Introductions. Welcome to FECA the Federal Employees Compensation Act

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1 1 Introductions Office of the Solicitor Federal Employees and Energy Workers Compensation SOL FEEWC We handle all FECA Subrogation Alexandra Tsiros Counsel for FECA Subrogation Paul Klingenberg Senior Attorney 2 Welcome to FECA the Federal Employees Compensation Act If a federal employee is injured at work, they are entitled to benefits under the Federal Employees Compensation Act or FECA. 5 U.S.C et seq. FECA pays medical benefits and wage benefits (disability, lost time, etc.) 3 1

2 Types of Claims Federal employees can have a traumatic injury (e.g., car accident) or an occupational disease (e.g. carpal tunnel syndrome). Traumatic injury is reported on a CA 1. Subrogation involves mainly traumatic injuries because those are the ones sometimes/often caused by a third party. 4 Types of Claims Federal employees also can have a occupational disease or illness (e.g., carpal tunnel syndrome). Occupational disease is reported on a CA 2 A CA 2 could have a subsequent traumatic injury somehow connected to the original injury (most often it is medical malpractice but sometimes an employee will get in a car accident on the way to a doctor s appointment, etc ) 5 What is Subrogation? Subrogation comes from Sections 8131 and 8132 of FECA. (5 U.S.C and 8132) In any case where a federal employee is injured by a third party in other words a person other than the United States they can bring a claim against that third party for damages (medical bills, lost wages, property damage, etc ) and get $$$$. 6 2

3 What is Subrogation? Under FECA, the United States takes over some of the rights to damages and, as a result, gets some of the money from the settlement in order to offset the cost of care under FECA. 7 THIRD PARTY REQUIREMENTS Under 8131, claimants are required to initiate a suit if a person other than the United States is legally liable for the workplace related injury. This requirement in certain limited circumstances can be waived. Under 8132, if there is a recovery ($$$$), claimants are required to reimburse the United States the appropriate amount. This requirement can never be waived. 8 What can an Agency do to help? Make sure claimants understand this obligation. Cooperate with OWCP and SOL when accident or investigation reports are requested. If you have an accident or investigation report, it is helpful to send it to OWCP, even if not requested. Cooperate with claimant s attorney for third party case attorneys may require accident information or may need to speak to Agency employees. This is up to the Agency, but cooperating will often lead to better results for the third party suit and more money credited to the Agency. 9 3

4 What can the Agency do? Keep the employees informed: SOL is not the employee s attorney nor do we handle cases for them. SOL will assist claimants regarding how to file insurance claims and give them necessary information. Claimants are not required to get an attorney; however, for larger or more complex cases, this is advised. Let them know there is a form to provide if they do receive money. 10 Our Terms Disbursements: Amount paid by OWCP. Consists of Medical and Wages Refund: Amount owed to the government as calculated on Statement of Recovery. Cannot be calculated until there is a recovery Statement of Recovery: Form required to calculate how much is owed to the United States. 11 Section 8132 Provides a Statutory Right of Reimbursement for the United States (once there is a recovery). Sets forth the formula for computing the statutory right of reimbursement due to the United States after a FECA beneficiary receives money or other property from a third party in satisfaction of the third party s liability to the beneficiary. Formula is basis for Statement of Recovery. 12 4

5 What kind of case is a third party case? 13 IDENTIFYING 3RD PARTY CASES Car Accident where a federal employee is injured or killed A plane crash or train accident Malfunctioning elevator Falls due to negligent building or property maintenance Dog bite Product liability (e.g., defective chair) Asbestos exposure 14 Car Accident THIRD PARTY IDENTIFICATION Here s what you might find where a federal employee is injured or killed such as being hit from behind or failure to yield the right of way or any other negligent act on the part of the other driver. Not third party if the fed employee was at fault. A plane crash or train accident if the pilot or the train operator is negligent or the plane or train malfunctions due to poor service or product liability, there is third party liability 15 5

