Printing - FECA-PT2 - National Association of Letter Carriers

(b) 5 percent of the total to be allocated to each child, up to a total of 15 percent
for all children; and
(c) The remainder to be allocated to the deceased federal employee.
(3) In cases where causes of action are asserted for pain and suffering of the employee
prior to his or her death, for loss of consortium, and for wrongful death, the following
standard allocation percentages will be allowed:
d. Malpractice.
(a) 15 percent of the total to be allocated to the spouse’s claim for loss of
consortium;
(b) 5 percent of the total to be allocated to each child up to a total of 10 percent
for all children for loss of consortium;
(c) 35 percent of the remainder after subtraction of the amounts attributed to
loss or consortium to be allocated to the deceased federal employee, survival claim;
and
(d) 65 percent of the remainder after subtraction of the amounts attributed to
loss of consortium to be allocated to the spouse, wrongful death claim.
(1) Medical Malpractice. When a FECA beneficiary’s FECA-covered injuries are
aggravated by medical malpractice, any settlement or judgment relating to the malpractice
is a recovery subject to §8132. In omputing the required refund, a claimant may request to
utilize only the disbursements attributable to the medical malpractice in filing his or her
SOR. The claimant must provide probative evidence and analysis to allow a determination
to be made by OWCP/FEEWC regarding the amount of the disbursements that would have
been paid absent the malpractice, in order to subtract that amount from the total
disbursements actually paid.
Where none of the expenses properly attributable to the malpractice have been paid for or
reimbursed by OWCP under the FECA, the claimant is still required to file a SOR for the
malpractice recovery. This will normally result in a substantial third party surplus, which is
unlikely to be absorbed (because any subsequent medical expenses and compensation
benefits properly borne by OWCP would be attributable to the original compensable injury,
rather than the injury caused by the malpractice).
(2) Legal Malpractice. A recovery from a third party for legal malpractice is not
considered a recovery subject to § 8132.
e. Structured Settlements. One particular type of settlement agreement, generally referred to
as a structured settlement, in which a third party makes an initial cash payment and also arranges,
usually through the purchase of an annuity, for periodic payments over an extended period of time,
raises a number of issues that must be carefully considered. The dollar amount to be included on
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