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.

Benefits for Same-Sex Married Couples Under FECA

The Obama administration has now formally stated that government discrimination against gays and lesbians is unconstitutional under the equal protection principles of the Fifth and Fourteenth Amendments. I would be interested in hearing from any FECA claimants who are in a same-sex marriage but are not receiving the augmented compensation rate that a married person living with their spouse is entitled to receive. The following link contains the Department of Justice announcement.

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

Q&As about FECA benefits

OWCP has released a publication that describes in non-technical language the basic provisions of the Federal Employee Compensation Act (FECA). It is written in a question-and-answer format and addresses the most common issues about entitlement and claims processing. Injured workers may want to read this document to get an overview of the benefits that they are entitled to receive.

Here is a link: http://www.neguard.com/HRO/documents/ca-550.pdf

How do I change my attending physician in my OWCP case?

I am frequently asked by FECA claimants "how do I change my attending physician for my OWCP case?" This can be a problem because many claims examiners will at first ignore your inquiry, then send you a letter telling you to explain why you want to change physicians, and then send you a response to your explanation telling you that your current physician, in the opinion of the claims examiner, is giving you proper care. All of which will likely have wasted six months. The simple way to change physicians is to get a note signed and dated by your current attending physician addressed to OWCP in which the current physician writes "Please be advised that I turn over the function of attending physician to (fill in the name, address, tel number of the new doctor)." Under this circumstance, there is nothing for the claims examiner to do other than document to the file that the prior attending physician has turned you over to another physician. I find that by the time you want to change, the physician's office is often happy to see you go. You can bring in the note needing only a signature to your physician's office and explain that you need a note like this from the doctor. Frequently, the doctor will sign that note. Put your claim number on it and send it in to OWCP, you now have a new attending physician.

Of course, if the reason you need to change is that your current attending physician has retired, relocated out of the area, or has stopped accepting FECA claims, you should simply write the examiner explaining your physician has retired (etc) and you have selected a new attending physician who is ___.

Filing Deadlines

Typically, a claim for compensation must be filed within three years of an injury. The three-year time period begins to run from the time the employee knew or should have known that her condition was caused by her job.

This deadline may not apply if the injured employee’s immediate superior was notified of the injury within 30 days of its occurrence. The employee must show not only that the supervisor knew of the injury, but also that he/she knew that it occurred on-the-job. Section 8119 of the Act gives specifics of notification requirements.

In the case of occupational disease, the time for filing begins to run when the employee knows or should have known that her condition was caused by her employment. Where the employee continues to be exposed to the work factors causing the condition, the time limitation starts over every time the person is exposed again, and will run from the date of the last exposure to the work factor. For instance, if you are exposed to loud noise or asbestos on the job, if you learn that you have a medical condition caused by that exposure, but you continue being exposed while continuing to perform your federal employment, your time limitation does not start running until the last day you are exposed to that work factor in your job.

Flaws in the AMA Guides, 6th Edition

There is a crisis occurring with schedule awards. OWCP has adopted the AMA Guides, 6th Edition. Unfortunately, the AMA appears to be completely in the pocket of the insurance industry as impairment rating percentages have plummeted under the 6th Edition. OWCP with its complete focus on pleasing employing agencies and complete disregard for the well being and rights of injured workers will likely characterize this immense cost savings as the result of good management practices, not merely the adoption of an anti-worker methodology for determining schedule awards. Doctors now complain bitterly about how much more complicated and time consuming it is to do a rating under the 6th Edition and how frustrating the process is because they are forced to provide ratings that vastly underrate workers' impairment. The design of the 6th Edition prevents them from rating all of the conditions impairing a rateable body part, which is in direct conflict with the FECA requirement that all impairments to the rateable body part due to the injury or pre-existing conditions must be included in the rating.

Recently, the Employees Compensation Appeals Board had an opportunity to correct this violation of FECA, unfortunately they also chose to go along with the anti-worker sentiment that is entrenched at OWCP. Obviously, OWCP should have done what many other jurisdictions have been doing and rejected the AMA Guides, 6th Edition, as fundamentally flawed and unfair to the injured worker.