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Feedback to Senate FECA Reform Hearing

July 22, 2011

Honorable Daniel Akaka Chairman
Honorable Ron Johnson Ranking Member
Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia
Committee on Homeland Security and Governmental Affairs
United States Senate
Washington, DC 20510

Dear Mr. Chairman and Ranking Member Johnson:

I am writing on behalf of the membership of the Federal Law Enforcement Officers Association (FLEOA), to express our views with respect to the Subcommittee hearing entitled "Examining the Federal Workers’ Compensation Program for Injured Employees.” We respectfully request that this letter be made part of the record for this hearing.

FLEOA is the largest nonpartisan, nonprofit professional association exclusively representing active and retired federal law enforcement officers. FLEOA represents more than 26,000 federal law enforcement officers from over 65 different agencies. The men and women we represent are employed in an occupation that is absolutely unique in the ranks of the federal government. Law enforcement positions are filled by men and women who risk their lives each day to protect our nation from criminals and terrorists. It is one of the most stressful, most dangerous, and most rewarding careers for those who meet the rigorous requirements of the job. Over the years, our organization has worked to address major flaws with the Federal Employees’ Compensation Act (FECA) system, and we appreciate this opportunity to share our views on this important issue.

Every year, approximately 300 Federal law enforcement officers sustain line of duty injuries during violent physical encounters. They also suffer from serious duty related injuries from vehicle accidents, toxins and hazardous materials exposure, and training incidents. From all the pain these noble warriors have endured, the pain that hurts them the most is their negative experiences dealing with the Office of Workers’ Compensation Programs (OWCP), and the Division of Federal Employee Compensation.

On July 21, 2010, I testified before the House Committee on Government Reform’s Subcommittee on the Federal Workforce and highlighted situations in which federal law enforcement officers injured in the line of duty were made worse by the FECAOWCP system. To illustrate the pattern of how our members have been mistreated, including having to endure financial and emotional duress, during my testimony I discussed five separate cases that bear repeating here:

1. On September 11, 2001, Special Agent Mike Vaiani was at Ground Zero when the World Trade Center Towers collapsed. Before the second Tower fell, Special Agent Vaiani and a firefighter ran into the building and rescued injured fire fighters and civilians. In the process, S/A Vaiani sustained serious injuries to his neck, shoulders and back. After filing his workers’ compensation claim, he first heard from a OWCP claims examiner in October 2001. The examiner asked him one question: did the firefighter ask S/A Vaiani to follow him into the building? S/A Vaiani’s response was that of a hero: "I went in to save lives because that’s what I do.” Afterwards, S/A Vaiani began to receive collection notices for unpaid medical bills. Then, in December 2002, OWCP lost his case file and his supervisor offered to pay his medical bills on her personal credit card. After enduring this miserable process, S/A Vaiani stated, "I would rather run back into the Tower while it’s on fire than have to deal with the Department of Labor.”

2. After Anthrax-contaminated mail was sent through the Brentwood postal facility in 2001, Postal Inspector Bill Paliscak responded to the crime scene. He was instructed to remove a contaminated filter to preserve as evidence. Wearing only a dust mask, Inspector Paliscak was unexpectedly covered in Anthrax dust. Days after the severe Anthrax exposure, Inspector Paliscak became deathly ill. The OWCP denied his claim because they questioned if it was in his job duties as an Inspector to touch a contaminated filter. In spite of the fact that the filter he removed was saturated with Anthrax spores, his claim was denied because he could not immediately prove he was suffering from Anthrax exposure. In May 2002, OWCP finally accepted Inspector Paliscak’s claim. As a result of this incident, Inspector Paliscak’s credit was ruined since his medical bills went unpaid for months, and his medical care was disrupted. Today, this hero is bound to a wheelchair, while he suffers from severe muscle spasms, overwhelming fatigue, and other debilitating effects of Anthrax exposure.

3. On November 16, 2006, Special Agent Paul Buta was off-duty with his family in a mall when he was shot while effectively stopping a violent assault committed in his presence. His heroic actions saved a man’s life, and stopped a lethal threat. While his wife and his 13-year old daughter administered first aid, S/A Buta’s 4-year old daughter went for help and called 911. After receiving medical care, S/A Buta’s doctor told him he would need extensive physical therapy to prolong the atrophy of his leg muscles. With bullet fragments lodged in his leg, S/A Buta began physical therapy treatment. Unfortunately, due to OWCP’s inability to pay S/A Buta’s bills timely, his physical therapy ended on June 30, 2008. Without the physical therapy, S/A Buta is struggling to meet the mandatory fitness standards to keep his job. Prior to the shooting, S/A Buta was a triathlon athlete. Now, he’s a hero in pain and in serious debt.

