Federal Employees’ Compensation Act Due to COVID-19

Via DOL/Office of Workers’ Compensation Programs:

DOL has created new procedures to specifically address COVID-19 claims. Employees filing a claim for workers’ compensation coverage as a result of COVID-19 should file Form CA-1, Notice of Traumatic Injury through your employer using the Employees’ Compensation Operations & Management Portal. The new procedures will also call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus.

    • If a COVID-19 claim is filed by a person in high-risk employment, the Office of Workers’ Compensation Programs (OWCP) DFEC will accept that the exposure to COVID-19 was proximately caused by the nature of the employment. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.
    • If a COVID-19 claim is filed by a person whose position is not considered high-risk, OWCP DFEC will require the claimant to provide a factual statement and any available evidence concerning exposure. The employing agency will also be expected to provide OWCP DFEC with any information they have regarding the alleged exposure, and to indicate whether they are supporting or controverting the claim. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.

The key evidence needed for a COVID-19 FECA CLAIM as required by the law are the following:

Exposure – Federal employees who are required to interact with the public or front-line medical and public health personnel are considered to be in high-risk employment, thus triggering the application of Chapter 2-0805-6 of the FECA Procedure Manual. In such cases, there is an implicit recognition of a higher likelihood of infection; OWCP will confirm the nature of your employment based on your position title and after confirming with your employer that your position is indeed considered high risk. If your position has not been identified as a high-risk position, you will be asked to provide any evidence of the duration and length of your occupational exposure. This evidence may include information such as a description of job duties, which federal agency you worked for, and the location of the work. OWCP will ask your employing agency to provide information about occupational exposure including relevant agency records.

Medical – You will need to provide medical evidence establishing a diagnosis of COVID-19. You will also need to provide medical evidence establishing that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by your work-related activities. Please submit the results of any COVID-19 testing, if available. If you have encountered difficulty in obtaining such testing, OWCP will authorize such testing if you are working in high-risk employment or otherwise have a confirmed COVID-19 employment exposure.

Establishing causal relationship generally requires a qualified physician’s opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to your employment conditions. This opinion must be based on a complete factual and medical background.

For your health and safety as well as the health of those around you, consider an appointment with your physician by videoconference or teleconference. A medical report generated as the result of such an appointment is compensable as long as it is signed by a physician.

OWCP will also assist by asking your employing agency for any pertinent medical information in their records.

DOL: Division of Federal Employees’ Compensation (DFEC)


Wait, they want an employee to “prove causation” for a mystery illness?

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State Dept’s Bureau of Neglected Disease – Dengue+Encephalitis, What Help Is There?

— By Domani Spero

She joined the Foreign Service over 20 years ago.  Among her overseas postings were New Delhi, Damascus, Alexandria, Northern Iraq, and Beirut.  In 2009, she opened the new Consulate’s PD shop in Hyderabad.  In 2010, she contracted dengue fever. And encephalitis. She was medevaced to Singapore and spent 10 days at a hospital there.  That was not her only hospital confinement.

In the November 2013 issue of Foreign Service Journal, FSO Juliet Wurr writes:

“Over the next year, first in Hyderabad and then in Washington, D.C., I discovered and then struggled to cope with the repercussions of my illness. My doctor concluded that my now-unreliable memory, constant drowsiness and cognitive impairment were all the result of my encephalitis. I knew that my Foreign Service career had come to an end.”

The CDS describes Dengue (pronounced den’ gee) as a disease caused by any one of four closely related dengue viruses (DENV 1, DENV 2, DENV 3, or DENV 4). The viruses are transmitted to humans by the bite of an infected mosquito. The CDS says that with more than one-third of the world’s population living in areas at risk for transmission, dengue infection is a leading cause of illness and death in the tropics and subtropics. There are reportedly as many as 100 million people infected yearly.   In September this year, the NYT reported about India’s dengue problem.  In October, the Raw Story called it New Delhi’s “mysterious dengue fever epidemic.

Click on image to see an interactive Dengue map of the word.

Click on image to see an interactive Dengue map of the word.

Dengue is an endemic illness in India, the second-most populous country in the world.  Anecdotal reports suggest that the U.S. Embassy in Delhi has about half a dozen dengue cases among mission members this year alone. We’ve requested information on current mission-wide dengue cases and medevaced cases but have not heard anything back.

