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Chapter three of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) defines procedures for coordinating state workers’ compensation (SWC) benefits. During the coordination of benefits, some compensations payable under part E of the Act are reduced to cover benefits previously issued to the claimant for the same illness.
Provisions under Chapter Three on coordinating state workers’ compensation
Authority (42 U.S.C. § 7385s-11) – The Office of Workers Compensation Programs (OWCP) coordinates the part E awards with any amounts received from the program for the same covered illness after deducting the cost the claimant incurred pursuing the benefits.
State Workers’ Compensation Benefits
SWC programs aim at providing injured workers and survivors benefits for injuries and illnesses arising from their work without suing employers. Benefits paid under the SWC program include:
- Medical and vocational services
- Cash payments to injured workers for wage loss or reduced earning capacity
- Death and funeral benefits to the worker’s survivor(s)
Laws governing the SWC benefits differ from one state to another. However, all SWC benefits are calculated based on the worker’s average weekly earnings. In some states, these benefits are administered by a state commission. Cases involving disputed claims are supervised/adjudicated and enforced by a state board, such as those involving employers and insurance companies. The payments are issued in a lump sum or on an ongoing basis, which can be weekly or monthly, and in other cases, both.
Instances that require coordination
Part E benefits are coordinated if an EEOICPA beneficiary received benefits through an SWC program for the same covered illness for which he or she is eligible to receive benefits under Part E. In such cases, a CE will first evaluate the claimant’s eligibility for part E benefits, then determine who the beneficiary was before and if coordination is applicable. For instance, if the claimant receives an SWC asbestos settlement and is covered for the same asbestos illness, the coordination of the part E award will apply, and the previously received benefits will be deducted.
Also, if an employee dies before receiving a settlement filed under part E, medical benefits awarded to the survivor will be coordinated if the deceased had received benefits for the same covered illness. In such a case, the coordination of medical benefits applies because the Part E medical benefits were based on the employee’s entitlement to Part E benefits, and the same employee had received SWC benefits for the same covered illness.
Exceptions to the coordination requirement:
- Multiple illnesses– coordination is not required if the claimant receives SWC benefits for a non-covered illness or covered and non-covered illnesses arising from the same work-related exposure.
- Covered illnesses do not require coordination because they result from exposure to a toxic substance, and DEEOIC recognizes the medical condition.
- Waivers – DEEOIC waivers apply in cases where the costs incurred in coordinating Part E benefits justify the waiver. SWC benefits under $200 are not coordinated. For a waiver to be granted, the CE should prepare a memo to the file explaining that the waiver is required based on the $200 minimum and get approval from the District Director.
- Medical and vocational benefits only claims paid by SWC programs are not coordinated.
SWC signed response
For part E claims to be accepted, the claimant must provide a signed affidavit reporting on the following:
- Whether an SWC claim had been previously filed for the same illness
- If there is a lawsuit filed against the same toxic exposure
- If the claimant has ever been convicted in connection with the receipt of or application for any federal or state workers’ compensations.
The signed response is mandatory regardless of the information answering these three questions on forms EE-1 or EE-2.
A CE may get a verbal response from the claimant concerning these three questions. And if the claimant confirms they haven’t filed or received an SWC claim, filed a lawsuit, or convicted or pled guilty of fraud, the CE may issue a Recommended Decision (RD).
A claimant’s signed response must be included in the case file for the Final Decision (FD) to be issued. For this reason, before transferring the case to the FAB, the CE must write the claimant a development letter requesting the signed response. The development letter should be claim-specific and inform the claimant that by signing the written response, they agree to report any changes to the information they provide to the DEEOIC. Also, failure to submit the signed request would lead to administrative closure of the supposed claim.
If the CE cannot obtain a verbal response, or the claimant agrees to have filed a claim for the same illness, lawsuit against the same toxic exposure, or been guilty of fraud, the CE should seek further clarification and development before issuing an RD. If the claimant doesn’t respond to at least two development letters (requesting clarification), the CE may consider administrative closure of the claim.
If the CE issued an RD after verbal confirmation without a signed response, the FAB should make every effort to obtain a signed response through phone calls and follow-up development letters. If the FAB cannot obtain the signed response within 30 days of sending the follow-up development letter, they may remand the case to the district office for claim closure.
The FAB should undertake further development if it discovers evidence of an SCW claim, lawsuit, or fraud that may affect the claimant’s EEOICPA benefits. The FAB can seek clarification from the claimant through a phone call or remand the case to the district office for further development.
By signing the written response, claimants agree to report any changes to the information they provided (about the SWC claim, lawsuit, or fraud) to the DEEOIC. The signed response is only requested again if there is a new exposure or illness.
State workers’ compensation claims
If it is confirmed that an SWC was filed, the CE should verify the claimant’s part E eligibility, the illness, and the benefits received. If there is qualified employment, covered illness, and an SWC claim for the same illness, the CE should issue the claimant with a development letter advising the claimant to obtain evidence for the EEOICP to render a decision. Such evidence can be obtained from the state commission, board, agency, or attorney and should verify the type and total amount of SWC benefits paid to date.
The evidence provided must specify the total amount of benefits the claimant received up to date per benefit category, such as medical, disability, death/burial, settlement amounts, attorney fees, vocational habilitation, and any related disability payments.
If the claimant does not respond as required to facilitate the coordination of benefits, they are advised to provide the required documentation for their claim to move forward or the claim is administratively closed.
In some instances, the SWC evidence records cannot be obtained by the responsible parties. For these cases, the CE should confirm that the information is no longer available and may accept the claimant’s signed affidavit attesting to the SWC benefits amounts, which may be used for coordination.
