12th Annual Federal Workers' Compensation Conference S i #39 ...

12 th Annual Federal Workers’
Compensation Conference
Going for the Gold and Achieving Success Together
Session #39
For Whom the Bell Tolls
Death Benefits under the FECA
Jim C. Gordon, Jr.
Office of Solicitor USDOL
1

What benefits are available?
• Death benefits (5 U.S.C. § 8133)
• Funeral Expenses (5 U.S.C. §§ 8133
& 8134)
• Schedule awards unpaid at death §
8109
• FECA Death Gratuity (5 U.S.C. §
8102a)
• Agency Death Gratuities (various)
2

Death Benefits under § 8133
• FECA provides death benefits “if
death results from an injury
sustained in the performance of
duty.” 5 U.S.C. § 8133
• FECA provides different percentages
of benefits based on who survives
the employee.
• These benefits are offset by
payments under FERS, but not by
CSRS.
3

How a Death Benefits Claim is filed
• The appropriate manner for a survivor to
initiate a claim for death benefits under
the FECA, as set forth in 20 C.F.R. §
10.105(a),
is to file a Form CA-5 5, Claim for
Compensation by Widow, Widower,
and/or Children. That regulation
specifies that the “survivor must provide
this notice in writing and forward it to
the employer.”
4

Agency Responsibilities
• The supervisor should immediately notify the district office
by telephone or facsimile message, and should file a Form
CA-6, Official Superior’s Report of Employee’s Death, with
OWCP.
• The supervisor should also contact any survivors, provide
them with claim forms (forms CA-5 and CA-5b), and help
them prepare the claim using those forms, which may be
submitted by either the survivors or the supervisor.
• The submittal should include a copy of the death certificate.
It should also include a copy of the marriage certificate if a
spouse is making claim, and a copy of any divorce or
annulment decree if the decedent or spouse was formerly
married. The submittal should include copies of birth
certificates of any children for whom claim is made.
• These forms should be submitted to OWCP even if a
disability claim was previously filed and benefits were paid.
Continuation of benefits is not automatic, as it must be
shown that the death resulted from the same condition for
which the disability claim was accepted.
5

What must be proven for
benefits under § 8133?
• The claim was timely filed.
• The death of the employee was causally
related eatedtot to the ee employee’s poyeese employment
poy e (can either be as a result of a traumatic
injury or occupational disease).
• Must include rationalized medical opinion
demonstrating causation.
• How much causation? ECAB has held “To
hasten death is to cause it.”
6

Timely claim
• Survivors must give written notice to
the employee’s supervisor within 30
days of the date of death.
• The timely filing of a disability claim,
however, will satisfy the time
requirements for a death claim based
on the same injury as long as the
disability claim was filed during the
employee's lifetime.
7

Statutory Exclusions
• OWCP must prove these exclusions (and they must be
raised at the time of initial adjudication), so agencies
should notify OWCP immediately if these exclusions could
possibly apply.
• Willful Misconduct – Such as deliberate and intentional
disregard d of safety rules, as distinguished i i d from careless and
heedless.
• Intoxication –not sufficient just to show that the employee
was intoxicated; it must be shown that the intoxication
proximately caused the injury.
• Intent to Bring About Injury or Death to Oneself or Another.
• Where it appears that the employee brought about his or her own
injury or death, or that of another, intent must be established.
• Suicide may be compensable if the “chain of causation” remains
unbroken.
• Specifically, suicide is compensable if the injury and its consequences
directly caused a mental disturbance or physical condition which
produced a compulsion to commit suicide and prevented the employee
from exercising sound discretion or judgment so as to control that
compulsion.
8

Who is eligible under § 8133?
• The statute sets out an order of
precedence.
• Surviving spouse and any children, not
to exceed 75%
• Dependent parents, not to exceed 40%
• Dependent siblings, grandparents or
grandchildren, not to exceed 30%
• These categories are defined by 5
U.S.C. USC § 8101.
9

