Representing Injured Persons Under Federal Workers Compensation Law
The first thing we usually learn from our Federal Workers’ Compensation clients is that it has taken them a long time to find the Soloway Law Firm. This is because they have spent days, weeks and often many months looking for a law firm willing to handle their Federal Workers’ Compensation case, only to find out from each law firm they call, that “we only handle State Workers’ Comp.” When they ask why these law firms don’t handle these federal claims, they either get no answer at all or they get all different answers to the same question. “It’s too complicated,” one lawyer will say, or “it doesn’t pay a big enough attorney’s fee,” say other lawyers. A third lawyer will tell them, “It takes too long to resolve,” while a fourth will say “I don’t do any cases in Federal Court.” When our clients ask these state workers’ comp lawyers who they can call for their Federal Workers’ Comp case, they all tend to say the same thing – “I have no idea.”
At the Soloway Law Firm, we have been handling Federal Workers’ Compensation claims for over 30 years. We don’t advertise this fact too much, because this is the smallest part of our practice. Our other areas of law practice – Personal Injury and Wrongful Death, ERISA and Long Term Disability (LTD) insurance claims, Civil Rights and Social Security Disability Insurance claims, make up about 85% of our entire practice. This leaves only 15% making up the 3 areas of Federal Workers’ Compensation we have the time to accept. While this may be one of the smallest percentages of our law firm’s practice, it often takes a much larger percentage of our time (in any particular month) to complete. This is because we are trial lawyers, and a “Final Hearing” in a Federal Workers’ Compensation claim is similar to our personal injury or wrongful death trials. It takes hundreds of hours to get to that point, and it takes hundreds of hours of legal work to win this kind of workers’ compensation case for our clients. So while our Federal Workers’ Compensation practice is the smallest part of our overall law practice, we devote a great deal of our time to winning these claims for our disabled clients who were injured at work.
The 3 areas of Federal Workers’ Compensation law we accept at the Soloway Law Firm are (a) the “Defense Base Act” (DBA); (b) the “Longshore And Harbor Workers’ Compensation Act” (LHWCA); and (c) the “Non-Appropriated Funds Instrumentalities Act” (NAFIA). Regardless which of these federal laws applies to your claim, the nature of the benefits to which you are entitled is the same. Essentially, only two forms of benefits are payable under all workers’ compensation laws – indemnity benefits (wage loss) and medical benefits. The indemnity benefits are generally payable at what is called a “compensation rate,” which is normally two-thirds (2/3) of the worker’s “average weekly wage” (AWW). The exception to this, often for persons covered by the DBA or for part-time workers, is where the AWW is so high or so low that 2/3 of this amount exceeds the maximum or is below the minimum allowed by law. In these circumstances, the maximum and minimum compensation rates are set by federal rule on a pay scale each year. Apart from wage loss benefits, the medical benefits provided under Federal Workers’ Comp law provide for the payment of 100% of the injured worker’s accident-related medical bills and costs of prescriptions. These two economic loss claims, medicals and indemnity, are the only damages available under workers’ compensation.
As is easily understood from the above, the obvious thing that our clients enjoy from workers’ compensation laws is that these benefits are payable without regard to the issue of fault. For instance, before workers’ comp laws were enacted, an injured worker was required to prove that his or her injury was caused by the employer in some way or by the fault of a co-worker. Because workers’ comp is a “No-Fault” law, benefits are now payable without regard to fault, even if the worker caused his own injury. The worker is therefore entitled to these wage loss and medical benefits automatically upon suffering on injury or illness while “within the course and scope of employment.” Just as obvious, of course, is that our clients do not enjoy what they have to give up under workers’ comp laws, especially when their injury is a direct result of the employer’s or co-worker’s negligence. As workers’ comp acts as a shield of immunity 99% of the time, the injured worker cannot sue his or her employer and therefore is usually never entitled to 1/3 of the lost wages, nor any compensation whatsoever for the pain and suffering or loss of the ability to enjoy life caused by the work-related injuries. All you get is wage loss and medical benefits, nothing else.
