Camp Lejeune Contaminated Water and OWCP

President Obama signed the "Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012" ("Camp Lejeune Act") on August 6, 2012. This law in part provides for medical care for veterans and their families who were exposed to contaminated water while stationed in Camp Lejeune, North Carolina. Passage of this legislation has triggered inquiries concerning FECA coverage for employees and former employees at Camp Lejeune.

A federal employee would be entitled to FECA benefits for a timely claimed medical condition caused by water contamination at Camp Lejeune if he or she was exposed to such water contamination in the performance of his or her duties (such as by drinking such water while at work) and could provide medical evidence that such exposure caused, contributed to or aggravated that medical condition.

In a case of latent disability (the illness shows up later), or a condition such as a cancer due to occupational exposure, the time for filing a claim does not begin to run until an employee is aware, or by the exercise of reasonable diligence should have been aware, of the causal relationship between his or her employment and the compensable condition / disability.

Labor Secretary Solis appoints new permanent Member to ECAB

Hopefully boding well for OWCP claimants, on July 2, 2012 Patricia Howard Fitzgerald was appointed as one of the three permanent Members of the Employees’ Compensation Appeals Board by Secretary of Labor Hilda L. Solis. Prior to her appointment she was a staff attorney for the American Postal Workers Union where, since 2004, she advised the Director of Industrial Relations on matters concerning the negotiation and enforcement of the APWU/USPS national collective bargaining agreement. She also handled matters pertaining to the National Labor Relations Act, Family and Medical Leave Act, Privacy Act, and USERRA.

Earlier in her career, she was an associate attorney at Zwerdling, Paul, Kahn & Wolly, P.C., where she litigated cases on behalf of employees, labor organizations, and professional associations in various labor and employment law matters. She was also awarded a law fellowship at the Service Employees International Union where she assisted with litigation, legislative initiatives, and union organizing campaigns.

Judge Fitzgerald holds a Bachelor of Science degree in Industrial and Labor Relations from Cornell University and a Juris Doctor degree from The Catholic University of America, Columbus School of Law. She is a member of the Maryland and District of Columbia Bars.

This appointment is a step toward creating some balance to a Board still dominated by Bush appointees selected for their management / employer orientation and political fundraising prowess.

Be careful when posting anything online

When you have a work related injury, OWCP and employing agency investigators will conduct surveillance to see if your activities are consistent with your medical restrictions. Such investigations will include viewing your web page, blog, Facebook account, My Space account, and any other content you place on the internet.

They are  looking for anything they can use against you. For example, dancing, participating in sports, horsing around, or other hazardous, physical and/or embarrassing activities.       

Unlike other types of injury systems, there is never a settlement of an OWCP case. For so long as you wish to receive these benefits, be very aware of what you put on the internet and how it may look to others. If you feel that you must engage in online media, I strongly recommend that blogs, web pages and internet accounts (i.e., Face Book, My Space, networking pages and any other personal internet pages) be set to “private” or “by invitation only” so that the general public cannot readily access these accounts, web pages or blogs.

However, just because a page is “private” does not stop federal law enforcement personnel from gaining access to your content. Please be careful what you post or say online!

FECA Benefits Under Attack - Call Your Senators!

Below is a bulletin sent out by FLEOA regarding Sen Bill 1789 and an amendment proposed by Senator Akaka that would strip the huge benefit cuts to FECA recipients out of the Postal Reform Act.

Please contact both Senators from your state to tell them that they should support the Akaka amendment to Sen Bill 1789. This bill could be taken up as soon as tomorrow, so time is nearly out to convince Senators to vote against 1789 or at least support Sen. Akaka’s amendment.

FLEOA BULLETIN:
FLEOA continues its fight to maintain the FECA benefits federal law enforcement officers have earned. Senator Akaka's Amendment S.2034 to the "21st Century Postal Reform Act" is a common sense reform that sustains the benefit levels all injured federal officers deserves and lays the groundwork for correcting the system so it better supports injured law enforcement officers.