§ 8101 Definitions
• Widow or widower: spouse living with or
dependent for support on the decedent at the
time of death, or living apart for reasonable
cause or because of desertion.
• Child: “one who at the time of the death of the
employee is under 18 years of age or over that
age and incapable of self-support support, and includes
stepchildren, adopted children, and posthumous
children, but does not include married children.”
• Parent: “includes stepparents and parents by
adoption.”
• Grandchild: “one who at the time of the death of
the employee is under 18 years of age or over
that age and incapable of self-support.” support.”
10

NOTE
If a widow or widower receiving
benefits under 8133 remarries before
reaching the age of 55, that
beneficiary “shall be paid a lump sum
equal to twenty-four times the
monthly compensation payment[.]” 5
U.S.C. § 8135(b).
11

FECA/FERS Offset
• Any benefits under § 8133 must be offset by that
portion of any benefits paid under Social Security
Act (SSA) that is attributable to Federal
Employment, as this would otherwise be a dual
benefit under 5 U.S.C. § 8116(d)(2).
• As CSRS employees do not contribute to Social
Security, the only employees whose SSA benefits
are attributable to Federal Employment are FERS
employees.
• Accordingly, FECA death benefits paid under §
8133 are reduced by the survivor's benefits paid
under the SSA attributable to the employee's
Federal service.
12

How does OWCP calculate the
FECA/FERS Offset?
• SSA provides OWCP the actual amount of SSA
benefits received by the beneficiaries.
i i
• SSA also provides a hypothetical SSA benefit
computed without the FERS covered earnings.
• OWCP deducts the hypothetical benefit from the
actual benefit to determine the amount of
benefits which are "attributable to Federal
Service." This is the FERS offset.
• That amount is deducted from the FECA benefit
to obtain the amount of compensation payable
per month.
• That amount is then be pro-rated rated per day to
come up with the amount payable every four
weeks.
13

Burial Expenses
• 5 U.S.C. § 8134 provides “up to” $800 for
burial expenses.
• 5 U.S.C. § 8133 gives an additional $200
to reimburse “the costs of termination i of
the decedent’s status as an employee of
the United States.”
• (These payments are deducted from the
$10,000 general gratuity payable at the
discretion of the agency to federal
employees who die in the performance of
duty.)
14

How are these benefits claimed?
• Individuals claiming these amounts
must demonstrate that the death
resulted from an injury sustained in
the performance of duty.
• Claimants may also seek
transportation expenses when the
employee dies from the injury “while
away from his home or official
i station or outside the United States”
under 5 U.S.C. § 8134(b).
15

Schedule Awards Unpaid at Death
• 5 U.S.C. § 8109 states that schedule
awards unpaid at death may be paid
if –
• The employee sustained a compensable
disability.
• The employee filed a valid claim in his
lifetime.
• The employee dies from a cause other
than the injury before the end of the
period specified.
16

FECA Death Gratuity
• New § 8102a provides a death gratuity benefit under
FECA, which h is interpreted t by new 20 C.F.R. Part 10,
Subpart J (final rule effective April 5, 2010).
• Available to beneficiaries of federal employees and
employees of Non-Appropriated Fund
Instrumentalities who die of injuries “incurred in
connection with the employee’s service with an Armed
Force in a contingency operation.”
• Retroactive benefit covers injuries sustained between
October 7, 2001 through h January 28, 2008 for deaths
resulting from injuries incurred in Afghanistan and
Iraq. (Timely if employee filed a prior FECA claim, if
the supervisor knew of the injury or death within 30
days, or if filed by August 18, 2012).
17

When available
• The FECA Death Gratuity ty is available a ab when
the employee dies of “injuries incurred in
connection with the employee’s service
with an Armed Force in support of a
contingency operation.”
• This includes deaths that occur as a result
of occupational disease that arose under
that standard.
• What is a contingency operation?
18

Contingency Operations
• The statute defines contingency operations to
include “humanitarian operations, peacekeeping
operations, and similar operations.”
• Contingency operations may occur outside or
inside the United States.
• If the injury occurs abroad, OWCP will presume
coverage unless there is conclusive evidence
rebutting that presumption.
• In all other cases, the beneficiary must establish
that t the injury arose out of activity it supporting
the operation.
• See 20 C.F.R. §§
10.912-10.913. 10.913.
19

