Receipt of SSA retirement benefits triggers offset for OWCP claimants who were in the FERS system

OWCP seems to be focusing increasingly on finding claimants who have received overpayments triggered by the conversion of their SSA disability benefit to a retirement benefit when persons attain their official retirement age. Note that when you complete and sign the Form EN1032 that your OWCP claims examiner is supposed to send you within thirty days of your birthday each year, that form asks, amongst many other things, whether you have received SSA benefits as part of an annuity under the Federal Employees Retirement System (FERS). That form also includes a statement where you acknowledge that "I understand that I must immediately report to OWCP...any change in income from federally assisted disability or benefit programs." If you begin receiving SSA benefits because of age (an SSA disability converts at your official retirement age to a regular retirement) there arises an offset that reduces your OWCP benefits based upon the portion of the SSA benefits attributable to years of federal service as an employee under the FERS retirement program. OWCP will receive a calculation of this amount from SSA and will reduce your benefits. Generally, you will receive a notification from SSA that you are about to be switched from the SSA disability to the SSA regular retirement. When you receive that letter, you need to send a copy to OWCP and ask them to determine if there will be any change to your compensation rate. If you do not do this, OWCP will generally treat the overpayment that arises as an at fault determination using the language from the 1032 form to impute that you were aware of this. The entire issue is very complicated. You need to be aware that when you begin receiving regular retirement payments from SSA and if you worked under the FERS retirement system, you will get caught up in this and likely find that a portion of your compensation is taken away due to the offset against your compensation benefits.

Be Careful With Your Schedule Award

There seems to be an increasing number of lawyers and nonlawyer representatives wanting to only represent OWCP claimant's with their schedule awards. There are some traps for the unwary, and it is important to understand whether someone is looking out for your interests or just their own. Firstly, you cannot collect a schedule award and wage loss benefits. I get calls from folks regularly who want to switch to their pension so they can collect their schedule award. Keep in mind that most schedule awards are not that substantial. A schedule award is most valuable to someone who is back to work, or someone drawing a CSRS pension, or someone already collecting a wage loss check from OWCP for a different injury. For OWCP claimants in the FERS system who are disabled and collecting SSD, if you switch to your pension to collect the schedule award, you are really not gaining that much: only the value of your pension check that is already being offset because of your SSD benefit. That is because whether you collect a schedule award check or wage loss check, the workers compensation offset by SSA from disability benefit recipients often significantly reduces injured workers' SSD payment and when you get SSD, OPM reduces your pension check.

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.