Be Prepared for Your Periodic Roll Review

The Federal Employees' Compensation Procedure Manual indicates at 2-0700-17, Periodic Roll Review, that the Claims Examiner should review each case at least once a year to verify continuing entitlement to benefits, ensure that benefits are being paid at the “proper” level, resolve third party issues, and discontinue benefits when warranted. The annual review of a case often begins during the month prior to an injured worker’s birthday when form letters are mailed requesting information about entitlement to other government benefits, status of dependents, third party settlements, and possible work activity. Simultaneously, a request for medical evidence is made seeking to verify continuing presence of objective findings, an ongoing relationship of the accepted condition to the work injury, and the extent of disability.

Like a series of forks in the road, what happens next depends on many factors, some of which pertain to the specifics of your case, and some of which are the programmatic emphases of the day, the workload, or most anything else. As the Scout motto says, your best move is always to “Be prepared.” Regular medical care and timely comprehensive reports, medical testing as needed, surgery when prudent, are all obviously required. If you have moved, been divorced, or had any other change in your situation, don’t wait for the review to report it.

If you know that you are not totally disabled from the work injury, but have preexisting conditions that are also disabling, or another condition that has not yet been accepted as compensable, ensure that you have complete medical records available to prove it.

Finally, if you suspect that the axe may soon fall, the best time to seek help from a knowledgeable source is before that actually occurs in order to have the best chance of preserving benefits before you open the Notice of Decision reducing or terminating your benefits. Declining workloads at OWCP coupled with today’s economic environment and budgetary issues all mean that your number may come up sooner rather than later. Be prepared!

Department of Labor is advocating reduction in FECA benefits

The Labor Department has proposed what they characterize as an "overhaul" of the FECA process. It is noteworthy that OWCP has been presenting the proposed changes to employing agencies, "stakeholders" in their parlance, but has not made any effort to communicate this to injured workers who apparently get in the way of the process of managing FECA, the federal workers' compensation benefits program for federal employees. This is being presented as a way to move older, injured workers into retirement and remove alleged "disincentives" for younger employees to return to work. They propose that injured claimants should receive 70 percent of their salaries, tax free, until they reach retirement age. When they reach retirement age, under Labor's proposed plan, benefits would be reduced — called the "conversion entitlement benefit" — to 50 percent of their gross salary at the time of their injury, with cost of living adjustments, still tax free.

http://www.federaltimes.com/article/20110414/BENEFITS01/104140301/1001

Get SSA to "pay" attorney fees arising from your OWCP claim

If you are receiving FECA benefits from OWCP and a reduced Social Security Disability payment from SSA, you can get SSA to "pay" your attorney fees as an "excludable expense." SSA has a document available online explaining how to report your attorney fees paid in connection with receiving FECA benefits from OWCP. The attorney fees will be used to reduce the offset amount. See SSA POMS - DI 52150.050 - Excludable Expenses

http:/policy.ssa.gov/poms.nsf/links/0452150050

Facebook and Other Social Media

When you are receiving federal workers compensation benefits you are a second class citizen. Your actions are scrutinized and interpreted against you. It is always important that your activities are consistent with your physician’s restrictions. If you can’t push a mower around at work, you better not show up on a video pushing one around at home. With the explosion of social media has come a new world of risk for injured workers. Comments, pictures, friends, all of this information that gets posted becomes possible sources of negative information about you. If you are posting online, realize that it will likely be read by people who are not looking out for your best interest. That picture of you attending a sporting event or together with your friends may give a false impression of your ability to function. I recommend that my clients always assume that they are under surveillance by their employing agency or OWCP. If you must post to social media sites such as Facebook, assume that what you post is going to get reviewed by someone from your job.

Time Limitations Do Not Always Apply

Last spring I commented on time limits for filing a federal workers compensation (FECA) claim with OWCP. It bears repeating that just because an injury occurred long ago, the claim can sometimes still be filed now. Not that procrastinating is a good idea, and certainly the passage of time can make it impossible to get benefits approved that would have been winnable had the claim been pursued in a timely manner; nonetheless, a claim that is seemingly out of time can still be successful under some circumstances.

