advise that you file your request for counseling (which is the first step in the EEO process) immediately to avoid missing the 45-day filing deadline. 

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IF YOU NEED ASSISTANCE ABOUT ANY OF THESE MATTERS, PLEASE CALL US - 805-496-9777

Recently, we had an injured client come to us who previously did not apply for disability retirement based on some bad advice she had received. As she came to our firm over a year after the time she left her position at the Postal Service, she lost all her rights to disability retirement. Losing her disability retirement also complicated her workers’ compensation case, and it eventually lowered the amount she could collect under the Federal Employees’ Compensation Act (FECA) as well. If this client had known when the rights to claim her benefits would expire, she would have been a lot better off financially.

It is equally as important for a federal employee to find out when the rights to claim workers’ compensation benefits expire. Again, I find that often federal workers are not always informed by their employers of these important deadlines. An example of a deadline for workers’ compensation is that a written claim for compensation must normally be filed within three years after the date of a traumatic injury. For a dormant injury, the three years starts when the employee was aware or should have been aware that his or her injury is related to the employment. We have had many clients that have injuries that occurred years or decades earlier, but where no claim was filed. While it is not always impossible to get those claims approved, it certainly can make things more difficult and time consuming for the injured worker.

There are exceptions to these deadlines. For example, under FECA, if an official supervisor of the injured employee has actual knowledge of the injury within 30 days of its occurrence, then the limitations period in which to file a claim is extended. It would generally be better for a federal employee to still submit a timely written claim, since then they would not have to prove that their supervisor had actual knowledge. Another exception is if an injury incapacitates the employee mentally or physically so that a written notice and claim cannot be executed. There are other exceptions not listed here, and at any rate, it is far safer to submit a written form within these time periods if possible than to rely on an exception. Note that any words of claim are sufficient: as long as the employer is put on written notice that you were injured and you claim the injury is related to work, that is enough to extend the time limit for filing a formal claim with OWCP.

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The above article was prepared by Brett E. Blumstein, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public. The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.