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Do you have to work with an OWCP or CBP Nurse, if you are injured on the job and have an OWCP claim?

Recent actions by CBP nurses, in Injured Employees DOL OWCP cases, have come into question.

Many injured employees may find a contracted nursing service heavily involved in their workers' compensation claim. Injured workers often have questions about the scope and roles of the contracted nurses. Below you will find a description and discussion of the two types of nurses that may be assigned to a claim, OWCP contracted nurses, and employing agency contracted nurses. Each has their own unique role in the return to work effort.

The NBPC has been made aware that injured employees may have been improperly paid for absences under the Federal Employees' Compensation Act (FECA). If you received payment due to work injury related absences, change of position due to the injury, or a scheduled award, you may have been paid improperly. In cases seen so far, payments failed to properly calculate shift and other premiums including night differential, Sunday pay, Sunday night differential, Holiday pay and AUO/BPAPRA. This could be a substantial amount of unpaid money due to injured employees. Lost wages can be claimed even if you are retired, separated from Service, or have changed positions. There is no time limit to request correction and payment of lost wages.

If you are a bargaining unit member and believe that you have been paid improperly under the FECA for any amount of compensable time, please contact Jonathan Perkins (This email address is being protected from spambots. You need JavaScript enabled to view it.). In your email, you must provide:

• OWCP case number
• Date of injury
• Date of birth
• PDF of Earnings and Leave Statements from the date of injury back 12 months
• Dates/time missed from work due to the injury
• if you have your pay stubs from DOL OWCP that would be beneficial as well).

Upon review, if it is determined that you were paid improperly, step by step instructions and a template memo can be provided to support your claim.

Below is a list of the most frequently asked questions encountered throughout numerous federal workers’ compensation trainings, individual case representation, and inquiries made to the National Border Patrol Council (NBPC). This FAQ was created in coordination with InjuredFed.com LLC.

Filing a Workers’ Compensation Claim

Should I file a CA­1, Notice of Traumatic Injury, or a CA­2, Notice of Occupational Illness or Disease?

It is important that injured workers filed the correct claim form at the beginning of their claim. Each type of claim has its own benefits associated with it. Often claims are filed incorrectly, as there is a fundamental misunderstanding about why an injured worker would file one over the other. Do not focus on the medical condition. A torn rotator cuff could be a traumatic injury if it occurred due to lifting a heavy box. It could also be an occupational illness if it occurred due to lifting a series of heavy boxes over several days. Thus the difference is not the medical condition, but rather how and when it happened. If it happened during one shift, you should file form CA­1, Notice of Traumatic Injury. If it happened during two or more shifts, you should file form CA­2, Notice of Occupational Illness or Disease.

My supervisor has ordered/told me to file a CA­2 when I know its a CA­1. What can I do?

The decision to file a traumatic injury claim versus an occupational illness claim is solely up to the injured worker. The agency support staff should provide injured workers with counseling about which claim may be best for them, but the final decision about which type of claim to file rests with the injured worker. Agencies cannot compel an injured worker to file, refuse to file, delay, or unduly influence the filing of a claim.

My supervisor has ordered/told me to file a recurrence claim when I know it is a new injury. What can I do?

The decision to file a recurrence claim, using form CA­2a, Notice of Recurrence, is solely up to the injured worker. A recurrence claim should only be filed if the injured worker already has an accepted workers’ compensation claim. The injured worker should carefully review the circumstances of the recurrence to ensure that the facts and medical evidence clearly and objectively shows that they have, “an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without an intervening injury or new exposure to the work environment that caused the illness.” The agency support staff should provide injured workers with counseling about which claim may be best for them, but the final decision about which type of claim to file rests with the injured worker. Agencies cannot compel an injured worker to file, refuse to file, delay, or unduly influence the filing of a claim.

What should I do if I am exposed to someone with an infectious disease (e.g. tuberculosis, HIV, hepatitis, etc.)?

You should immediately seek preventative treatment. Many infectious diseases can be prevented if treated at the time of exposure. However, if you did not experience a traumatic injury in conjunction with the exposure, such as a needle stick or laceration, you would not be eligible for preventative treatment related to the exposure.

How long does my supervisor/Agency have to file my claim forms (CA­1, CA­2, CA­2a, etc.)?

Initial claims forms, such as the CA-1, Notice of traumatic injury, and the CA-2, Notice of Occupational Illness, must be filed with OWCP ten (10) days after they are submitted by the injured worker. Claims for on-going compensation, such as the CA-7, Claim for Compensation, must be filed with OWCP five (5) days after they are submitted by the injured worker. Injured workers should always ask for completed copies from the employing agency after they have been submitted to OWCP to confirm submission and check for accuracy. Agencies cannot compel an injured worker to file, refuse to file, delay, or unduly influence the filing of a claim.

