Asking Congress To Make Our Laws More Fair To Injured Workers

US Capitol buildingDuring our trip to Washington D.C. last week, we spoke to elected officials about a few laws that impact injured workers. One of the laws is a proposed amendment to The Federal Employees’ Compensation Act (FECA), the law the provides medical benefits and wage replacement to injured Federal employees. It is the federal version of the otherwise state-based workers’ compensation system. The amendment is being proposed as part of S. 1789, the Postal Service Reform Act (PSRA).

We wanted to share some highlights of why the proposed changes are harmful to injured workers. The most damaging parts of the legislation are discussed below:

  1. Conversion of entitlement at retirement age 
    §302 of the bill would reduce the compensation rate to 50% of wages (for employees on total disability) and to 50% of wage-earning capacity loss (for employees receiving partial disability) once any of those employees have reached retirement age.This proposal would reduce by up to 1/3 (from 75% or 66-2/3% of wage loss to 50% of wage loss) the compensation for disabled employees who have reached retirement age. Given that many people (including members of the House and Senate and their staffs, all of whom are covered by FECA) work the traditional retirement age, this is unfair and raises issues of age discrimination. Reduction to 50% of wages is drastic, and it’s unclear why any reduction is necessary. A far better solution would be stepped-up enforcement of safety regulations, to prevent workplace accidents and drive down workers’ compensation costs that way.
  2. Disability Management Review / IME
    §307 of the bill would establish mandatory second opinion medical examinations six months after compensation begins. It would require subsequent second opinion examination every 3 years.Such provision is completely unnecessary, since the Office of Workers Compensation Programs(OWCP) already reviews medical reports from treating physicians. OWCP already requires medical reports on a more frequent basis than once every 3 years. To embed into law such a mandatory multitude of examinations would result in greatly increased costs, and unnecessarily increase the incidence of conflicts in medical opinion – which then must be resolved at OWCP expense. No other area of law discounts the opinions of treating physicians’ the way OWCP does in FECA claims, and this would make that problem worse. At a minimum, the poor quality and bias of second opinion examiners should be addressed before any increase in mandatory examinations is implemented.
  3. Augmented Compensation for Dependents
    §303 of the bill would eliminate the 8-1/3% increase in compensation for injured employees with dependents. The provision would take effect 3 years after enactment.While the desire for uniformity is understandable, there is no reason to simply pick the lesser amount and make that the standard amount of compensation on a “one size fits all” basis, especially given the economic hardship this would cause. Employees with dependents typically have higher living expenses to deal with, and the augmented compensation more fairly replaces their wage loss after an injury.
  4. Schedule Awards (SAs)
    §304 of the bill would set “an annual salary” based on an amount OWCP calculates by taking the aggregate amount of money awarded under FECA and averaging that amount across the number of awardees. It would allow the simultaneous receipt of a lump sum for a schedule award in addition to compensation payments on the later of these dates: the date on which either the employee’s compensation has been reduced to 50% (after reaching retirement age), or the date the employee has had his or her entitlement to augmented compensation terminated.This proposal would result dramatically lower awards for many federal employees. Today about 70% of FECA benefit recipients receive awards at the 75% rate. Schedule Awards would be dramatically lower for higher earners such as law enforcement, firefighters and others who receive LEAP pay – i.e. the very employees whose benefits we should most zealously be protecting. Moreover, when coupled with use of AMA Guides 6th Edition (which greatly reduces awards), this proposal creates a “double-whammy” against permanently disabled workers. The current maximum annual wages on which to compute schedule awards is $129,517 (GS-15 step 10). Nothing justifies the – nearly 60% reduction for higher-paid law enforcement and other public safety personnel that this provision would produce. No one segment of injured employees should suffer such a huge loss of benefits, especially when their injuries often result in life-altering permanent impairments due to the dangerous nature of their jobs.
  5. Vocational Rehab
    §305 of the bill would require an immediate start or a mandatory benefit reduction.Current law already provides for benefit forfeiture for non-cooperation with the vocational rehab process. Mandatory benefit reductions would result in unfair decisions where OWCP-hired vocational rehab counselors simply allege non-compliance.
  6. Disability Management Review/IME
    §307 of the bill would require mandatory second opinion medical examinations six months after compensation begins and would require subsequent second opinions exams every 3 years.This provision is completely unnecessary. OWCP already reviews medical reports from treating physicians and can send the injured worker for a second opinion exam whenever it feels one is needed. OWCP also requires medicals on a more frequent basis than once every 3 years. In no other area of law are treating physicians’ opinions discounted or ignored as much as in this program, and this change would make that problem worse. At minimum, the poor quality and bias of second opinion examiners must be addressed before anything like this is implemented.
  7. Election of Benefits
    §309 of the bill would prohibit switching between FERS/CSRS retirement benefits and FECA benefits for a period during which the employee was entitled to both FECA and retirement, or was paid retirement even though entitled to FECA.Disabled employees who have not reached retirement age need to be able to switch off FECA wage-loss benefits to disability retirement benefits temporarily (at any age) while eligible for FECA in order to receive both benefits at the same time. This proposed change would result in many employees simply never receiving these two benefits simultaneously for any of the limited time periods this is available to them. No matter what the FECA benefit is called, under this ill-advised proposal the employee would simply be unable to receive any FECA benefit while also in receipt of disability retirement benefits – a very substantial loss. Long-term disabilities make up only 2% of FECA recipients, so this change is not justified.
  8. Field nurses
    Finally, §310 of the bill would impose sanctions for noncooperation with field nurses.Injured workers absolutely do not need another person with authority to effectively terminate benefits. Already OWCP operates outside the scope of judicial review. OWCP would need to issue clear rules outlining what a nurse is and is not allowed to do in terms of interacting with doctors, to avoid interference with the doctor/patient relationship.

We hope you will call your Senator and ask them to to support the Akaka amendment to S. 1789, the 21st Century Postal Reform Act of 2011.

Prior results do not guarantee outcomes.

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