FECA and Workers Compensation for Federal Employees

Episode Notes

Transcript

Workers Comp Matters: FECA and Workers Compensation for Federal Employees – 2/26/2015

 

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Alan Pierce: Welcome to Legal Talk Network and our show, Workers Comp Matters. I’m your host Alan Pierce, I practice workers comp law in Salem, Massachusetts with the law firm of Pierce Pierce & Napolitano where we concentrate on the representation of injured workers and their families. Primarily in workers compensation claims and disability claims. Today, our show comes from the annual convention of WILAG, The Workers Injury Law & Advocacy Group. We are broadcasting today from the Bacara Resort in Santa Barbara, California and we have a guest for today’s show, Steven E. Brown, PLC of Westlake Village, California. Steve is an attorney who represents injured workers, he is a graduate of Columbia University, has his law degree from University of Southern California. He is a member of a variety of Bar associations including WILAG, the California Employment Lawyers Association, The American Association for Justice, just to name a few. Steve’s topic today is workers compensation claims under the federal workers compensation act or FECA federal employees compensation act administered by the office of workers compensation programs. OWCP, there are so many acronyms in our field that it’s hard to keep up. So Steve, Welcome to Workers Compensation Matters.

 

Steven E. Brown: Thank you, Alan.

 

Alan Pierce: And as I mentioned, most of us who do workers compensation as a practice deal with state based workers compensation laws and claims and we represent injured workers who work in private employment or municipal state governmental employment. However, as we all know, there is a whole separate body of law that covers federal employees. So why don’t you just give us briefly an overview of who is covered, the jurisdictional requirements and things of that nature.

 

Steven E. Brown: Yes, so the Federal Employees Compensation Act covers all civilian government employees. Not military, not contractors, but people who actually work for the government. So, for example, anybody who works for any executive agency, or the other two branches of government, legislative or judicial. For example, the judge who was shot over in Arizona when Gabby Giffords was shot, his widow is getting benefits under this law because he was considered in of course in scope of his employment when he was meeting with her on that day when he was killed. So a lot of people you wouldn’t even think of are covered by this law.

 

Alan Pierce: I know from my experience, most of the people who call my office seeking representation, either work for the U.S. Postal Service or the local Veterans Administration hospitals. They seem to be the largest of the federal employers, at least in the metropolitan Boston area – even though, obviously there’s pockets of all the other agencies. As a matter of practice, I don’t take those cases. I used to and I know – and I’d like you to explain – how and why there is such a narrow practice and number of practitioners who specialize in or represent these types of workers.

 

Steven E. Brown: The government system is unique in that there is no judicial review of anything that the Department of Labor decides on these cases. So many of the typical legal skills that we learn in law school you can’t use because you can’t go to court. So it’s a purely administrative practice. You find yourself trying to convince a claims examiner who works for the Department of Labor that this is a claim that they should grant. There are appeals processes within the Department of Labor, but you can never go outside of labor and that creates some problems.

 

Alan Pierce: So would you agree that the fundamental underpinnings of the federal workers comp system is similar, if not identical, to the state’ s systems? That is, it is an exclusive remedy which means that in exchange for getting these benefits, the federal employee who was injured at work – even at the fault or negligence of the employer – can not bring a civil action or a tort suit and must rely on the workers comp benefits.

 

Steven E. Brown: Yeah, it’s exclusive just like in the state systems.

 

Alan Pierce: And like the state systems, I then would assume that the benefit levels are defined and in a sense limited. What are the benefits and how might they differ from states?

 

Steven E. Brown: Government employees are all paid under a system of schedules. So, for example, a GS-2 employee is one of the lowest paid. GS-15, 16, 17, these are higher paid employees. So the top that you can receive from FECA, the Federal Employees Compensation Act, is the top pay of a GS-15; which is a middle level upper manager. And the lowest you could get is the lowest pay of a GS-2, which would be a clerk.

 

Alan Pierce: So is the postal worker’s benefit dependant on the average weekly earning-

 

Steven E. Brown: Yes

 

Alan Pierce: Or is it the annual earning?

 

Steven E. Brown: Well, it’s the same; with federal employees they all work. With the postal service they do have overtime, but overtime is not included in the workers computation. They have PS levels which is similar to the GS. So a typical carrier’s a P5, P6, and so that employee might get $40,000-$50,000 a year, and the benefits are based on either two thirds or three quarters of that gross pay.