Obtaining Medical Treatment

How do I find a physician who will treat me for my injury/illness? 

The Office of Workers’ Compensation Programs (OWCP) has an online search engine for finding FECA Providers. The search engine allows you to search by provider type (rehabilitation, physician, dentist, pharmacy, etc.), specialty (cardiology, psychology, orthopedic surgery, etc.), as well as zip code. Your Federal Employees’ Health Benefit (FEHB) plan is not obligated to pay for treatment that would be covered by federal workers’ compensation.

What if my physician is not enrolled with OWCP?

If your physician is not enrolled to be a provider under FECA, they can enroll by completing form OWCP­1168, Provider Enrollment Form. It is important to note that OWCP will not pay a provider for services covered under workers’ compensation until they become an enrolled provider, a process that may experience delays and result in out of pocket expenses.

What if I cannot find a physician near my workplace or residence?

If you cannot find a physician within 100 miles round trip from your workplace or residence, you have two options. If you can find a physician who is willing to treat you, and is willing to enroll to become a workers’ compensation provider, they can enroll online. Following enrollment, they will be listed in the Office of Workers’ Compensation Programs’ (OWCP) online search engine. If you cannot find a physician in your area willing to enroll, nor a physician who is currently enrolled, you can request pre­authorization from OWCP to see a physician outside of your commuting area.

Can my supervisor contact my physician(s)?

The agency may monitor the injured worker's medical progress/return to work status by obtaining periodic medical reports at reasonable intervals. The injured worker is responsible for providing these updates. Form CA­17, Duty Status Report, is used by injured workers to advise their Agency of their medical status. To clarify any return to work questions, the Agency may also contact the injured worker’s physician in writing concerning the work restrictions due to the injury. The Agency must send a copy of this letter to the injured worker and OWCP at the time it is sent to the physician. The Agency must also provide the injured worker as well as a copy of the physician's response when received. No one from the Agency can contact the physician by telephone or in person.

My physician said that I need surgery, how do I proceed?

In traumatic injury cases where a CA­16, Authorization for Examination or Treatment was issued, emergency surgery is authorized using form CA­16. All non­emergency elective surgeries, meaning those not required to sustain life, require pre­authorization, which can be made electronically by the physician or using the General Medical/Surgical Authorization Request. Injured workers must also submit copies of medical documentation supporting the need for surgery including all tests results, examination findings, x-rays, MRIs and other objective evidence to support their physician’s request. It is recommended that injured workers obtain and submit copies of all treatment notes and test results electronically via ECOMP.

The agency wants me to submit all medical documentation to them, however, I feel that they are stalling or failing to submit my paperwork timely. I also have privacy concerns. Can I bypass the agency and just send or upload all of the paperwork to OWCP?

Prima facie medical evidence must be initially submitted to the agency when a traumatic injury claim is filed. Prima facie medical evidence must also be provided to an injured worker’s supervisor within ten (10) workdays of a request for Continuation of Pay (COP). It is the responsibility of the injured worker to submit a detailed medical report to OWCP following all appointments and treatments. Form CA­20, Attending Physician’s Report, can be used for this purpose. Injured workers must also submit copies of all supporting test results, examination findings, x-rays, MRIs and other objective evidence to support their physician’s findings. It is recommended that injured workers obtain and submit copies of all treatment notes and test results electronically via ECOMP.

What forms and documentation are required for me to submit to the Agency for an OWCP claim?

Injured workers must submit the following forms through the agency:

Forms not listed below should be submitted directly to OWCP by mail or electronically via ECOMP:

If the agency needs a copy of the completed forms CA­16, CA­17, CA­20, any other narrative medical report, or test results, they can request a copy from OWCP, after identifying their need for such information.

Continuation of Pay, Lost Wages, and Expenses

How are my pay and benefits affected while receiving Continuation of Pay (COP)?

Continuation of Pay (COP) is paid as regular wages by the employing agency.

Therefore, health and life insurance deductions, retirement and Thrift Savings Plan (TSP) contributions, payment of all included shift premiums, union dues deductions, and all applicable taxes and garnishments continue as they would for an injured worker’s regular paycheck.

How long does my supervisor/Agency have to file my CA­7, Claim for Compensation?

Claims for on­going compensation, such as the CA­7, Claim for Compensation, must be filed with OWCP five (5) workdays after the injured worker submits them. Injured workers should always ask for completed copies from the employing agency after they have been submitted to OWCP to confirm submission and check for accuracy. To ensure that your agency has submitted the forms to OWCP, and to monitor payment status, injured workers can use the Claimant Query System.

What is prima facie medical evidence and when do I have to submit it to my supervisor/agency?