The time limitation to file a claim for an occupational exposure such as hearing loss and asbestosis is three years from when you were last exposed to the work factor or three years from when you knew or should have known of the illness, whichever is later. “Notice” is the key word. If your employer conducted screenings for asbestos exposure or hearing loss, those records in your personnel file can sometimes be used many years later, when your claim is seemingly far out of time, to establish “notice” of your claim to your employer.

Another area where time limitations may not apply is with schedule awards. So long as your claim has not been terminated, you should be able to claim a schedule award or an increase in a schedule award. The critical time limitation is that you must be alive to claim it. That means the CA-7 requesting the schedule award and sufficient medical evidence to establish your rating must be in the workers compensation file while you are alive.

Even when someone has received an unfavorable decision in a FECA case from OWCP and they have missed the one year for requesting further review, there are limited circumstances where a Reconsideration can successfully be pursued. However, the standard of proof is much more difficult, described by OWCP as “clear evidence of error.” Generally, new medical evidence will not get you over this hurdle. In my experience, one must usually point to an error by OWCP to meet this standard.

A claim for compensation for lost wages in an accepted case may be claimed well after the fact as may an election of benefits if you are in receipt of an OPM annuity. Claims for consequential injuries and recurrence of disability do not have a firm deadline for submission either.

A request to modify a Loss of Wage Earning Capacity determination can also be submitted at any time. This is especially relevant presently for many USPS workers who are being put out of work due to the NRP who were previously given erroneous LWEC determinations.

Computer Problems Delay 3/1/11 COLA for FECA Recipients

I have in recent days received many phone calls from FECA recipients wondering why they had not received the March 1, 2011 COLA adjustment to their periodic roll wage loss and schedule award payments. The March 1, 2011 COLA is 1.7%.

I have spoken with several knowledgeable persons who confirm that some sort of computer glitch has delayed implementation of the 1.7% COLA. The next periodic roll payments should reflect the COLA; OWCP will send FECA recipients a separate supplemental check to cover the COLA adjustment effective March 1, 2011 or they may include it in the next periodic payment.

At least one claimant who called District 2 (NY) was told that there will not be a COLA adjustment this year which I am advised is incorrect. Unfortunately, FECA claimants will actually see their net check go down once again in 2011 as the cost of health insurance continues to increase far more rapidly than the COLA on their wage loss and schedule award payments.

Beware Bad Advice About A Schedule Award

These days, there are some lawyers advertising heavily who really just want to handle schedule award cases. But be careful. If you pursue a schedule award recklessly, you may be putting your approved workers’ compensation benefits at risk.

I met with a gentleman the other day who has spoken to me on numerous occasions over the last decade regarding his long-standing workers compensation case. This time he was poking around on the internet and stumbled on the website of a lawyer who apparently only wants to focus on getting FECA claimants schedule awards from OWCP. The website brags about how much this lawyer can get injured workers for schedule awards. A link pops up inviting you to speak with the lawyer. Next thing he knew, they were discussing his case on the phone. This lawyer starts explaining how he can get him a schedule award, and that he should be entitled to a lot of money.

Now this gentleman has had a hard life and, fortunately, has learned to think twice about things. We sat down and talked about the case and the various pluses and minuses of the situation. Sure, he could pursue a schedule award. But a schedule award is most valuable to someone who is back to work earning a salary or to someone receiving a pension under CSRS. This gentleman is not eligible for a pension and cannot work which means that his schedule award must be collected INSTEAD of his wage loss check. So all he would get is a slightly larger check temporarily, probably less than a year in this case. Much of the gain would end up in the pocket of the internet lawyer. AND, the danger is that when you poke OWCP, you never know where it might lead.

I advised the gentleman that I would not open anything up with OWCP on a case like this without first making sure that his current entitlement is rock solid. A small net schedule award payment is not worth the risk that his check could be significantly reduced for the rest of his life, or maybe even cut off, as a result of a new round of directed medical examinations with OWCP-selected physicians. Pursuing a schedule award without considering the repercussions is reckless. I was not surprised that I had NEVER seen the internet lawyer’s name on an ECAB decision, which indicates that he does not have much experience handling these cases.

Be careful, there are a lot of predators out there, and not just OWCP.