A separate report in the Indian Critical Care Medicine notes that “Encephalopathy is a very common neurological complication of dengue fever. Dengue encephalopathy is usually secondary to multisystem derangement like shock, hepatitis, coagulopathy, and concurrent bacterial infection.”  Encephalitis is the irritation and swelling of the brain that can be mild and short and results in full recovery. Or it can be severe with permanent impairment or death as a possibility.  For more on encephalitis, see the National Institute of Health.

In an email to this blog, Ms. Wurr writes:

“I think there is a huge gap in what State can do statutorily and what morally they should do.  If employees and the public realized this I think they would be outraged.  I want to do all I can to publicize because there are simple changes they can do that don’t depend on legislation.  I am retiring six years earlier than expected.  State refuses to advocate for me with Department of Labor Workers Comp.  I am receiving no compensation for my $500+ medical bills each month or for wages lost.”

Ms. Wurr said that she had been to the Office of Medical Services and the Bureau of Human Resources, who “were kind and welcoming, but eventually they admitted they had nothing to offer me.” She had also been to the Office of Casualty Assistance twice, and told this blog, “They said there was nothing they could do.”

She had filed a claim at the Labor Department’s Office of Workers’ Compensation Programs last year. It was denied. She had refiled that claim, it was denied for the second time. The reason for the denials, “I could not convince Labor that my illness was caused by being in India as an employee of the Department of State.”

She’s up for a third filing, and has now hired a lawyer.

If this story sounds familiar, it’s because it happened before.

Remember Frank Pressley who was wounded in the East Africa bombing and had filed for permanent disability? The  Office of Workers’ Compensation Programs and the State Department’s Office of Casualty Assistance (OCA) both made the news:

Compensation claims examiners questioned the precise percentage of Pressley’s handicap. Two non-government doctors administered tests and said the arm was 78 percent disabled, permanently. The Office of Workers’ Compensation Programs said it was only 40 percent disabled.

Hoping to minimize runarounds, he contacted Kendall B. Montgomery, director of the State Department’s Office of Casualty Assistance, which was established in 1999 in response to the embassy bombings.

“I get no assistance, no options, no real help,” he e-mailed last summer. “I’m afraid that nothing is going to happen unless I get a lawyer. That would be very sad for me. I trust the system, my country.”

“Frank, I understand — and share — your frustration,” Montgomery told him in a December e-mail. The federal workers’ compensation program “is just not meeting its obligations to you and many others. The system is broken, but there is no will to fix it.”

After The Washington Post inquired about the status of Pressley’s disability compensation, government officials including the State Department’s Office of Casualty Assistance suddenly got their Minute Maid:

The State Department’s Kendall Montgomery vowed she would push for “speedy approval” of medical treatments for injured employees mired in the federal compensation system.

“We’re putting a very high priority on it,” she told The Post while a public affairs official monitored her words. “We’re once again trying to start a new round of discussion between ourselves and the Department of Labor. . . . We do hope they’re fruitful discussions.” 

Soon after, the Department of Labor stopped disputing Mr. Pressley’s claim to a 78 percent disability in his left arm and paid up.

But whatever “fruitful discussions” the State Department conducted with the Department of Labor back in 2002, the result is clear.  We sent email inquiries to the Office of Casualty Assistance (OCA) and the Family Liaison Office (FLO) asking what type of assistance their offices provide to cases like Ms. Wurr’s in ensuring that sick/injured employees mired in the federal compensation system are not stuck there. We also wanted to know more information about the State Department and specifically OCA’s role in advocating for cases before DOL’s Office of Workers’ Compensation Programs.

Today, we received a one-sentence response to our email and a non-response to our questions from Kirk A. Leach, the director of the State Department’s Office of Casualty Assistance.

“The Department is fully supportive of Ms. Wurr’s case and is actively engaged in advocating her position with the Department of Labor’s Office of Worker’s Compensation.”

That’s the same office, who according to Ms. Wurr, gave this response: “They said there was nothing they could do.” After learning of  OCA’s response to our inquiry, Ms. Wurr was surprised.  If they are working on her behalf, she said, “they kept it secret from me.” LOL!

* * *

Have You Heard About These “Dramatic Changes” Coming to AFSA?