When filing a traumatic injury claim, an employee must submit prima facie medical evidence of their injury. Prima facie medical evidence is defined “ as medical evidence showing that the employee is disabled for the job held at the time of the injury because of an employment injury.” Generally, this includes a statement of the diagnosed medical condition, that the injury was work related and the date of injury, and whether the injured worker can return to work, and what work restrictions are in place, if any. Prima facie evidence does not require detailed medical information including personal and family medical history, test results, examination findings, medications, etc. Detailed medical information such as this must be submitted to OWCP, but not to the agency. The agency can request a copy from OWCP, after identifying their need for such information.

Prima facie medical evidence must also be provided to an injured worker’s supervisor within ten (10) workdays of a request for Continuation of Pay (COP). Prima facie medical evidence in support of COP should include a statement of the diagnosed medical condition, that the injury was work related and the date of injury, and whether the injured worker can return to work, and what work restrictions are in place, if any.

What premiums should be included in my disability payments?

There are many types of shift premiums that should be included in the calculation of disability payments and Continuation of Pay (COP). Examples of premiums that are included are: Night Differential; Sunday Premium; Holiday Pay; and/or Administratively Uncontrollable Overtime (AUO). A full list can be found HERE. To calculate your weekly pay rate, for the purposes of disability payments or Continuation of Pay (COP), an average of the weekly pay for the previous 12 months preceding the injury or illness should be calculated, including all of the pay elements. Employing agencies should list all applicable premiums in Section 8, when they submit form CA­7, Claim for Compensation.

I have returned to work with restrictions, and I still have follow up medical and physical therapy appointments. Do I take COP, LWOP, Sick or Annual Leave to attend these appointments?

If you filed a traumatic injury claim, and your absences are within 45 days from the date of injury, you may be eligible for Continuation of Pay (COP). If it has been more than 45 days from your date of injury, or you filed an occupational illness claim, you have the option to use Sick or Annual Leave to attend your appointments. Leave without Pay is granted at the discretion of the employing agency. You may be eligible to repurchase any Sick or Annual Leave with the majority of the cost covered under your workers’ compensation benefits.

Can my supervisor/agency instruct me to take a certain type of leave while I am still eligible for Continuation of Pay?

No. The supervisor must advise the injured worker of their right to elect between Continuation of Pay, Sick Leave or Annual Leave. If an injured worker was instructed to take Sick or Annual Leave; during a period of time when they would have been eligible for Continuation of Pay, they have the right to request the leave be converted to Continuation of Pay. Agencies cannot compel an injured worker to file, refuse to file, delay, or unduly influence the filing of a claim.

How are my pay and benefits affected while in a Leave Without Pay (LWOP) status?

While in a Leave Without Pay (LWOP) status due to a work related injury or illness, injured workers continue accrue service credit towards retirement. However, health and life insurance benefits must be transferred to OWCP to prevent cancellation due to unpaid premiums, which should be done by the employing agency. No retirement or Thrift Savings Plan (TSP) contributions are made. Injured workers do not accrue Sick or Annual Leave while in a Leave Without Pay (LWOP) status. While in a Leave Without Pay (LWOP) status, seniority is adjusted based on agency and union negotiated procedures; which for the NBPC is, “for a Work related Injury covered by OWCP, there is no break in service for an injured worker while on LWOP”.

Who covers my travel expenses and mileage? Is the mileage rate from home or work?

Reimbursement for mileage, up to 100 miles round trip, is automatically covered for all appointments and treatments related to your workers’ compensation claim. Travel beyond 100 miles round trip, overnight stays, and meals must be pre­approved by a Claims Examiner. Travel can originate from home or work, and ends once you return to your home or work, depending on your final destination. Claims for travel reimbursement are made using form OWCP­957, Medical Travel Refund Request.

Returning to Work

How should I keep my supervisor up to date regarding my medical condition?

Injured workers’ are required to provide periodic updates to their agency regarding their ability to return to work. Form CA­17, Duty Status Report, or a written note from the physician containing all of the same information, should be provided to the agency following appointments and whenever there is a change in work status. A copy of the updated work status must be sent to OWCP either by mail or electronically via ECOMP.

How should I keep my Claims Examiner up to date regarding my medical condition?

It is the responsibility of the injured worker, not the physician or employing agency, to submit all medical documentation, treatment notes, and all diagnostic testing results to OWCP in support of any claim for medical or compensation benefits. All medical reports must meet the standard required by OWCP. This information can be submitted directly to OWCP by mail  or electronically via ECOMP

How do I know if a job offer is adequate?

Job offers can initially be made verbally in person or over the phone. However, they must be followed up in writing within two business days. A copy of the written job offer must be sent to OWCP. The injured worker should forward a copy of this job offer to their physician for review, to determine if they are medically able to perform the work described.

A written job offer must include the following to be deemed suitable by OWCP:

  • A description of the duties to be performed;
  • The specific physical requirements of the position and any special demands of the workload or unusual working conditions;
  • The organizational and geographical location of the job;
  • The date on which the job will first be available;
  • The claimant's work schedule (including telework);
  • Pay rate (salary) information; and
  • The date by which a response to the job offer is required.