 

Alan Pierce: What criteria depends on the person’s taking of two thirds or three quarters?

 

Steven E. Brown: If you have a dependant which is defined as either a spouse living with you, or a dependant child, or a dependant parent – there’s a whole bunch of categories of people – but basically if you have a dependant, you get the higher three quarter level.

 

Alan Pierce: The benefits are federal state income tax?

 

Steven E. Brown: Yes they are.

 

Alan Pierce: Is there a duration?

 

Steven E. Brown: No there is not, there is no time limit, dollar limit, age limit on these benefits.

 

Alan Pierce: Is there a distinction between total disability and partial disability?

 

Steven E. Brown: Sure, factually if the employee can go back to work and the doctor says you can work, say, four hours a day, and the employee goes back for four hours, then typically the Department of Labor will pay the other four hours. Two thirds or three quarters.

 

Alan Pierce: What if the medical evidence is the worker is capable of working modified duty or part time hours, and the employer doesn’t have that available? Or there’s a disagreement and the employee doesn’t feel that he can. Is there a mechanism to adjudicate or determine a partial rate as opposed to a total rate?

 

Steven E. Brown: Yes, federal employees can not refuse suitable part time or lower paid jobs. So for example, even if it’s not their regular job or their regular hours or even their regular location, necessarily. If the employer has something that’s available for them and they can do it according to the medical evidence, then if the employer offers it, then the Department of Labor will decide whether that’s suitable. And when it’s found that it’s suitable, then the employe must go back to work or forfeit his benefits.

 

Alan Pierce: And what about the alternative scenario where there is no suitable work, despite the fact that there is a capacity to do modified work if it were available. What happens to the worker in that situation?

 

Steven E. Brown: Once a claim is accepted the Department of Labor has the burden of proof to show that the person is no longer totally disabled. But total disability means that you can’t earn the wages that you could at the time of the injury. And if the employer doesn’t offer suitable employment, and if it’s a temporary disability, then by definition that person is still disabled totally, simply because the employer doesn’t offer anything. So it’s really in their advantage for the agency, the employing agency to offer work. But many times they don’t.

 

Alan Pierce: So in addition to the weekly wage replacement, or what is commonly called indemnity benefits – I don’t know if that’s the same phrase that’s used in the federal scheme -but the weekly disability benefits. The other major component of benefit would be medical benefits.

 

Steven E. Brown: Right.

 

Alan Pierce: Tell us briefly the limitations and or the extent that the medical benefits abade.

 

Steven E. Brown: There are no limits. The government does pay on a schedule, but it’s a very liberal schedule so we never really have trouble with doctors saying they don’t pay us enough. The problem is that the government will not allow medical treatment on a lien because there are no liens allowed on these benefits. So, for example, if it takes the government 6 months or a year to initially approve a claim, the employee cannot get paid by the workers comp system because the claim hasn’t been approved yet. And that’s one of the problems, is that most federal employees have health benefits which exclude work-related disabilities. So they can be stuck sometimes between the health care you’re not wanting to pay, and the Department of Labor not having made a decision yet, and that’s a problem.

 

Alan Pierce: How about another issue that has become an increasingly contentious issue on the state level and that is the causal connection; the nexus between injury and disability. Especially where we have an aging workforce or we have workers who have what’s known as comorbidity factors. They may have underlying conditions that are aggravated by work, such as arthritis. A postal worker injures his knee and the 60 year old has been carrying bags and carrying mail for his adult work life. He’s got a fair degree of osteoarthritis in the knee; suffers a miniscule tear, the miniscule tear is repaired. Do you have distinctions between aggravation of a prior condition or major cause? What’s a causal relationship standard?

 

Steven E. Brown: For pre-existing conditions, there’s no apportionment. So for example, if he had a pre-existing problem with his knee, but he was able to do his job, then he has the injury, now he’s had post surgery he’s got some limitations. The entire amount of limitation is now covered by the workers comp system. Because even though he might have had a medical condition before the industrial injury, he didn’t have any disability; he was doing his job. So there is no apportionment in these cases.

 

Alan Pierce: Does the federal government, the office of workers compensation programs schedule independent medical examinations to have one of their physicians coment on either diagnosis, degree of impairment, and the connection between that diagnosis impairment and the work?