— By Domani Spero

Update below.  Scroll down to view comments from AFSA State VP Matthew Asada and AFSA Retiree Rep Edward Marks

FS employees join the American Foreign Service Association (AFSA) for many reasons, one of which is representation by AFSA legal counsel in EEO process or in criminal/administrative cases.  AFSA’s website strongly advised that “employees seek guidance and representation from AFSA or private counsel prior to agreeing to any interview and especially a voluntary interview.

We are hearing that “dramatic changes” are in the works without AFSA membership approval.  The changes reportedly will affect the nature of AFSA, potentially reduce services to members and potentially compromise the privacy of AFSA’s clients.

As we understand it, there are two possible contentious issues:

  • All new AFSA cases will now reportedly go through the State-VP who allegedly will “independently decide” whether or not they merit the attention of the AFSA lawyers.
  • Names of all AFSA clients will reportedly be added to an AFSA database of cases. The database we’re told will be maintained by the State VP.  The database will allegedly be accessible to two non-attorney staff members and all Board members.

These changes are reportedly intended to “improve AFSA’s service” and “more efficiently use AFSA’s resources” but have apparently already resulted in the resignation of AFSA’s most senior labor-management staff member.

In a letter to AFSA President Robert Silverman leaked to this blog, former State VP Daniel Hirsch expressed serious concerns about these reported changes, writing:

“For as long as I have been an AFSA member, AFSA members have had direct, initial access to AFSA’s attorneys and management specialists, who were the first, and usually the only, people in AFSA to hear the details of a member’s case. AFSA attorneys are legally bound by two sets of laws to maintain client confidentiality, and AFSA clients have routinely been told that no other party will learn the details of their case unless the client authorizes disclosure on a limited case by case basis to named individuals. This ensured in the past that every dues-paying member had access to the free legal advice paid for by their dues, and the right to receive that advice from a party who was objective, knowledgeable, and bound to protect their privacy.
[T]he idea of having a single, untrained individual serve as gatekeeper to AFSA services also has enormous potential for abuse.
The inclusion of names on AFSA’s client database is likewise a dramatic departure from past practice. When the database was created during my term, the issue of names was thoroughly discussed by AFSA’s attorneys and by AFSA’s membership staff. All agreed that the inclusion of names would compromise privacy, reduce client trust in AFSA, and serve no useful purpose. It was also noted that the Department’s staff does not include names in their similar databases (using instead case numbers assigned by staff members) and that the inclusion of PII in a database run over State Department computers, without appropriate approvals, is contrary to State Department policy.”

We’ve checked the AFSA website but there’s nothing there about these changes.  So we asked AFSA.  One AFSA Constituency Representative told us:

“No change – AFSA has a duty and a keen interest to represent all as the elected bargaining agent when the employee has been hit by Mgmt. […] But AFSA needs to examine the range and content of its grievance case load and try and figure out what the systemic problems are that are subjects of repeated grievances. We need to use that data to fix the system.  We are trying to fix the leaking pipes and not just keep emptying the buckets every day.  To do that we have to understand the case load and do analysis.  That requires data.”   

On August 29, 2013, we emailed State VP Matthew Asada with the following questions:

I heard that as AFSA’s State VP you will now decide whether or not new AFSA cases merit the attention of AFSA lawyers, is this true?  The AFSA client-lawyers are covered by confidentiality, where does that leave you? What is the rationale behind this change?

There’s also talk that names of all AFSA clients will be put in a database maintained by you and non-lawyer staff of AFSA. Can you understand why this could be troubling to the AFSA membership?

Can you confirm that these new policy changes has already resulted in the resignation of AFSA’s most senior labor-management staff member?

Will AFSA be sending out an ALDAC on these changes to inform its membership?

We did not get a direct response to our questions. We did get an email from Mr. Asada, a rejoiner response to the AFSA Constituency Representative’s email above on August 30:

“As  Tex [AFSA constituent rep] noted, there has been no change to our existing policies. All of us at AFSA are interested in ensuring that we are responsible custodians of AFSA’s resources and that we use those resources – entrusted to us by our members – to advance the overall interests of the Foreign Service and its 16,000 members (several of whom are avid Diplopundit readers).  We want our members to know how we are working on their behalf and communications is a key part of that (we recently brought on Kristen Fernekes as AFSA’s new Director of Communications).”

