In the past few weeks, I received two information requests from the Division of Federal Employees’ Compensation (“DFEC”) in connection with two Applications for Reimbursement submitted pursuant to the War Hazards Compensation Act [“WHCA”]. Specifically, DFEC asked for written statements or a deposition from an injured worker. DFEC sends these types of requests often, and mostly in connection with cumulative exposure psychological disability claims.
Two regulations serve as the backdrop for this post: 20 C.F.R. § 61.101 and 20 C.F.R. § 61.102. The first regulation, 20 C.F.R. § 61.101, describes the documents that shall be submitted (if available) with a reimbursement request. The specific language at issue here is: “When filing an initial request for reimbursement under the Act, the carrier shall submit copies of all available documents related to the workers’ compensation case, including– . . . (2) Statements of the employee or employer . . . .” See 20 C.F.R. § 61.101(c).
The next regulation at issue is 20 C.F.R. § 61.102(a). This regulation states: “If [DFEC] finds that insufficient or inadequate information has been submitted with the claim, the carrier shall be asked to submit further information. Failure to supply the requested information may result in disallowance of items not adequately supported as properly reimbursable.”
The first request I received from DFEC stated that reimbursement could not be issued until DFEC received “statements or the deposition from [Claimant] in which he describes the incidents he witnessed that he feels caused his PTSD. Simply providing reports of incidents in Afghanistan is not adequate to determine if his condition is acceptable under the war hazard act.”
It should be noted that the underlying DBA claim involved in the first request had to be resolved by using the procedures described in OWCP Bulletin No. 05-01 for informal conferences and uncooperative claimants. The Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) properly noticed the informal conference and the claimant failed to appear. Following the Bulletin faithfully, DLHWC issued a Memorandum of Informal Conference with the information available to it. DFEC, however, felt that “the Longshore conference memo that is on file does not provide much information concerning this claim.” Considering the fact that the claimant refused to appear at the informal conference, the lack of information is not surprising. That is why an OWCP Bulletin No. 05-01 informal conference was used to resolve the claim. The kicker to this request is that the “reports of incidents” mentioned in DFEC’s information request referred to reports from the employer, the military, and mental health professionals about the cause, nature, and extent of this specific injured worker’s psychiatric disability.
DFEC’s second information request didn’t ask for a deposition, but it did ask for a written statement. According to the correspondence, DFEC “requires” a “written statement from the employee as to what he experienced while at Camp [REDACTED] and Camp [REDACTED] that would qualify as a War Hazard exposure and his reaction to that exposure.” DFEC recognized that while “20 CFR Section 61.101(c) does indicate that the carrier must submit available documentation, section 20 CFR Section 61.102(a) also indicates if the office finds the information insufficient or inadequate the carrier shall be requested to submit further documentation. The statement of exposure, which can be in a simple written statement, is part of the further documentation to support the claim.” The underlying DBA claim in this instance was resolved with a Section 8(i) settlement agreement signed by the claimant. Settlements that are read, edited, revised, and signed by a claimant who is in agreement with all statements and certifications made in the agreement are not regarded as “written statements from the employee.”
So, based on the language used in the requests sent to me, DFEC can ask for a statement under either 20 C.F.R. § 61.101 or 20 C.F.R. § 61.102. If the statement is not available under 20 C.F.R. § 61.101(c), DFEC takes the position that it can use 20 C.F.R. § 61.102 to delay–or even deny–the reimbursement because of the absence of the statement. All that DFEC needs to delay or deny reimbursement is the feeling that “insufficient or inadequate documentation has been submitted,” no matter whether 20 C.F.R. § 61.101 has been satisfied.
DFEC also referenced the Benefits Review Board’s Armani decision, stating that “[a]n informal statement is not excluded” by Armani. This is a peculiar position for DFEC to take considering the Director’s briefs in Armani. In the “Director’s Response Brief Opposing Employer’s Motion for Reconsideration En Banc,” the Director had the following to say about claimant statements:
“[T]he regulation requires only that the employer ‘submit all available documents related to the workers’ compensation case, including . . . (2) Statements of the employee or employer.’ The regulation [20 C.F.R. § 61.101(c)] does not require a statement from the employee at all; it merely requires the employer to submit one if it is available.”
See Director’s Response Brief, at 7 (emphasis in original) (internal citation omitted).
It appears that there is a definite tension in regulatory interpretation. DFEC wants written statements from the employee and delays or denies lawful reimbursements without them. Yet, the Director says that the relevant WHCA regulation “does not require a statement from the employee at all.” So, which position controls? Should DFEC be given deference, or should the Director be given deference? Should employers and carriers abide by the Director’s interpretation of the regulations or DFEC’s interpretation of the regulations?