Important Information on Federal Workers' Compensation

• Federal Workers' Compensation Modernization and Improvement Act
  
  
• AMA Guide 6th Edition
  
  
• Good news concerning National Reassessment Program
  
  
• Management Refusal to Grant Overtime to Injured Workers
  
  
• Alert: Third party claims involving Injured Federal Workers
  

FEDERAL WORKERS’ COMPENSATION

Federal Workers’ Compensation Modernization and Improvement Act (HR 2465)

 

This is a link to the PDF of the text of H.R.2465.RFS (the Library of Congress Thomas Bill Text Version Referred in Senate

I was a featured speaker at the Federal Workers’ compensation conference for Agency and Union personnel. Mr. Mitchell, HR Specialist for TSA, presented an excellent lecture on proposed changes in Federal Workers’ compensation benefits. While the changes are called “reforms”, as you can imagine, they are not claimant favorable. The changes have been approved by the House of Representatives and sent to the Senate. There are many objections to the proposed changes, and it is not clear what the new Senate will do with it. The new Senate will certainly be more sensitive to the injured worker. I think the President will also be more sensitive to the injured claimant.

The following are the main provisions of the bill:

1. All compensation for new claims will be paid at 70% of the claimant’s wage whether or not the claimant has any dependents. Currently, compensation for claimants with a dependent receive 75% and claimants without dependents receive 66 2/3%. The vast majority of Federal employees have at least one dependent. Therefore, most injured workers will receive less compensation under the proposal. Remember, the injured worker has already lost overtime, pension contributions, thrift savings, and step increases.

2. Schedule Awards will be paid at 70% of the pay rate for a GS 11 step3. Presently Schedule Awards are paid at either 75% or 66 2/3% of the average weekly wages plus cost of living if applicable. The effect of this proposed change will lower the payments to employees such as border patrol, drug enforcement, FBI, and most importantly to claimants with long term government employment. My guess is that the majority of claimants would receive less. Employees with dangerous jobs (i.e. carry weapons) usually are higher paid, are more severely injured, but would receive less in benefits.

3. If a retired employee receives a Schedule Award, then the claimant receives only receives only 50% of the GS 11 step3 rate. If a claimant waits until the claimant retires, then he loses 20% of the award under this proposal.

4. At age 62, Temporary Total compensation is reduced to 50%. This is true whether or not the claimant elects to receive his Social Security at age 62. Remember if you elect your Social Security early, you lose a significant portion of your benefit.

5. Death Benefits will be reduced by a new formula. However, they did throw the family a bone. Funeral expenses will be paid at $6000 rather than $800. There are relatively few death claims. Also, if anyone needs increase in benefits, it is the decedent’s family.

6. The claimant MUST agree to release all Social Security information.

7. The nurse case manager, will now be assigned early in the claims process. We all know the true purpose of the nurse case manager.

8. Physician Assistants and Nurse Practitioners can certify or refuse to certify COP which is Compensation for the first 45 days. I am of the opinion that it is very important for the doctor to control return to work and not less qualified individuals.

9. The proposed law requires a permanent election between Workers Compensation benefits and retirement benefits. Even if Workers’ Compensation cease, the claimant cannot change back to retirement benefits.

 

In my opinion, the proposed changes will in no way produce a more efficient OWCP agency. The proposed changes, will apply only to new claims, so the savings to the Agencies will not appear for a number of years

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AMA Guide 6th Edition

The Office of Workers' Compensation Programs (OWCP) now requires that all medical examinations comply with the AMA Guide 6th edition. Federal Workers' Compensation attorney Alan J Shapiro attended an intensive two day class to learn about the requirements of the AMA Guide 6th edition so that he could more effectively represent his Federal Workers' Compensation clients.

Information about the AMA (American Medical Association) Guides to the Evaluation of Permanent Impairment Sixth edition

Dear Clients,

My wife and I attended an intensive two day seminar (February 20 and 21 2011) in Tampa Florida. The seminar was presented by the American Board of Independent Medical Examiners (ABIME). The purpose of this course was training in and discussion about the AMA Guides to the Evaluation of Permanent Impairment 6^th Edition. There were approximately 100 doctors in attendance. I was the only practicing attorney. The focus of the seminar was to present practical information on how to perform high quality independent medical evaluations using the AMA Guides.

The course instructors were articulate, and well informed. The first day went from 7:30 AM to 6:00 PM. It was extremely intense. The second day's session was from 7:30 AM to 12 noon.

The Good News:

1. I have a much better understanding of the formula and the internal working of the AMA Guide 6^th Edition.
2. I met several physicians who are interested in performing 6^th Edition impairment evaluation exams.
3. I also met several physicians who are interested in providing causal relationship examinations.

We are hoping that the location of these physicians will make it more convenient for our clients to secure quality impairment exams.

The bad news:

a) The "Guide System" is not a "guide". It is a mandatory edict. The AMA Guide to Impairment Evaluation 6^th Edition severely retards the physician's ability to provide an experienced based estimate of physical damage.

b) A premise for the newest edition (6^th) is to "reflect the latest scientific research and evolving medical evidence". Research on the prior guides produced criticisms including "a failure to provide a comprehensive, valid, reliable, unbiased, and evidence-based rating system."

c) In my opinion, while the new 6th edition does result in greater inter-rater reliability, the impairment numbers produce results that do not adequately compensate the injured worker for damage done to his/her body..

d) OWCP says it is using "Guide 6^th edition" to produce uniform results. However, the "Guides 6^th edition" is designed to translate a work related injury into a quantified model for permanent impairment. The 6^th edition guide, which is revised to reflect current medical research, is still somewhat arbitrary, and thus can produce ridiculous results if the numerical value is not examined to see if it accurately reflects the reality of the scenario of a specific injured worker. This is a legal "straight jacket" because the FECA system accepts the AMA Guide 6^th edition impairment rating as the final rating, and not as the basis of a forensic investigative process.

Conclusion: The Guides to the Evaluation of Permanent Impairment Sixth edition were not designed to produce a mandated impairment rating. Rather, it was designed to be the basis for the application of scientific knowledge to legal problems.

As a result of the legal mandate to use the number obtained from a AMA Guide 6^th edition medical evaluation as the mandated impairment rating, the IME (Independent Medical Examiner) physicians have a huge influence on the outcome of the award. The medical community attempted to design a system that would be based upon the latest models of disablement and on the medical examiner's expertise to produce a reliable and valid numerical estimate for impairment.

Lastly, while I understand how to do the exams, my law license does not permit me to perform them, so we will have to continue to work with OWCP, BHR and ECAB and the physician community.

Sincerely yours,

Alan J Shapiro

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