Definition of Beneficiaries
• 5 U.S.C. § 8102a provides special
definitions for surviving beneficiaries
that apply ONLY to that section.
• Includes people who stood “in loco
parentis” to the deceased.
• Includes stepchildren “if the decedent
and the stepchild share the same
principal place of abode in the year prior
to the decedent’s death.”
20

Order of Precedence
• Section 8102a and 20 C.F.R. § 10.907
provide an order of precedence to follow in
determining beneficiaries.
•Spouse
• Children
•Parents
• Siblings
• Employees may vary the order of
precedence by filing a CA-40 with their
employer.
21

Alternate Beneficiaries
• Employees may also use the CA-40 to
designate alternate beneficiaries.
• Alternate beneficiaries e es may be anyone.
• Only 50% of the benefit may be so
designated, and only in 10% increments.
• Beneficiaries MUST be alive at the time of
payment; if not, that share goes to the
next level of precedence.
• See 20 C.F.R. §§ 10.907-10.910. 10.910.
22

Offset of other gratuities
• The FECA death gratuity must be
offset by any other Federal death
gratuity that has been paid at the
time the FECA benefit is paid.
• Gratuities paid after the FECA death
gratuity is paid will not be offset.
23

Which gratuities are offset?
• Federal death gratuities that are offset from the
FECA Death Gratuity include, but are not limited
to:
• $10,000 gratuity payable to the personal representative
of civilian employees
• Section 413 of the Foreign Service Act
• Death gratuity for employees of the Department of
Defense dying outside of the United States
• Death gratuity for employees of the Central Intelligence
Agency
• See 20 C.F.R. § 10.916.
• FECA benefits paid under § 8133 and § 8134 are
not death gratuities that require offset.
24

References
• 5 U.S.C. § § 8101, 8102a, 8133-8135
8135
• 20 C.F.R. § 10.105
• 20 C.F.R. Part 10, Subpart J
• Federal (FECA) Procedure Manual, , Part 2-
0700
• FECA Bulletin 10-0303 (FECA Death
Gratuity)
• FECA Bulletin 97-08 (Dual Benefits)
25

Agency Responsibilities
26

PLANNING YOUR NEEDS
• Who has Passed?
• When to visit with the Family?
• What Do I need to tell them?
• Explaining the Process!
• Giving the Family a Business Card or a
Contact Name and Number!
• Preparing for your visit!
• Let the Family know you will be
working on their behalf.
27

IN SERVICE DEATH
BENEFITS
• Unpaid
• Memo for Admin
Compensation &
Annual Leave
Leave approval for
staff to attend
• FEGLI
services
• Meeting with
• Public Safety
Family
Officer Benefit
• OWCP (Death
• Carriage Clock and
Gratuity Payment) Flag
• Thrift Saving Plan • Unborn Child
• Memo for Funeral
• Other
Home
28

CONTACTING THE FAMILY
• 5Copeso
Copies of Death • Any yCoutOdes
Court Orders
Certificate
(if applicable)
• 1 Copy of Birth
Certificate
• Medical
Documentation of
• Copy of Marriage
Disabled Children
License (if
(if applicable)
applicable)
• Adoption an/or
• Copy of Birth
Guardianship
Certificate of
Papers (if
Children (if
applicable)
applicable) • Court Appointment
Documents of
Executors
29

Required Documents
• Death Certificates
• Certified in all
(5)
cases
• Marriage
Certificates
• Provide Copies of
all Certificates
• Child(ren)’s Birth
• Recommended for
Certificate
all children for
whom you are
applying for
benefits.
30

Required Documents
• Social Security
• Need for all minor
Cards
children and if
spouse is under 60
and is currently
eligible for mother,
father, or disability
benefits from
Social Security
• If you don’t have it
could delay
processing.
31