 

Steven E. Brown: Yeah. Infact, one of our complaints about the Department of Labor’s administration of this law is that they usually don’t ever actually believe the claimant’s physician. So we get an excellent report from a doctor, it’s very clear on cause of relationship, discusses it for two pages, and somehow it’s not good enough so they always send it out to a second opinion. Although, really looking at it fairly, it doesn’t need to be sent out to a second doctor and meanwhile the benefits are not being paid. So that’s another issue.

 

Alan Pierce: And what is the first line of payment, who is the individual? I know you mentioned claims examiner.

 

Steven E. Brown: Yes, claims examiner. And they have senior claims examiners and they have claims managers and they have district directors.

 

Alan Pierce: Are these nameless faceless folks or at the inception of a claim do you actually know who your claims examiner is?

 

Steven E. Brown: Yes, we know because they send us a letter and it has a name on it. And sometimes we know from the name whether we’re going to have a problem or not.

 

Alan Pierce: Okay, let’s assume there’s a problem. And the claims examiner is either slow in doing his or her job or does the job to the detriment of the injured worker. What’s the next step? Where’s the level of litigation, if you will?

 

Steven E. Brown: As I mentioned, there’s no judicial review and there’s no way to, for example, file a lawsuit to make the claims examiner make a decision. And that’s one of the problems with this system is it’s self-policing, it’s self-executing, and there isn’t a lot of oversight. So the employee could file a complaint with his congressman or senator, and they would send a letter. What we do is we go up the chain of command. If we’re representing the employee, we go up to the senior and we try to convince them that something has to happen in this case. But there really isn’t any way if getting to court and getting and order because there’s no jurisdiction in the federal courts.

 

Alan Pierce: Is there ever an evidentiary hearing of any sort?

 

Steven E. Brown: Yes, but only if the claim is denied. So let’s say it’s denied. You can request a hearing within 30 days; you have other ways of appealing but no other way that you could actually have a live testimony in front of a person. These are all done by telephone but still, it is a live hearing.

 

Alan Pierce: How are the jurisdictions carved up around the country. So that where would the claims examiner, for example, in Southern California be?

 

Steven E. Brown: They would be in San Francisco. There are 13… no, I think 14 districts plus another one in D.C. There’s at least, I would say, 18 or so districts all together around the country. Some of those districts only handle cases from overseas, for example.

 

Alan Pierce: That’s right, there’s a lot of federal employees overseas, so we’re not talking about military, we’re not talking about defense-base act and other types of governmental employees or governmental benefits for overseas workers. So California just has the one office or one area in San Francisco?

 

Steven E. Brown: Oh, yeah. There’s California, Arizona and Nevada.

 

Alan Pierce: So you don’t really get to see the claims examiner. This is something done either telephonically or by email now.

 

Steven E. Brown: That’s another problem with the way the law’s administered is it’s not transparent. So, for example, the Department of Labor refuses to use emails. So we can’t communicate with the claims examiner even in an emergency situation. We leave a message and they may call back or they may not. There’s not an open line of communication with the claims examiner. Often we will file a document that they’ve requested and two days later we get a denial of the claim saying we didn’t file the document, even though it’s electronically filed. So really, we should have an open line of communication with the folks who decide these cases and we can’t because they won’t.

 

Alan Pierce: We’re going to stop right there, we’re going to take a brief back and we will be back in a few minutes with Steven Brown talking about federal employees compensation.

 

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Alan Pierce: Welcome back to Workers Comp Matters, we’re here today from the Bacara Resort in Santa Barbara, California at the annual convention of the Workers Injury Law & Advocacy Group, otherwise known as WILAG. And we we’re talking today with Steven Brown about federal workers compensation. Steven, we were talking about the levels and types of benefits. Certainly as state workers compensation law has evolved, we have seen certain types of injuries or conditions covered that have not been previously covered. So I’d like to just explore briefly with you some of the more common problem areas we’ve run into. For example, is there a distinction for psychological or psychiatric injuries without physical injury? Stress-related claims.

 

Steven E. Brown: There is not. And again, there’s no apportionment for those. So for example, the example I give is that let’s say you file a stress claim based on something that happened at work – abuse by your supervisor, or whatever. And at the same time your father died and you had a bad divorce or something around the same time. It wouldn’t matter because the legal test is whether the work events contributed – no matter how slightly – to the production of that medical condition which then disabled you. So again, there’s no apportionment in stress that’s fully covered.