The response above, unfortunately, reminds us of a teevee talk show where guests often answer with a non-answer. So let’s add more questions, because why not?

  • When new clients have to see an AFSA Governing Board Member  who decides whether dues-paying members need to see AFSA’s lawyers or not, instead of having direct access to AFSA’s lawyers, isn’t that a departure from previous practice?  Doesn’t this constitute a change that the membership should be aware of?
  • Are AFSA Governing Board Members covered by client confidentiality?  If not, what kind of confidentiality agreement protects AFSA clients?
  • Since cases are available in a database accessible to over a dozen people, how safe is that data from accidental disclosure? What protection does AFSA employ to ensure protection from unauthorized disclosures?
  • What are the consequences for disclosure of this data?
  • Do AFSA members have an option to opt-out from the data collection?

We understand AFSA’s interest in learning from the data of its grievance case load but, wouldn’t it make more sense to look at cases resolved in … maybe the last five years, instead of new cases?

Let’s pause for a moment here and imagine this. Say I have a potential sexual harassment case against an official at the State Department or at AFSA.   I go see if I can get legal help from AFSA. Instead of speaking directly with an AFSA attorney, I have to see an AFSA Veep to make the case why I need legal representation. Before the AFSA Veep decides whether or not I need a lawyer, he/she would have to ask me questions about my sexual harassment case. That means details. Even if I get an AFSA lawyer, that still means the AFSA Veep knows the details of my case. They then put my name in an AFSA database. The database is accessible to about a dozen or so people. If/If somebody leaks my case (even accidentally) to the official identified as the other party in my case, who pays for breach of confidentiality?

See why that is disconcerting?

Finally, elections. Remember in the 2009 elections when there was such a hubbub about the use of an email list during that nasty campaign?  That election went all the way to the Department of Labor and DOL ordered a DOL-supervised AFSA election to avoid another food fight. (See AFSA Received Letter from DOL. 11 Days Ago…).

Yep, that’s one other reason why folks might get a bad feeling about a database.

We tracked down Daniel Hirsch, the immediate past State VP for AFSA who served two terms, for comments.  He sent us the following response:

As a former AFSA VP, I can’t imagine what is meant by “AFSA’s resources.” As AFSA VP I, like my predecessors, managed member resources, paid for by member dues, to ensure that they were available to dues-paying members when needed. Yes, there is more demand now on those resources, because there are more members. More members pay more dues, so AFSA can afford to accommodate the increased demand.That’s why, and how, AFSA hired an additional attorney and an additional legislative assistant last year. 

AFSA is not a for-profit organization, and it has nearly 4 million dollars, and growing, in reserve already. What is responsible about obliging members to violate their right to confidentiality in order to allow one official to decide whether to allow them access to the services they pay for? Does it increase the efficiency of an organization, whose purpose is to help its members, to save money by helping fewer members? On what basis will that decision be made? And what qualifies one official to make it alone? 

If you have an opinion or questions about this matter contact your AFSA Governing Board representatives. If AFSA releases a clarification about these changes or non-changes, we’ll have a follow-up post.


Updated on 9/13/13 @1557 EST

Below is an email response from Edward Marks, Retiree Representative, AFSA Governbing Board (same position on last GB):

“You should be careful about jumping into discussions of situations with inadequate or partisan information. Your article is not factual, refecting paniced and uninformed reactions by people with vested interest in the existing situation. A situation which many find inadequate when dealiing with the Department on systemic as well as personal questions. The former VP Daniel Hirsch was a vocal , and distinctly minority, obstacle to all change proposed in the previous Governing Board and obviously is continuing to oppose change today. He has of course his views, but they are distinctly parti pris. Please do not pursue the media habit of of giving equal coverage (although in this case you did not even do that) to two sides without at least identifying the partisan affiliations.”

Below is an email response from Matthew K. Asada | Vice President of the American Foreign Service Association

“Again, there has been no change in structure of AFSA’s legal department nor in the processing of inquiries or cases.  AFSA leadership is constantly reviewing the organization with the intent of improving service, advocacy, fiscal management, etc.  AFSA would be remiss if it did not do this.

Any changes would go to the AFSA Governing Board for decision in accordance with its bylaws.  But again, there has been NO decision to make any such change.

We welcome feedback from our members as to how we can improve service and encourage them to contact us with their ideas and suggestions.”