FLEOA can't do this alone, it needs the help of EVERY member to call both of their respective Senator's DC offices and express to them the urgency of supporting Senator Akaka's amendment.

You can contact your Senators by calling the Capitol switchboard at (202) 224-3121.

Stay strong

FLEOA

Dear Senator:
I am writing on behalf of the more than 26,000 members of the Federal Law Enforcement Officers Association to advise you of our strong support for S. Amdt. 2034 to S. 1789, the “21st Century Postal Service Act,” offered by Senator Akaka.

As you know, included in Title III of the legislation are provisions to enact governmentwide reforms of the Federal Employees’ Compensation Act (FECA). While FLEOA does not disagree with the need to reform both the U.S. Postal Service or FECA, we hardly believe it is appropriate to attempt both in the same legislative vehicle. More importantly, we have serious concerns about the impact that the reforms in Title III will have on injured law enforcement officers currently in the FECA system. In particular, the retroactive application of benefit cuts for law enforcement officers upon reaching retirement age and the elimination of the FECA supplement for dependents.

Amendment #2034 is a sensible compromise that will make commonsense changes to the FECA program without reducing benefits for those who have sacrificed their health in service of this nation. It would replace the current language of Title III with the text of H.R. 2465, the “Federal Workers' Compensation Modernization and Improvement Act,” which passed the House of Representatives last November by a unanimous voice vote. Specifically, Amendment #2034 will ensure injuries or illnesses sustained as the result of terrorism are covered as a war-risk hazard, streamline the claims process for workers who sustain a traumatic injury in a designated zone of armed conflict, expand the Labor Department’s (DOL) ability to collect from third parties and combat fraud, and promote greater accountability in the program. And that is why FLEOA respectfully requests your support for this important amendment.

On behalf of the membership of the Federal Law Enforcement Officers Association, thank you for your attention to our concerns. Please do not hesitate to contact me, or our Washington Representative Chris Granberg at 202-457-7755, if we can provide you with any additional information or assistance.

Respectfully,
Jon Adler
National President

Interesting new ECAB precedent

It is not unusual to receive a letter from OWCP "denying" entitlement to some aspect of your benefits that does not include appeal rights. Without a final decision and appeal rights, if you asked for review, the Employees Compensation Appeals Board and the Branch of Hearings and Review would simply dismiss your request for review as there was no final appealable decision. In a very recent decision, the Board has explained that even if appeal rights are not attached to correspondence denying you benefits, that the Board still has jurisdiction to review the denial. This is a concept long recognized by the MSPB and in many other jurisdictions. It is a small step in the long process to rein in the Kafkaesque manner in which OWCP conducts itself.

If you receive a letter denying benefits that is not framed as a formal decision with appeal rights, you can still appeal that denial to the Board. In B.C., docket 11-1903, issued March 26, 2012, the Board writes:

On July 14, 2011 an OWCP claims examiner advised appellant that her case (xxxxxx595) had been formally denied by decision dated March 12, 1993. OWCP further explained that it could not consider a recurrence on a denied claim and, therefore, no further action would be taken concerning the June 14, 2011 recurrence claim. It effectively denied appellant's recurrence claim. However, the July 14, 2011 correspondence did not provide any appeal rights. The Board considers the claims examiner's July 14, 2011 action a final, adverse decision subject to review under 20 CFR §§ 501.2(c) and 501.3(a).

This represents a long overdue recognition that the Board has jurisdiction to review a denial even where the formatting of the denial document is flawed.

OWCP contractor files for bankruptcy after allowing claimant records to be stolen

A company called Impairment Resources was recently burglarized and computer drives with confidential claimant information was stolen. This is relevant to OWCP claimants because physician Christopher Brigham, who has contracts to review schedule award requests for OWCP, performs that work as Impairment Resources.

A report from the Wall Street Journal yesterday (see link below), advises that rather than deal with the time and expense of helping people with their problems created by this breach, Impairment Resources is being liquidated in a Chapter 7 bankruptcy.