DOCUMENTS REQUIRED
• Court Papers • Required if you are
appointing an
executor/
administrator
applying as executor
or administrator of
deceased person’s
s
estate.
• Court papers
appointing guardian
for minor or disabled
child(ren)
• Required if you are
applying on behalf of
minor or disabled
children of the
deceased and
guardian has been
appointed by the
court.
32

DOCUMENTS REQUIRED
• DD 214’S SO
OR • Provide if you are
OTHER MILITARY
DISCHARGE
CERTIFICATES
applying as a
surviving spouse or
former spouse, and
• the deceased was
a former employee
at the time of
death.
Failure to attach
the information
may delay the
processing of your
claim.
33

Standard Form 3104A
• Survivor • Complete this form
Supplement
if deceased was
retired at the time
of death.
• To be completed
by surviving
spouse if he/she is
under age 60 and
the deceased had
at least 5 years of
creditable civilian
service.
34

Standard Form 3104B
• Certified ed Summary • Utilize all DD Form
of Federal Service
214’s and SF-50’s
to document the
Federal Service the
deceased had.
This will include
Appointments,
Separations, or
Conversion Dates
for Civilian and
Active Honorable
Military Service.
35

Health Benefits Elections
• If the surviving spouse of a deceased
employee is not eligible for monthly
survivor annuity benefits (because
employee had less than 10 years of
creditable service) he or she can still
elect to continue health benefits
coverage provided:
• * the survivor is eligible for the Basic
Employee Death Benefit and
• * the employee was enrolled under the
Federal Health Benefits (FEHB)
program with self-and
and-family coverage
t th ti f d th
36

Survivor’s Military Service
Election
• Spouse might be eligible for survivor
annuity. But must make a deposit
for the deceased employee’s post
1956 military service.
• * must make payment within 30
days after the agency notifies the
survivor of the amount due.
• * they can change their mind prior
to the deposit being actually paid to
the agency.
37

Death Benefit Payment Election
Form
• The spouse can elect to receive
payments:
• Lump sum OR in 36 Installments
• Option 1 – Pay benefit to survivor
• Option 2 - Roll over all or part of
eligible benefit into an IRA, eligible
employer plan, or Thrift Savings Plan
account.
• Option 3 – don’t want to make an
election now.
38

Agency Information &
Certification
• General
• Retirement System
Information
coverage?
(FERS/CSRS)
• Type of death
benefit
• (Monthly Survivor
Annuity, Basic
Employee Death
Benefit Lump Sum,
or Payment of
retirement
contributions.
39

Agency Information &
Certification
• Federal Employee’s • Has decease
Compensation
Information
employee ever
applied for or
received benefits
from OWCP,
because of a job-
related illness or
injury?
• Need
Compensation
Number, dates
benefits received
40

Agency Information &
Certification
• Federal Employees
• Enrolled?
Health Benefit & • Enrollment code?
Group Life
• Surviving Spouse
Insurance
eligible for
Information
benefits?
• FEGLI coverage?
• Options of
Coverage (Option
A, B, C or No
optional coverage)
41

Agency Information &
Certification
• SF 3104 – • Unless not covered
Application for Death
under an FEHB plan)
Benefits (Required)
• SF 2809s –
Employee Health
Benefit Election
Forms (Required)
• DD 214 – Military
Discharge
(Recommended in
all cases with
military service)
• SF 2810s – Notice of
Change in Health
Benefits Election
Form (Required,
• SF3104B, Section 1
– Certified Summary
of Federal Service
(Required)
42

Agency Information &
Certification
• SF 3104B, Section
• Required in all
2 – Basic Employee
Death Benefit
cases where a
Basic Employee
(BEDB)
Death Benefit is
payable
• SF 3104B, Section
3 – Health Benefits
Election
• Required in all
cases where a
Basic Employee
Death Benefit is
payable and a
survivor annuity is
43

