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IMPORTANT: NBPC members must complete, sign, and mail the below consent-retainer form to Woodley & McGillivary at the address below in order to participate with the lawsuit to recover pay for uncompensated work:

WOODLEY & MCGILLIVARY
1101 Vermont Ave., N.W.
Suite 1000
Washington, D.C. 20005

If you have been a canine handler throughout the period for which we are claiming damages, you do not have to join Abad as this case will cover all of your claims.

BPA and K9 Consent-Retainer

Letter from NBPC President Judd (this letter was included with the notice that was mailed to every NBPC member.) 

NOTE - if you did not receive the letter from the NBPC with the forms, your mailing address probably needs to be updated. To update your mailing address, visit the AFGE website, login as a member, and update your contact information.

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.

Recently OBP published a document on the intranet entitled "BPAPRA Frequently Asked Questions."  One of the answers given to one of the questions had to do with FEPA pay for canine agents on their days off.

The Agency stated that canine agents will receive one hour of BPAPRA pay for care of the dog on their regular work days.  This is to cover care of the dog regardless of when that care is performed.

The National Border Patrol Council strenuously disagrees with the Agency's interpreatation and will oppose it if it remains unchanged.  Nothing in this section of the law gave our attorneys, including prominent overtime pay attorneys, any concern that canine agents would not be paid fairly for off-duty care of the animals.

The NBPC will litigate this, if necessary, and we are confident we would prevail.  This issue is far from over.

On August 31, 2015, the U.S. Attorneys filed a motion in limine in the U.S. District Court for the District of Arizona. The motion is related to the criminal case against the defendants who are being charged with multiple offenses related to the murder of Border Patrol Agent Brian Terry.

Official Copy of the Motion

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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