It is very troubling that OWCP continues to send confidential OWCP claimant information to Christopher Brigham / Impairment Resources under these circumstances.

Even more troubling is that OWCP has not bothered to notify claimants of the theft of their personal information nor taken any steps to advise OWCP claimants what steps they can take and what resources are available to them to protect themselves from identity theft and other problems caused by the failure to have appropriate measures in place to secure claimant records.

http://blogs.wsj.com/bankruptcy/2012/03/12/burglary-triggers-medical-records-firm%E2%80%99s-collapse/

Getting records into your OWCP file

OWCP has created a new function that allows you to "upload" records directly into your workers compensation file instead of mailing or faxing. I have been using this function for about a month and it seems to work very well. Yesterday I was speaking with a Hearing Representative about an upcoming hearing and she was able to see a document that I had uploaded to that file just a few minutes before I called her. Here is the link: https://www.ecomp.dol.gov/#/

OPM Disability Retirement

I am frequently asked how does OPM figure my disability retirement pension payment. For a FERS disability this is a fairly straightforward matter. During the first 12 months, you are paid 60 percent of your high-3, minus 100 percent of any Social Security disability benefit to which you are entitled. After the first 12 months, you receive 40 percent of your high-3. minus 60 percent of any Social Security disability benefit. Keep in mind that Social Security disability is frequently approved after OPM has already commenced paying you. In that circumstance, when you receive a retroactive payment from Social Security, you need to hold on to that money because OPM is going to come back and recalculate your pension payment from the date your Social Security started and declare an overpayment.

Social Security Disability and OWCP

If you become eligible for SSDI benefits while drawing FECA benefits from OWCP, whether for wage loss or a schedule award, there is frequently an offset that will reduce your SSDI benefit. SSA has published documents that explain how the offset is calculated. Keep in mind that attorney fees paid in connection with your receipt of FECA workers' compensation payments from OWCP should be reported to SSA, as this will be used to reduce your offset amount.

http://www.socialsecurity.gov/pubs/10018.html

Submit Your OWCP Forms Online

OWCP has gone live with a new function that allows for web submission of forms and documents. You can submit a new claim form to create your case without going through your agency if you follow the instructions to first file the OSHA form. CA-7 and CA-7a forms can be submitted as well. There is a separate function to upload documents. This is pretty amazing, I wonder if it really works. I submitted a document in one of my cases today to see what happens. Here is a link: https://www.ecomp.dol.gov/#/

Do I need a lawyer to represent me with my OWCP claim for FECA benefits?

This is a question that I get asked quite often. OWCP sends claimants form letters telling them that they do not need a lawyer to represent them. When asked this question, I try to explain that after almost 20 years, there is a lot that someone like me can bring to the table. While speaking with a prospective client the other day I ran across a situation that answers this question pretty conclusively. Unfortunately, Ms. X's OWCP claim has recently been terminated. The termination was premised upon the report from a physician, Menachem Meller, MD, who the Employees Compensation Appeals Board indicated in a July 26, 2011 decision should not perform referee examinations. Based upon that decision, OWCP stopped sending my clients to that doctor, but this injured worker was sent a notice in September 2011 to attend an examination with this doctor who predictably wrote a report indicating she had fully recovered from her injuries when her own doctors continue to explain she has most certainly not recovered. If I had been representing her at that time, OWCP would not have sent her to this doctor, and if they did, I would have known to object. Even though FECA is supposed to be a noneadversarial process, and OWCP has an obligation to protect injured workers, in practice, OWCP treats injured workers in an adversarial manner and pretends that an injured worker is fully informed about all nuances of this process. So the answer to that common question in this case is that if I had been representing Ms. X she would most likely not even have been sent to this doctor, and if she had, I would have known to object to them selecting him, and she would then most likely not have had her benefits terminated. There is a great deal that a knowledgeable and zealous representative can bring to the process, OWCP is not looking out for you.