I have been injured and released to return to work with restrictions. My physician has said that I need an ergonomic chair while sitting. Is the Agency required to provide an ergonomic chair?

The agency is not required under FECA to provide an ergonomic chair, though the Claims Examiner may intervene with the agency to advise that the failure to provide the chair would make any job offer unsuitable, as it would not comply with the medical restrictions. Alternatively, a request for an ergonomic chair as a Reasonable Accommodation under the Rehabilitation Act may require the agency to provide an ergonomic chair. This is determined on a case-by-case basis.

Long Term Workers’ Compensation Claims (One Year+)

I have been injured and off of work for over a year. The agency has verbally stated that they are going to start removal proceedings. What happens now?

In the event that you are still unable to work, and you are removed from the agency’s rolls, you will continue to receive OWCP disability benefits until you are able to resume work. Upon your release to return to work (with or without restrictions), you may be enrolled in a vocational rehabilitation program and assigned a vocational rehabilitation counselor. If you are able to obtain skills such as additional training and education to facilitate your return to the job market, you will have the opportunity to do so. Once you have successfully completed the vocational rehabilitation process, your disability payments will be reduced by either your actual wages (if you are able to obtain employment) or a constructed wage earning capacity.

NSC Safety+Health Magazine

Lawmakers seek to amend the federal workers’ compensation system. Can they strike a fair balance?

Kyle W. Morrison

July 25, 2015

The Federal Employees’ Compensation Act program, administered by the Office of Workers’ Compensation Programs, is the largest self-insured workers’ compensation system in the world – covering about 2.7 million workers. The program has not been significantly amended in more than 40 years. At a May 20 House hearing, lawmakers and stakeholders discussed how to modernize it and make the act more efficient, as well as improve its integrity.

FECA, enacted in 1916, provides benefits to federal employees and their survivors for disability or death stemming from a work-related injury or illness. In 2014, nearly $3 billion in benefits and medical costs were paid out.

During the hearing, which took place before the House Workforce Protections Subcommittee, Rep. Tim Walberg (R-MI) said some stakeholders have raised concerns that the program’s benefits are too generous and discourage injured workers from returning to work.

“Our challenge will be reforming the program in a way that will use taxpayer dollars more wisely, while ensuring the program continues to support those it was set up to assist,” said Walberg, who is the subcommittee chair.

Several witnesses and subcommittee members stressed the importance of a fundamental principle of the program: No worker should be worse off, nor better off, as a result of suffering an on-the-job injury. But those same stakeholders were divided over whether the proposed revisions would hurt injured workers and their families.

The proposal and controversy

The Department of Labor, which oversees OWCP, is seeking statutory amendments to revise three areas of FECA:

Enhance return-to-work and rehabilitation by addressing disincentives that adversely affect injured workers returning to the job.
Update benefit structures by creating a single rate for all new claims. Current recipients with dependents receive a higher rate than those with no dependents.
Modernize and improve the program by allowing easier data sharing among government agencies, and increase incentives for agencies that lower their injury and lost time rates.

OWCP Director Leonard Howie III said the proposal is well thought out and incorporates recommendations from the Government Accountability Office and the Department of Labor Office of Inspector General.

However, Rep. Frederica Wilson (D-FL), the subcommittee’s ranking member, claimed during the hearing that the proposal cuts benefits for injured workers and their families. Of particular concern to her is the proposal to create a universal benefit rate. Although beneficiaries with no dependents would receive more funds, injured workers with a spouse or children as dependents would receive less.

“This is not a family-friendly policy,” Wilson said. “We cannot make budget cuts on the backs of injured federal workers. We cannot make budget cuts on the backs of the widows.”

She summed up the proposal by alleging it mirrors benefit cuts that some states have undertaken in recent years, amounting to a “race to the bottom.”

Howie disagreed. Some state workers’ comp programs have elements that FECA hopes to never have, he said, including a cap on compensation amounts, limits to the duration of benefits paid and the ability to enter into settlements. “Our proposal is not even in the same ballpark,” Howie said, adding that the changes would not affect current program beneficiaries.

Another area of contention was benefits for injured workers at retirement age. Ron Watson, director of retired members at the National Association of Letter Carriers, said some FECA proposals to reduce wage-loss compensation at retirement age would result in injured employees receiving fewer benefits than if they worked a full career and collected a benefits package under the Federal Employees Retirement System.

Watson encouraged the subcommittee to pass reform legislation similar to what the House signed off on in 2011. That bipartisan bill (H.R. 2465) stalled in the Senate.

OT Lawsuit

If you are a border patrol agent who is a member of the NBPC union, click here for info to sign up for the overtime lawsuit.

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