6 THIRD PARTY IDENTIFICATION Malfunctioning elevator, examples: elevator has not been properly serviced and maintained does not stop evenly with the floor (employee trips) or suddenly drops several floors The manufacturer and/or the service/maintenance company may be held liable for the employee s injuries. 16 THIRD PARTY IDENTIFICATION Falls due to negligent building or property maintenance Liquid on the floor or carpet or tile not properly installed, there could be third party liability. Snow not cleared, steps not repaired, holes or hidden dangers in lawns could be third party liability. 17 THIRD PARTY IDENTIFICATION Product Liability (e.g., defective chair) If a federal employee sits in a chair and the chair breaks and the employee is injured, the chair may have been defective, and if so, there is third party liability. Medical Malpractice If the FECA beneficiary s injuries are made worse by medical malpractice, there can be third party liability. 18 6

7 THIRD PARTY IDENTIFICATION Special Case: Census Bureau Employees Census employees: Due to privacy considerations and at Census Bureau request, DOL does not require census workers to pursue certain third party claims. If the employee does pursue the third party claim and receives a recovery, the Government has a statutory right of reimbursement. 19 What Do We Do? Communicate with claimants and attorneys to ensure they are pursuing the third party. Communicate with them to get status updates on the case. Assist by answering questions and helping with Statements of Recovery (SOR). Approving SORs and processing checks. This ensures the Agency gets credit for any money collected ( charge back ). 20 Statute of Limitations Every state has a time limit on filing a thirdparty case. The employee s right to sue the third party is lost if suit is not timely filed. 21 7

8 Refund The Refund is calculated on the Statement of Recovery. The Refund is non negotiable once a recovery is accepted. We cannot approve repayment for any less than the Refund. 22 Settling for Less Unless permission in writing is given by OWCP or SOL, the beneficiary may not settle or dismiss a case for any amount less than the refundable disbursements as defined in 20 C.F.R See 20 CFR Statement of Recovery Approved OMB Forms CA 1108 and CA Use only the approved form, do not alter or modify an OMB cleared form. Why? Changing an OMB cleared form can have Paperwork Reduction Act consequences, and can adversely affect DOL s ability to get other forms cleared through OMB. 24 8

9 What can the Agency do? If an employee is pursuing their own claim, referring them to our office (SOL) is key. If the employee receives a recovery (with no attorney), they must complete a CA 1122 Short Form Statement of Recovery. If the employee has an attorney, they must use a CA 1108 Long Form Statement of Recovery. 25 What if the claimant has an attorney? We do not communicate with claimants directly if they have an attorney. You can. We will/can give them general information, but we must use the attorney for all details of the case. 26 Does the government get all $? The formula generally results in a considerable reduction in the amount to be refunded by the FECA beneficiary and/or credited against future FECA benefits. Claimant is entitled to retain twenty percent of the tort recovery after expenses of suit and reasonable attorney s fees are deducted. A portion of the recovery may be allocated for loss of consortium for the spouse and children of an injured employee (and/or wrongful death and survival, in a death case). COP is not included in determining amount of disbursements. 27 9

10 Releasing the Obligation to Pursue A beneficiary may make a written request to OWCP or SOL (preferably SOL) pursuant to 20 CFR to be released from Section 8131 s requirements that the beneficiary prosecute a claim against a third party. The beneficiary should include as much information as possible in the request. Have they tried to get an attorney? Was the injury so minor as to be a nuisance? Is the third party judgement proof (i.e., homeless, criminal, hit and run, no insurance, etc ) 28 Releasing the Obligation to Pursue The beneficiary will be provided written notice regarding the request. DOL will emphasize that this discharge extends only to the prosecution requirement of section If the beneficiary ever receives a recovery from a third party for that injury, the refund requirement imposed by section 8132 is still in effect. 29 Failure to Respond Claimant/Attorney must take action (including filing a lawsuit, if necessary) against a responsible third party to satisfy the requirements of 8131 and 8132 of the FECA Claimant/Attorney are also required to provide periodic status updates and other relevant information in response to OWCP or SOL requests. See 20 C.F.R Failure to respond to requests to initiate a third party action or for information may result in forfeiture of right to compensation, 20 C.F.R , or the right to compensation may be suspended

11 References FECA, 5 U.S.C et seq. 20 CFR Part 10 FECA Regulations (20 C.F.R ) Part 2, (FECA) Procedure Manual DOL Website has links for fillable Statements of Recovery: Short form CA pdf Long form CA pdf CONTACT INFO ALEXANDRA TSIROS, Esq. COUNSEL FOR SUBROGATION [email protected] PAUL KLINGENBERG, Esq. SENIOR ATTORNEY