New FECA Regulations

(This article appeared in the March/April 2012 issue of The American Postal Worker magazine.)

Sue Carney, Director Human Relations Dept.

An exhaustive list of new regulations that change the administrative policies of the Federal Employees’ Compensation Act (FECA) went into effect on Aug. 29, 2011. These are the first revisions since 1999. Although these changes included some improvements, a disturbing percentage of the amendments can be characterized as anti-worker.

Prior to adoption of the new rules, the Department of Labor (DOL) received an unprecedented number of objections from 295 interested parties, including a detailed response from the APWU. Despite the mass opposition, OWCP implemented nearly all of its proposed changes intact, under the guise of modernization, improved efficiency and simplification. The DOL manufactured its usual tiresome explanations for discounting our concerns in the Final Rule, where DOL announced adoption of the changes.

OWCP Takes Aim at Postal Workers

The most alarming revisions appear to have been created to defeat wage loss compensation (WLC) claims filed by employees affected by the Postal Service’s National Reassessment Process. OWCP asserts it changed statute 20 CFR §10.5 (x), §10.509, § 10.510 to clarify that a compensable “Recurrence of Disability” is not experienced when a withdrawal of light duty work occurs. Under these provisions, OWCP also created new requirements that permit light-duty positions to serve as a basis for making lost wage earning capacity (LWEC) determinations. This is particularly troublesome because LWECs can leave injured workers destitute if they suffer a recurrence.

To make an LWEC determination, OWCP compares the wages earned in a return-to-work position (after 60 days) to the wages earned at the time of injury to determine if there was any loss in an employee’s ability to earn wages. The difference in earnings establishes how much wage loss compensation will be paid if the employee loses future time from work because of the injury. Under this premise alone, WLC would not generally be paid because the majority of injured employees who return to duty earn an income that is equal to or greater than their income at the time of injury. Fortunately, most workers were able to escape this fate because the former regulations stipulated LWECs could only be issued on “regular” positions available to the general market. Since the majority of limited duty and rehabilitation assignments consist of “odd lot” or makeshift work, WLC was usually paid.

The main change to the regulations specifies the position merely needs to be “classified” to form the basis of an LWEC determination. This action dismantles the most significant defense we had against LWECs. The amendment permits employers that withdraw medically suitable work to rid themselves of disabled workers while escaping major WLC charges that would have otherwise been billed to the agency.

OWCP Officials Fail to Meet Their Obligations

OWCP officials are employed to protect the interests of workers who are injured or become ill on the job, and are supposed to be responsible stewards ensuring the health and economic well being of those they are entrusted to serve.

The DOL officials responsible for these regulations and other anti-worker measures are defying their terms of employment to appease agencies and to proclaim savings. In a cowardly effort to shield themselves and their objectives, these officials claim the intent of the new regulations are misunderstood; and have misrepresented our concerns in the Final Rule. The DOL is flagrantly concealing the harm sustained by workers and their families by offering complex OWCP double-speak and half-truths to individuals who have the authority to stop them.

For those of us who understand the ramifications of DOL’s actions, their proclamations ring hollow. The APWU has united with other federal unions and attorneys to eliminate the destructive regulations. We stand committed to seeking the dismissal of DOL officials who fail to fulfill their obligations.

Additional significant rule changes will appear in the next edition of The American Postal Worker.