For claimants who live on the Gulf Coast, claims under these Federal Workers’ Compensation laws should be filed with (and are initially handled administratively by) the Office of Workers’ Compensation Programs (OWCP), Longshore Division, in Jacksonville, Florida. If claim forms are initially filed in other OWCP offices, they are ultimately sent to Jacksonville for resolution when the injured worker’s home is in Southern Alabama and North/Northwest Florida. Should the employer and its workers’ compensation insurer fail to pay proper wage loss benefits or medical care, the worker must request an “Informal Conference” from OWCP in Jacksonville, which is usually accomplished by telephone within 30-60 days. If the carrier refuses to pay any wage loss or medical benefits recommended by OWCP at the Informal Conference, the injured worker can demand that the case be referred to the Office of Administrative Law Judges (OALJ) for a formal hearing before an ALJ. Rights of appeal following the ALJ’s Decision and Order include the Benefits Review Board, the Fifth and Eleventh United States Courts of Appeal (in New Orleans and Atlanta), and the United States Supreme Court in Washington, D.C. Of course, the Soloway Law Firm practices before each and every one of these forums, and Mr. Soloway has actually appeared before the U.S. Supreme Court on a Federal Disability statute case on behalf of the Association of Trial Lawyers of America (ATLA) in 2003.
While we are proud to handle all of our Federal Workers’ Comp client’s appeals, most of our cases are resolved informally before the OWCP, or formally at trial before the Administrative Law Judge (ALJ) and Benefits Review Board (BRB). Quite often, the workers’ compensation insurance carriers refuse to provide our client adequate medical care from his or her choice of doctor. As the law allows our client s to make the initial decision of which doctor he or she wants to treat with, and because the opposite is true under state workers’ comp law, carriers mistakenly believe they can force our clients to treat with the insurance carrier’s choice of doctor. Thus, we often butt heads early on with carriers who refuse to allow our clients to treat with whomever they want.
Even where the carriers allow our clients to have their choice of doctor, the carriers still attempt to control the flow of adequate medical care, either by failing or refusing to pay all of our client’s medical bills, or by employing a “nurse case manager” who often interferes with the treating physician’s medical care plan. Thus, it is not unusual to have more than one Informal Conference on our client’s case, demanding that OWCP support recommended medical treatment by surgeons, pain management physicians, and other medical specialists treating our Federal Workers’ Comp clients. Should the carrier refuse such recommendations, we demand a Formal Hearing before the ALJ, who normally travels to Northwest Florida for trial from the OALJ office in Covington, Louisiana.
Even where the carrier pays for all reasonable and necessary medical care, virtually every single Federal Workers’ Compensation Act case we handle (regardless of whether it is a case under the Defense Base Act (DBA), Non-Appropriated Funds Instrumentalities Act (NAFIA), or Longshore and Harbor Workers’ Compensation Act (LHWCA)), results in a disagreement as to the nature and extent of our client’s disability from employment. In other words, both the employee and the employer/carrier hope that the work-related injury or illness resolves completely after a short period of medical treatment or a minor surgery, and the employee is back at work for the same employer, making the same amount of money, performing the same full-time work. Unfortunately, this is not usually the case, especially where the illness or the traumatic injury is something other than a minor one causing less than a few weeks of missed work. For all these other injuries and despite the provision of reasonable and necessary medical care, both parties disagree on the nature and extent of the injured worker’s residual disability from employment. The employers/carriers always seem to argue that the employee is fine and can return to his job. They will still argue this, despite the fact that the employee has had major surgery or a great deal of medical care, and the employer refuses to give him his job back. The reason the carriers argue this is simple – if the employee can return to his job, no more wage loss benefits are usually payable.
Where a Federal Workers’ Compensation Act claimant has suffered serious injury, especially to his neck or back, or his weight-bearing joints, he cannot usually return to his prior work despite all the medical care provided by his choice of doctors and paid for by the carrier in full. There are many reasons for this of course. It might be that the claimant’s prior work was very heavy, where he or she was lifting heavy objects frequently or lifting lighter objects occasionally but doing so while standing and walking or bending and climbing. Thus, the injured worker simply cannot return to this medium-to-heavy work. Other times the injury prevents the person from prolonged standing or walking even though they can lift 20 pounds, and because of the work-related injury, he or she is now only able to do a job involving mostly sitting or having a stand/sit option with frequent rest breaks. It is clear in such circumstances that (a) the claimant cannot return to his former work; or (b) the claimant cannot find a lighter job that pays the same (or even more) money. Nevertheless, the employer/carrier will simply refuse to believe this and therefore they “controvert” (deny) the claim.