Pending SWC payment
The Coordination of benefits depends on the dollar value of the SWC benefits received for the same covered illness. It does not apply if the claimant has not previously received SWC benefits during part E payment. The CE should not deter issuing RD or FD in cases of pending SWC benefits for covered illnesses. Also, coordination doesn’t apply in such cases because the claimant has not yet received any SWC benefits.
If a pending SWC claim is paid before part E payments and the RD or FD were already issued, the part E payments can only be issued based on the following:
- If the claimant files for an SWC claim for the same covered illness and the SWC payment is still pending at the time of RD, the CE should issue the RD without coordination. However, the CE must note in the RD cover letter that if the SWC benefits are paid after the issuance of RD but before FD, their claims would be remanded for coordination and new RD by FAB.
- If SWC payments are pending and the case is at the FAB stage, the Hearing Representative (HR) should issue the FD without coordination. The HR will also note in the FD’s cover letter if the SWC payment is made after the issuance of the FD, but before the issuance of the Part E payments, the FD approving the payments will be vacated.
- In cases where SWC payments are pending during EEOICPA payments, the CE should verify from the claimant if the SWC payments are still pending before issuing part E payments. If the SWC payments are made after the issuance of FD but before part E payments, the DO should forward the claim for reopening at the National Office.
Calculating the coordination amount
CEs should complete the “EEOICPA/SWC Coordination of Benefits Worksheet” (Exhibit 2) once they receive documentation verifying SWC benefits received by a claimant for the same covered illness. The CE should use the Worksheet to calculate and determine coordination amounts that should reflect in a claimant’s EEOICPA Part E benefits. The completed worksheet is then stapled to the inside of the case file jacket.
Maximum aggregate compensation- monetary compensation provided under Part E, which includes wage loss and impairment compensation, excluding medical benefits, should not exceed $250,000. Amounts coordinated are not put into consideration when determining aggregate compensation.
Periodic SWC benefits- If the claimant has been receiving ongoing periodic SWC benefits, the annuities can bring challenges in determining the coordination amounts. The FAB should use the same cut-off date used by the CE at the DO to determine the SWC payments received.
Part E benefits exceeding SWC benefits- the EEOICPA Part E benefits entitled to the claimant, including lump-sum payments and/or post-filing and ongoing medical benefits remaining after deducting the SWC coordination amount, should be listed on the worksheet on Line 7. This amount should also be referenced in the RD alongside an explanation of how the amount was coordinated.
Part E benefits lower than SWC- In cases where the difference between part E benefits and SWC coordination amount is negative, the net amount is recorded in Worksheet Line 7. In such cases involving survivors, no action is required. Otherwise, the surplus can be absorbed from EEOICPA part E benefits due to the employee. It is noted in the RD alongside an explanation that the OWCP will not pay medical benefits, and the amount it would have paid to cover ongoing medical treatment will absorb the remaining surplus. The CE should further explain in the RD that the OWCP would direct any due lump-sum payments to cover the surplus until it is fully absorbed.
Where a surplus is involved, the FAB issues the claimant with an award letter (containing special language) accompanied by the final decision. The award letter states the exact amount of the surplus and explains that the surplus would be absorbed by payable medical benefits and future lump-sum payments (wage loss and impairment). The letter further directs the claimant to submit medical bill proof to the DO until the DO issues a notice that the surplus has been absorbed. At the same time, the claimant should also advise medical providers to submit the same proof to the DO.
Actions to absorb surplus
A district director appoints a qualified point of contact (POC) to monitor surplus cases for SWC benefits and tort settlements. EEOICPA benefit disbursements can only begin once the surplus is absorbed. POCs use the DEEOIC Offset Tracking Database (available at the National Office shared drive) to tabulate the proofs of payment and any lumpsum awards.
During a surplus absorption, the POC should temporarily place and retain the case file and its contents in a red file jacket until the surplus is cleared. For this reason, no payments are made on a red jacket file. Unpaid bills received during the surplus period are forwarded to the medical bill processing agent (BPA). The POC should enter proofs of payments into the appropriate field and monitor the DEEOIC Offset Tracking Database for the surplus offset until it is depleted.
Once the surplus is depleted, the POC removes the case file’s temporary “red jacket” and restores the case contents to the original file jacket. This signifies that future EEOICPA benefits can commence. Cases in the DEEOIC Offset Tracking Database must not be deleted.
The POC should also send a letter to the claimant informing them that the surplus has been depleted, and they can send their future medical bills to the BPA address provided for review and payment.
While medical bills are directed towards a surplus, the CE may obtain a medical examination, a second opinion, a referee examination, or a medical file review, paid for by the DEEOIC. Consequently, the coordination of benefits only applies to approved medical conditions in ECMS, coded with a medical condition type of “PA.” The CE authorizes the BPA to pay all bills related to a directed medical examination by entering a comment into ECMS case notes. For cases with a surplus, the BPA creates a thread for medical travel refunds to the POC, and these payments are not coordinated.
Accurate and prompt coding is essential for surplus cases. The EEOICPA Procedure Manual provides specific ECMS coding guidelines for SWC payment cases. The medical condition status field on the Employee Medical Condition screen for surplus cases should be updated with “O” or offset to suspend medical bill payment until the surplus is absorbed. Once the surplus is offset completely, the “O” code is replaced by “A” (Accepted). During the surplus, the BPA denies medical bills for medical conditions coded as “O” and explains that the bills cannot be paid due to a surplus.
State Workers’ Compensation Office Information Privacy
Privacy and disclosure regulations prohibit the CE from disclosing any information relating to claims filed by claimants to SWC offices except:
- When the CE needs information from the SWC office for processing an EEOICPA claim- the CE should inform the office that the claimant filed for EEOICPA benefits.
- If an SWC office requests evidence as to why a claimant cannot receive SWC claim benefits. Such requests are submitted to the National Office for review and further directions.