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Federal Workers' Compensation

The Office of Workers' Compensation Programs administers four major disability compensation programs which provide wage replacement benefits, medical treatment, vocational rehabilitation and other benefits to certain workers or their dependents who experience work-related injury or occupational disease.

Here is a forum for members to share and exchange experiences regarding to workers' compensation related issues.


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djplourd  
#1 Posted : Monday, June 24, 2019 7:46:22 AM(UTC)
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This could be a long story but I'll try to keep it brief.

My wife was injured in a car accident 2 1/2+ years ago. She was outside running during her authorized physical fitness (3 hours a week) and wa***** by a car while crossing the street in a crosswalk. So far she has had two neck surgeries, a shoulder surgery, and recently had a cervical spinal cord simulator implanted. So far the simulator isn't helping much, so there's a possibility of a third neck surgery or we just call it quits and pursue DR.

OWCP has inquired about repayment because of the 3rd party liability. I filled out a draft Form CA-1108 but I was just guessing at the settlement amount.
Questions:
1. Line 4 - LOSS OF CONSORTIUM - In a non-death case or a death case where no cause of action for wrongful death is asserted, a reasonable allocation for a spouse’s loss of consortium will be up to 25% of Line 3. How does OWCP determine the %?

2. OWCP is asking to include travel payments and case nurses salaries in the repayment. Our lawyer is disputing those as administrative costs but what is acceptable for them to request repayment for?

3. Most of her medical care has been through Tricare and not DOL. Assuming the settlement includes the Tricare costs, how do we show that on the form? The first line asks for Gross Recovery (Entire Amount of the Award). If any Tricare costs are included in the repayment calculations, then our repayment would be larger than it should be.

It is unlikely that she will regain full use of her arm. When should we pursue the schedule award? Or Disability retirement? Both? Right now she's still be covered for lost wages (except for the last several months because DOL is disputing approval of her shoulder surgery). Currently she's scheduled to return to work in about a month, but for only 3 hours a day and her activities are so limited she really can't do much of anything.


Daniel
frankgonzalez  
#2 Posted : Monday, June 24, 2019 10:10:59 AM(UTC)
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Originally Posted by: djplourd Go to Quoted Post
This could be a long story but I'll try to keep it brief.

My wife was injured in a car accident 2 1/2+ years ago. She was outside running during her authorized physical fitness (3 hours a week) and wa***** by a car while crossing the street in a crosswalk. So far she has had two neck surgeries, a shoulder surgery, and recently had a cervical spinal cord simulator implanted. So far the simulator isn't helping much, so there's a possibility of a third neck surgery or we just call it quits and pursue DR.

OWCP has inquired about repayment because of the 3rd party liability. I filled out a draft Form CA-1108 but I was just guessing at the settlement amount.
Questions:
1. Line 4 - LOSS OF CONSORTIUM - In a non-death case or a death case where no cause of action for wrongful death is asserted, a reasonable allocation for a spouse’s loss of consortium will be up to 25% of Line 3. How does OWCP determine the %?

2. OWCP is asking to include travel payments and case nurses salaries in the repayment. Our lawyer is disputing those as administrative costs but what is acceptable for them to request repayment for?

3. Most of her medical care has been through Tricare and not DOL. Assuming the settlement includes the Tricare costs, how do we show that on the form? The first line asks for Gross Recovery (Entire Amount of the Award). If any Tricare costs are included in the repayment calculations, then our repayment would be larger than it should be.

It is unlikely that she will regain full use of her arm. When should we pursue the schedule award? Or Disability retirement? Both? Right now she's still be covered for lost wages (except for the last several months because DOL is disputing approval of her shoulder surgery). Currently she's scheduled to return to work in about a month, but for only 3 hours a day and her activities are so limited she really can't do much of anything.


Daniel
Also remember Tricare will want part of any settlement you get form the driver with regard to medical payments...so you will need to factor that in as well.
You should have voted Cthulu...the greatest of all Evils
djplourd  
#3 Posted : Monday, June 24, 2019 11:55:29 AM(UTC)
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Originally Posted by: frankgonzalez Go to Quoted Post
Also remember Tricare will want part of any settlement you get form the driver with regard to medical payments...so you will need to factor that in as well.


The last time we checked with our lawyer Tricare still hasn't responded with their medical bills. There's no way the settlement will be large enough to cover all the Tricare bills. Each of the neck surgeries were $200K+. Somebody's coming up short between DOL, Tricare and us, but I'm not paying any shortage out of my pocket.

Let's say the total cost is $750,000 for medical and wages, but the settlement is only for $100,000 because that was the limit of the drivers insurance coverage. Of course we'd sue for at least the remaining $650,000 (which didn't even include pain and suffering). Who gets what $ out of the $100,000? And if we get a judgement against the driver for the difference, does a percentage go to DOL and Tricare? And teh lawyers get their cut as well.

The wages covered from DOL have already been more than $50,000, plus roughly $20,000 in medical and admin costs.
frankgonzalez  
#4 Posted : Tuesday, June 25, 2019 10:28:33 AM(UTC)
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You need to break out everything. You can't say "Wages and medical" cost $750K, so who gets how much?" Tricare isn't going to care about the amount for lost wages. They are solely concerned about the medical costs. DoL may be concerned about some medical costs (if they paid out anything in that realm), but are concerned about lost wages.

So who wants what will depend on how much was spent on what by each one. I'd call the local Tricare office to find out what they will be coming for, then call DoL and try to find someone who can answer the same question on their end.
You should have voted Cthulu...the greatest of all Evils
jesse slade  
#5 Posted : Tuesday, June 25, 2019 11:43:00 AM(UTC)

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With OWCP and a third party claim where the OWCP medical and compensation are significant, the settlement is often lower than the amount already paid by OWCP.