 

Alan Pierce: What about repetitive stress? It used to be under state workers comp practice, you needed to have an injury occurring at a specific date time and place and we know that the requirements of physical labor do not always line themselves to injuries that occur at 2PM on a Friday afternoon that might be the result of accumlative trauma, repetative stress. Is there a recognition of those types of injuries?

 

Steven E. Brown: Oh, absolutely, you have two types of claims under FECA other than death benefits. You have a CA-1 claim, which is traumatic injury, something occurring within one work day or one work shift, and a CA-2, which is an occupational disease, which is defined as everything else. Two day, twenty years, that’s a CA-2.

 

Alan Pierce: How about integration with other sources? Let’s say a federal employee is at or nearing retirement age, or might be eligible for early retirement based on disability. How is the workers compensation benefit coordinated with other collateral benefits?

 

Steven E. Brown: Well, you can not receive a wage laws benefits from both the disability retirement or regular retirement programs and workers compensation. However, if you’re getting a schedule award for permanent partial loss of use of let’s say an arm or a leg or eyesight or something, you can receive those at the same time as you’re getting disability or regular retirement benefits.

 

Alan Pierce: We talked a little bit about death benefits, if the death is related to the injury, the surviving spouse and or dependent children collect benefits. Is there a formula for that?

 

Steven E. Brown: Correct, my memory serves me as 45% of wages for the spouse and an additional 5% for each dependant up to a maximum of 75%. That’s just off the top of my head though, I’m not sure.

 

Alan Pierce: Is there a mechanism for closing out or settling a federal workers compensation claim?

 

Steven E. Brown: There is not.

 

Alan Pierce: Is there, for example, even on a contested case so that where the examiner feels the injury isn’t related or it’s a novel injury or a novel diagnosis – it’s either all or nothing?

 

Steven E. Brown: It’s all or nothing. You either prove it or you don’t prove it. Which is the reason why people get lawyers, really, because sometimes it’s hard to prove these things.

 

Alan Pierce: Let’s talk about why people get lawyers. When a claim is denied and somebody comes to you for legal help in processing that claim, you go to a hearing process electronically or telephonically?

 

Steven E. Brown: You can, there are several ways. We don’t always request a hearing because sometimes live testimonies are not really that necessary and there’s a delay inherent in requesting a hearing – usually about six or seven months before the hearing takes place. So we often file what’s a called a request for reconsideration or a request for review of the written record – those are other forms of appeal. Finally, if you’ve submitted all the evidence that you want in the case and you still have lost the case, then you can appeal to the Employees Compensation Appeals Board; and they’re the final legal authorities in these cases.

 

Alan Pierce: And they’re in Washington?

 

Steven E. Brown: They are.

 

Alan Pierce: oral arguments or by submission or either?

 

Steven E. Brown: Or either, we’re pushing them right now to establish a way of doing telephonic or video because we think it’s really unfair for people in the western United States, for example, not to get an oral argument when they can’t fly all the way to D.C. or send their lawyer there.

 

Alan Pierce: And is the ECAB the final word, or can you get into the civil courts?

 

Steven E. Brown: You can not, there’s no judicial review of these cases.

 

Alan Pierce: Well we’re going to take a deviation from our discussion to talk about something we do here on Workers Comp Matters called Case of the Day. It’s where I put you on the spot and as an expert in workers comp by describing an interesting case that has taken place around the country and if you can predict or guess how the case turned out, keeping in mind that it could turn out much differently under the federal system or in Massachusetts. So the case I’m going to ask you about-

 

Steven E. Brown: Wait a minute, could I call a friend?

 

Alan Pierce: You could call a friend, yeah. You’ve got a help button and you can call a friend. Instead of Case of the Day, we should call this the Quesadilla of the Day, this case involves a quesadilla. And it is the case of Bernard Vs. Carlson Company TGIF, and T.G.I.F. stands for thank god it’s Friday, it’s the restaurant.

 

Steven E. Brown: Thank god it’s Friday, I believe.

