- Jeff Zeelander
"Havana Syndrome" policy guidance issued by OWCP for federal employees
OWCP has finally issued guidance with regard to these Havana Syndrome cases. The good thing about the guidance is that getting a causation report under the circumstances of these injuries has been quite problematic and that issue has been addressed in FECA Bulletin 22-03 by OWCP. However, filing new claims and seeking review of denied claims may be very complicated due to timeliness issues that are not addressed in the policy guidance issued by OWCP. Following is the text of FECA Bulletin 22-03
FECA BULLETIN NO. 22-03 January 12, 2022
Subject: Processing Claims for Anomalous Health Incidents (AHI) under the Federal Employees Compensation Act (FECA)
Background: The FECA covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers’ Compensation (DFELHWC) provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103. The FECA pays compensation for disability or death of an employee resulting from injury in the performance of duty.
In recent years, and predominantly overseas, some Federal employees have reported a series of sudden sensory events such as sounds, pressure, or heat concurrently or immediately preceding the sudden onset of symptoms such as headaches, pain, nausea, or disequilibrium (unsteadiness or vertigo). Symptoms were first reported by personnel stationed in Cuba and have since been collectively referred to as Havana Syndrome.
Purpose: To provide targeted guidance on the handling of claims resulting from AHIs.
1. Claim Intake
a. Claimants who sustain an injury as the result of an AHI should file Form CA-1, Notice of Traumatic Injury and Claim for Continuation of Pay / Compensation, as current understanding of AHIs are that they are specific events that occur over a single day or work shift.
b. A new special indicator of AHI will be created within the Employees Compensation and Management Portal (ECOMP) for agency reviewers to select when submitting a claim resulting from these incidents.
c. Claims created with this special indicator will be processed by the Special Claims Unit to ensure consistency in adjudication. See FECA PM 1-0200.
2. Factual Review
a. The claims examiner should review the factual evidence and determine if the agency has concurred with the allegation that the claimant was exposed to an AHI.
b. If the agency concurs that an AHI occurred within the performance of duty, the claims examiner should accept the incident as factual and proceed with a review of the medical evidence of record.
c. If the agency does not concur or does not respond regarding whether an AHI occurred within the performance of duty, the claims examiner should further develop the claim, requesting a detailed statement from the agency as to whether it agrees with the claimant’s allegation(s).
d. If an employing agency fails to respond to the request for a statement, the CE may accept the claimant's statements as factual. See 20 CFR §10.117(b). The claims examiner may also reach out to National Office through their supervisor for escalation if unable to secure an adequate response from the employing agency.
e. In cases where the agency response is ambiguous, the case may be considered for conferencing. See FECA PM 2-0500.
3. Medical Review
a. The claims examiner should also review the medical evidence submitted to determine if any medical conditions have been diagnosed in connection with the AHI incident. Because of uncertainty in the medical community with respect to these incidents, claims examiners may see medical reports addressing symptoms such as headaches, pain, nausea, etc. rather than a concrete diagnosis. While symptoms are not compensable under the FECA, it is appropriate to accept such claims for a diagnosed traumatic brain injury, ICD-10 S06.301A. Additional conditions may be appropriate depending on the medical evidence submitted. The claims examiner may consider a referral to a District Medical Advisor (DMA) if needed for clarification of the diagnosed condition(s).
b. Once the factual component of the claim has been established and the employee has been diagnosed a traumatic brain injury, a fully rationalized medical opinion as to causal relationship is not needed. The physician's diagnosis and an affirmative statement are sufficient to accept the claim. However, additional diagnosed conditions beyond traumatic brain injuries (i.e. gastrointestinal conditions, cancer, etc.) require a well-rationalized opinion from a physician addressing causal relationship. The claims examiner may consider a referral to DMA if needed to determine if the AHI was competent to cause additional diagnoses indicated.
c. All medical evidence must be submitted from a qualifying physician. If medical evidence is submitted from an individual such as a nurse practitioner or physician’s assistant, a report from a physician should be requested. However, as some claimants are located in remote areas overseas and may have limited access to a qualifying physician, a claims examiner may refer the report of a nurse or physician’s assistant to a DMA for review and concurrence with the original provider’s assessment. If the employing agency has a qualifying physician available stateside, they may also review and provide concurrence with the initial provider’s report.
a. If the claim meets the five basic requirements for adjudication, given the caveats noted in items 1 and 2 above, the claim should be accepted. A claim that is compensable for some conditions should not be delayed for the final adjudication of all conditions, rather, the claims examiner should issue an acceptance letter on the claimed conditions that can be accepted and further develop the remaining claimed conditions.
b. If the claim does not meet the five basic requirements for adjudication, given the caveats noted in items 1 and 2 above, the claims examiner should proceed with a denial.
5. Claims for Compensation: Nothing in this bulletin alters the claimant's burden of proof for establishing disability, the need for ongoing medical treatment and any claim for a consequential condition. See PM 2-0901.5(a)(2).
6. Schedule Awards: Like any other FECA claim, claims resulting from AHIs may result in permanent impairment to certain parts of the body which will entitle the claimant to an award of compensation payable for a set number of weeks. The claims examiner should monitor medical reports for the possibility of eventual impairment to a schedule member and the date by which maximum medical improvement (MMI) is expected. Schedule awards are only payable to body parts covered by the FECA or subsequently added by regulation. See 5 U.S.C. 8107 and 20 C.F.R. §10.404. Examples of schedule members that may be impaired by an AHI include ears (hearing) and eyes (vision).
7. Dual Benefits: On October 8, 2021, President Biden signed the Havana Act into law. This legislation authorizes the Central Intelligence Agency, the Department of State, and other agencies to provide payments to agency personnel who incur brain injuries from hostilities while on assignment. Specifically, the bill allows agency personnel and their families to receive payments for brain injuries that are incurred (1) during a period of assignment to a foreign or domestic duty station; (2) in connection with war, insurgency, hostile acts, terrorist activity, or other agency-designated incidents; and (3) not as the result of willful misconduct. OWCP does not consider receipt of compensation under the Havana Act to be a prohibited dual benefit and no offset of FECA benefits is required.
Disposition: This Bulletin is to be retained until incorporated unto the DFELHWC Procedure Manual.
ANTONIO RIOS Director for Division of Federal Employees’, Longshore and Harbor Workers’ Compensation
Distribution: All DFELHWC Staff