It is well established that where a claimant has demonstrated his inability to perform his employment duties of the job he was doing on his date of injury, that is all he must show in order to prove his case of entitlement to additional wage loss benefits at the outset. This is called establishing a “prima facie” case. It is like serving a volleyball over the net. If the ball is served to the opponent’s side of the net and nothing else happens, you win the point. The same is true with workers’ comp, if the claimant establishes that he cannot perform the duties of his former job, the burden shifts to the employer to establish the availability of suitable alternate employment. If the employer fails to do so, then the Federal Workers’ Compensation claimant wins his claim for total disability from employment, and wage loss benefits must be paid by the employer/carrier.
Of course, the workers’ comp carriers know this and do not merely stand by doing nothing as they lose the wage loss claim. Rather, they put up a fight, hiring well-paid insurance defense lawyers, consultative medical doctors and vocational experts to prove there are many jobs that the injured claimant can perform that will pay him the same wages that he or she was earning at their former job. Since these carriers know that proving the existence of these alternate jobs is the difference between paying absolutely nothing to the claimant versus paying wage loss benefits for the rest of the claimant’s life, substantial efforts are made at this stage of the litigation by the workers’ compensation insurance carrier.
In order to meet this burden of proving the availability of suitable alternative employment, the employer/carrier must establish that job opportunities are available within the geographic area in which the claimant resides, that he is capable of performing, considering his age, education, work experience, and physical restrictions, and which he could realistically secure if he diligently tried. If such a showing is made, the claimant can still win his claim for wage loss benefits even at this point in his quest to establish total disability. He must demonstrate that he diligently tried to secure the jobs that the employer/carrier found for him, and was unable to secure any such employment.
The adversarial nature of the proceedings under the law of Federal Workers’ Compensation certainly is easy to see at this point in the case. Employers retain “Vocational Experts” to perform what is called a “Labor Markey Survey” (LMS) in order to establish that suitable alternate employment exists for the claimant. This LMS is often the key to winning or losing the entire claim for future wage loss benefits. For instance, while most jobs found by the vocational or “job expert” will be located within 50-60 miles of the claimant’s home, workers’ comp carriers defending claims filed under the Defense Base Act (DBA) argue that the relevant labor market is worldwide. This is because the claimant was usually working overseas if the claim falls under the DBA. However, the vast majority of jobs properly found within the employer/carrier’s LMS must be within a radius where it would be realistic for the injured worker to travel each day from his home to the place of employment. Only then would the ALJ likely find that the LMS did in fact show the existence of suitable alternate work. For example, if a claimant lives in Pensacola, and the carrier’s Labor Market Survey (LMS) located 5 jobs for him in Panama City, the ALJ will usually find that the LMS is defective because driving 100 miles to work each day is too far a distance to be considered suitable alternate work.
Much of our success in winning our clients’ future wage loss benefits derives from the permanent physical restrictions that the injured worker retains at the point he reaches maximum medical improvement (MMI). For instance, by establishing that our client must take 15 minute rest periods every hour in order to deal with his severe pain resulting from his work injury, we can show through our own vocational expert that the claimant cannot perform any of the jobs that are listed on the employer/carrier’s Labor Market Survey. Even where the carrier locates one or two jobs, where we can show that our client applied for these jobs several times and was never hired or even allowed to interview for such limited employment, we thus prove to the satisfaction of the Administrative Law Judge that despite our client’s diligent pursuit of such alternate employment opportunities, he was unable secure a position. In both of these scenarios, we succeed in winning our client’s claim for “Permanent Total Disability” from employment, entitling our clients to wage loss benefits for the remainder of his or her life.
Very few attorneys in Florida and the United States are willing to accept representation of Federal Workers’ Compensation claims under the Defense Base Act, Longshore and Harbor Workers’ Compensation Act, and the Non-Appropriated Funds Instrumentalities Act. As the only law firm that handles such claims in Northwest Florida, the Soloway Law Firm takes pride in not only handling such cases, but handling them extremely well for these injured workers who need our help. The need of these injured workers to receive adequate medical care and wage loss benefits is great, and we accept the responsibility of bringing their needs to the attention of the United States Department of Labor in order to win these benefits and protect the future of these injured workers. It may take some time for our clients to locate us; however, when they do, we get to work immediately on all their claims and don’t stop working until they each get a full and fair opportunity to pursue all their legal remedies under the law of Federal Workers’ Compensation. This has been part of the Soloway Law Firm’s mission for the last 32 years, and will remain part of our practice of law for as long as the Soloway Law Firm exists.