 

Alan Pierce: And poor Mr. Bernard was a waiter for TGI Friday’s and as the custom in his restaurant, before the shift would start, the waiters were allowed – they weren’t required – to taste some of the food. And the evidence was that the waiters would taste the food for the purposes of being able to better sell the food and describe the food to customers who might ask about it. And on this particular day, Mr. Bernard was tasting a quesadilla when it went down the wrong way and he choked. And as a result of choking, there was a medical consequence and he was actually quite severely injured. He brought a workers compensation claim because his argument was that he was in the course and scope of his employment. And the case was denied by the workers compensation claims official at the initial level, and was appealed to the Virginia court of appeals. There is no divided opinion, can you tell us how you think the case went, or the quesadilla went?

 

Steven E. Brown: Well I can tell you how the quesadilla should have gone, in my opinion. I think he was in the course and scope of his employment because it sounds as if the employer gained an advantage or benefit from these waiters tasting this food. You said that they were doing it in order to better sell the food. So there was a benefit to the employer and remember that workers comp is no fault. So even though it’s nobody’s fault that it went down the wrong way, I think he should be fully covered under the normal workers comp principles, and that would be the same for federal employee too.

 

Alan Pierce: Well, you really hit the nail on the head as far as the dissenting opinion is concerned. And you begin your analysis quite correctly. There is a two-pronged test of whether something arises in the course of employment, which is during the hours that you’re working, and whether it arises out of the incident of employment. And I agree with you. I think on these facts, both of those prongs were met. What doomed this case – and I’m not sure if it went up beyond this appellate court – but what doomed this case is that the common law for Virginia has what’s known as an actual risk doctrine, which is a little more restrictive than just the furtherance of the employer’s interest. And in an actual risk doctrine, compensation is available only if there was something unusual, or abnormal about the particular item – for example a piece of food. If he had bitten on a seed, or there was a piece of glass in the food, that would have been covered. But if this was something that he ate, that he could have eaten as a customer, eaten at home, that at least the majority of the appellate court felt this did not fit within the very narrow confines of the actual risk doctrine. But I would agree with you, probably both in terms of common sense and in terms of the facts of this case. The mere fact that he was benefiting his employer by being able to describe the food should have been enough. And frankly, the dissenting opinions seem, to me, even though I’m a claimant lawyer, to make eminently more sense. So having said that, is there anything you’d like to maybe close with in terms of what’s happening? Any interesting developments under the federal workers comp laws on procedure and practice?

 

Steven E. Brown: Well I would say that the benefits under this law are not unusual but they seem to be under attack from certain members of Congress and the Senate. And I think it’s partially due to the financial meltdown that we’ve had in the last few years, and partially due to perhaps the composition of the legislatures. Every bill that comes to Congress has to be revenue-neutral. So you can’t increase benefits, you can reduce them. And there’s a push to reduce some of these benefits. WILAG has been opposing these because we don’t feel that the injured worker should suffer in that way, nor should his family suffer because he had an injury that was not his fault. And even if it was his fault, it’s covered by workers comp, it’s a no fault system.

 

Alan Pierce: And I guess the last question is, and of course, we are lawyers, we do this for a living: how do you get paid? You don’t settle cases, you don’t get a fee on a lump sum settlement; tell us how you’re compensated for your hard work.

 

Steven E. Brown: There are no liens for attorneys and you can’t charge a percentage, so we have to charge by the hour because it’s the only way we can do that.

 

Alan Pierce: Do they have to pay as you go or can they pay when they have the win of a successful award?

 

Steven E. Brown: We usually ask for – our office and most offices I think – ask for a deposit and then we monitor it and see how things are going. We do like to have some money in the trust account to pursue the case but there are many cases where we know the benefits are going to be paid soon and then we hold on.

 

Alan Pierce: Okay, well Steve, I want to thank you for joining us today on Workers Comp Matters. I know that we probably scratched the service. I’m sure the federal government is dealing with the same issues that the state programs are dealing with in terms of chronic pain and medication and soaring medical costs and the whole panoply of integration with other types of sources of benefits. So I want to thank you.

 

Steven E. Brown: Thank you.

 

Alan Pierce:  And if somebody needs to contact you, how do they find you?

 

Steven E. Brown: Just call us at (805) 496-9777, we handle cases all over the country.

 

Alan Pierce: Steve, thank you very much for joining us on Workers Comp Matters. This is Alan Pierce and until the next show, go out and make it a day that matters.
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