4. From 2000 to 2007, Special Agent Tim Chard was assigned to a narcotics task force. During this time, S/A Chard was personally involved in busting and dismantling 100 meth labs. His task force commander stated, "I was so impressed that he, a Federal Agent, was helping us do a job we hated when other Detectives assigned to our team seemed to disappear whenever a lab was discovered.” In late 2008 and into 2009, S/A Chard began to suffer from a variety of debilitating symptoms and pain that seemed connected to his exposure to meth labs toxins. Renowned expert Dr. Gerald H. Ross wrote, "It is my medical opinion that in all reasonable likelihood, S/A Chard’s symptoms have resulted directly from his meth and meth-related chemical exposures.” Dr. Ross recommended that S/A Chard be admitted to the Utah Meth Cop Project’s 30-day detoxification program for treatment. Unfortunately, OWCP denied S/A Chard’s claim. Appealing to his agency for help, S/A Chard was told that if he enrolled in the program, "any costs you incur up front will have to paid out of pocket. You will also be required to take sick leave for the program. You would then be reimbursed for your expenses by OWCP, if they accept your claim.” In spite of OWCP’s rejection of his claim, the FLEOA Foundation paid for S/A Chard to enter the treatment program. After completing the program, S/A Chard’s health greatly improved. However, he will have to pay for all medical tests to monitor his condition.

5. More recently, Deputy Jason Matthew was stabbed by a female inmate who had secreted an HIV-contaminated edged weapon on her person. Deputy Matthew was immediately taken for emergency treatment to tend to his wound and his exposure to an HIV contaminated weapon. While receiving emergency medical care, Deputy Matthew was given a prescription for HIV preventive medication. After laying out his money to purchase the medication, Deputy Matthew’s OWCP claim was denied. He was informed that because he was not diagnosed with HIV, he would not be reimbursed for the prescription expense. Fortunately, his agency intervened and paid this hero’s medical bill. Deputy Matthew continues to be monitored for his HIV exposure. The obvious common denominator in all of these horror stories is that OWCP is unable to effectively process claims filed by injured law enforcement officers or to grasp the nexus of the injury with the law enforcement functions they perform. To their credit, after the 2010 hearing both the Directors of the Division of Federal Employees’ Compensation and OWCP met with FLEOA and agreed to establish traumatic care nurses for law enforcement injuries and a law enforcement officer Ombudsman in each OWCP district. Despite this positive development, more work is still needed.

To date, several legislative proposals have been brought forward in both the House and the Senate to reform the FECA system. While we appreciate the work of the Subcommittee and others on this issue, we believe that it is fundamentally important that any such reform recognize the unique nature of law enforcement work and the injuries sustained by law enforcement officers, and not advance a "one size fits all” solution.

One idea which has been suggested is to transition FECA recipients into disability retirement under FERS or CSRS—an approach that raises more questions than it answers. Law enforcement officers who are forced into a disability retirement usually sustain injuries that are markedly different than those sustained by the general federal employee. Indeed, the phrase "line of duty injury” means one thing for a law enforcement officer, and something very different for other federal employees. A Special Agent wakes up each day knowing that there is a real risk that they may be critically injured or killed on the job. And the disability retirement system should reflect that fact. First and foremost, FLEOA believes that rather than the generic 40% of your high three taxable rate, a disabled law enforcement officer should be eligible for what many State and local law enforcement agencies provide: 75% of their high three. Secondly, Congress should look at providing these benefits tax free. Again, unlike other Federal employees, an officer who is disabled is unlikely to be able to find a similar job in law enforcement making the same salary. Thus there is a real question as to why—if placed on disability retirement—we would want to literally pull the standard of living rug out from under them when they sustain a disabling injury in the line of duty. Finally, it would also be important to ensure continuation of medical coverage for ongoing treatment related to a line of duty injury to ensure that law enforcement officers are not required to pay for these needed services out of pocket under a retiree Federal Employees Health Benefits (FEHB) program package.

Further, FLEOA fully supports extending the continuation of pay (COP) period for traumatic injuries sustained in the line of duty. For those officers assaulted by a suspect, exposed to a toxic substance, or shot or stabbed, or involved in an explosive blast while enforcing the law, a longer time frame would better allow for a proper evaluation to determine if a return to work will be possible.

On behalf of the membership of the Federal Law Enforcement Officers Association, thank you for the opportunity to provide our views on reform of the FECA system. Our organization stands ready to work with the Subcommittee as it considers this important issue.


Sincerely,

Jon Adler
National President