OWCP allows a claimant to keep a minimum of 20% of the settlement. Even if the costs already paid are less than the settlement, OWCP keeps the unused portion to apply toward the costs of the claim. If the claim is closed, all benefits are paid, and there's an excess of the settlement, that excess is returned to the claimant.

You should not be completing the statement of recovery if no settlement has been made. Instead, update OWCP of the progress of the case, i.e., by telling them it has not yet been settled. When settlement is expected (if known), the progress, etc...

If you complete the statement of recovery, you're telling OWCP recovery has been made and they'll expect their money. This is why you can't complete it accurately, because there has been no recovery.

You can guess all you want about what the settlement might be, you can notify OWCP of what you're guessing the settlement might be and you could be completely wrong. So best to not guess because you have no idea what the actual settlement is going to be.

Loss of consortium isn't automatically awarded. This would be part of the lawsuit. If loss of consortium is awarded to you, the amount awarded is usually based on your state's laws for loss of consortium. But you may not receive loss of consortium.

If her claim was accepted as work-related, the providers should have been billing OWCP not Tricare. If this is still occurring, every provider should be instructed to bill only OWCP for anything related to her accepted claim.

You cannot apply for a schedule award until she reaches Maximum Medical Improvement, (MMI). If she requires surgery, she has not reached MMI.
djplourd  
#6 Posted : Saturday, August 3, 2019 5:07:48 AM(UTC)
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Update: we met with our lawyer again this week.

The limiting factor for the settlement amount is the greater of the plaintiff's insurance limits or our own $300K underinsured motorist coverage. Our lawyer just recently formally requested the specifics of the plaintiff's insurance coverage. This would include an umbrella policy if she has one. Best case scenario for us is that she has a large umbrella policy.

So far Tricare has only requested a fraction of their cost to be reimbursed.

My wife will be going back to work in a couple of weeks, but only for 3 hours a day and not back to her original position. However, she has so many limitations there's not a lot that she can do. She has Occupational Therapy until September, after which she should be at MMI and we'll pursue DR and a Schedule Award.

edalder  
#7 Posted : Monday, August 12, 2019 1:55:07 PM(UTC)

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Don't be surprised if TriCare does not go to OWCP and ask to be fully reimbursed for its medical costs. Usually, workers' compensation is primary (to use insurance lingo) in this situation and should be paying. Have you told Tricare that there is an OWCP case?

The loss of consortium question is tricky, but OWCP has dealt with it in the past and DOL's Office of the Solicitor (DOL's legal beagles/attorneys) does have a policy regarding it. I don't remember the specifics, but because the loss of consortium part is actually considered "your compensation", not your spouse's compensation, you likely will get to keep some of it, separate from that 20% that I will mention below..

Generally, your wife does get to keep 20% of the recovery, regardless. The rest, after the loss of consortium figure/attorney fee, is subject to an OWCP lien.

For the legal fees, your spouse's actual reimbursement to OWCP will be reduced somewhat because of the attorney fees. My example is a bit oversimplified. But, let's say that you sue and are awarded (and recover) $1,000,000. The attorney fee is 1/3rd of the recover or $333,000. After your wife's 20% and the loss of consortium figure, you get to deal with OWCP's lien. For the sake of argument, let's assume that OWCP lien if $700,000 ( I added in my guess on the Tricare medical costs being reimbursed by OWCP to Tricare). In this particular example, between the attorney fee, the 20% that is your wife's regardless and the loss of consortium figure, the OWCP lien will likely consume whatever is left over. However, the $700,000 lien (or whatever the actual figure is )will be reduced by 1/3 to help your wife defray the cost of the attorney fee. Th actual lien is $700,000 in my example , but if you actually still have that much left over, your wife would pay 2/3rds of $700,000 or roughly $462,00 to OWCP. If the amount subject to the lien is only $500,000, then the actually reimbursement to OWCP would be considerably less.

Reality check. Suing someone and getting a judgment is one thing. Actually collecting on a judgment is a horse of a very different color. Moreover, you will have to deal with the fine print, but sometimes, if you accept an insurance company's settlement, you may give up your right sue the other party. This one can be somewhat state specific. Be sure you both fully understand what your attorney is telling you to avoid unpleasant surprises.

If your recovery does not completely absorb OWCP's actual costs, OWCP "eats" what was not recovered.
Kivi
djplourd  
#8 Posted : Monday, August 12, 2019 3:10:29 PM(UTC)
djplourd

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I read somewhere that Virginia does not allow claims for loss of consortium, so that's probably out. I did also see that allowing it has been brought up, but I couldn't find anything saying it was ever passed. Too bad, as it certainly would increase our take. Plus, the percentage for loss of consortium is also taken off the attorney's fee.

Assuming the judgement equals our $300k underinsured motorist coverage, no loss of consortium and 1/3 attorney fees (plus $5k in other attorney costs), it looks like we would net $39,020 (20% of $300k minus attorney fees/costs. After the refund to pay back OWCP, there would be roughly $100k left as Credit Against Future Benefits.
edalder  
#9 Posted : Friday, August 23, 2019 3:05:10 PM(UTC)

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Your spouse can draw disability retirement benefits from OPM, if eligible, while waiting for any third party credit to be exhausted. For example, if her weekly compensation is $1000 a week and $100k is the credit, then it is going to take 100 weeks or close to two years before she is again able to receive OWCP wage loss benefits.
Kivi
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