Agency Information &
Certification
• SF 3104B, Section 4 –
Information and
Elections Regarding
Post-1956 Military
Service
• SF 3104B, Section 5 –
rollover Option
Information for Lump
Sum Benefits Payable to
Surviving Spouse or
Surviving former Spouse
• Required in all cases
with military service
after 12/31/56 for which
employee did not
complete deposit and a
survivor annuity is
payable.
• Required in all cases
with Basic Employee
Death Benefit or if
employee contributions,
excess retirement
deductions or voluntary
contributions are
payable to the surviving
spouse/former spouse.
If not completed,
payment may be
44

Agency Information &
Certification
• Death Certificate • Certified copy required
in all cases
• Marriage Certificate
• Children’s Birth
Certificate
• Medical Documentation
(disabled d children)
• Adoption papers
• Required for all married
employees
• Required for all minor or
student children
• Required for all disabled
children
• Required if applicant is
an adopted child
45

Agency Information &
Certification
• Guardianship pp papers p • Required if a court
appointed guardian
is established for
eligible children.
• Court Appointed
documents for
executor
/administrator of
estate
• Social Security
Number(s) for all
applicants
• Required if court
appointed
administrator /
executor has been
appointed and no
annuity is payable.
• Required in all cases
46

Claim for Death Benefits
(FEGLI)
FEGLI Benefits are
not subject to
Federal Income
Tax, but the
interest that
OFELGI pay on
those benefits are
subject to such
tax.
Interest will be
reported to IRS
47

Claim for Death Benefits
(FEGLI)
• FEGLI Death
• Order of payments
Benefits are not • 1. beneficiary the
subject to Federal
assignee validly
Income Tax
designated
• However, the
interest is taxable.
• All interest
payments are
reported to IRS.
• 2. If none, to the
assignee(s) by
court order
• If no court order,
then
48

Claim for Death Benefits
(FEGLI)
• 1. To beneficiary(ies) the deceased
validly designated.
• 2. if none, to the deceased’s s widow
or widower.
• 3. If none, to the deceased’s s child or
children and descendents of any
deceased children
• 4. If none, to the deceased’s
parents in equal shares, or the entire
amount to the surviving parent.
49

Claim for Death Benefits
(FEGLI)
• 5. If none, to the court-appointed
executor or administrator of the
deceased’s s estate.
• 6. If none, to the deceased’s next of
kin, entitled under the laws of the
state where the deceased lived.
50

Death Benefits Payout (FEGLI)
• If more oet than • Open a money
$5,000
market account in
spouse
(beneficiary’s)
name and mail the
checkbook.
• Can write checks
for part or all of
the monies.
• If less than $5,000
• Will mail you a
check.
51

Death Benefit Payments
(FEGLI)
• Must Submit a
• Executor or
Certified Copy of
Death Certificate
Administrator must
submit a copy of the
court appointment
t
• An English
papers.
Translation of any
foreign language
• Send all to:
death certificate
• OFEGLI
• Submit all
Designation of
Beneficiary Form(s)
SF 2823 d SF
• P.O. Box 2627
• Jersey City, NJ
07303-2627
52

REPORT OF PUBLIC SAFETY
OFFICER’S DEATH
• OMB FORM 1121-0025
• Part 1 – Notice of Line of Duty
Death of Public Safety Officer
• For Law Enforcement,
Corrections Officer, Probation
Officer, Parole Officer, Fire
Fighter, Judicial Officer,
Ambulance and Rescue Squad
Member, Other
• Release of Information form
• May require coroner’s
report/death
certificate/Autopsy Findings
• Address the injury and time of
death information
• Send documents to:
• Public Safety Officers Benefits
(PSOB) Office
• Bureau of Justice Assistance
• 810 7 th Street, NW
• Washington, DC 20531
• Paid: $303.064 064 (If parents
are separated ½ will go to
each parent. If one parent
cannot be located, then ½ will
be held back until the parent
can be located or a death
certificate is provided.
53

Claim for Compensation of
Deceased Civilian Employee (SF
1153)
• Ensure you
• Have beneficiary
employee
completes the SF-
provide a Direct
Deposit Sign-up
1152, Beneficiary
form (SF 1199A)
for Unpaid
Compensation
• Have knowledge if
Funeral Expenses
have been paid for.
54

Form TSP-17
– Information
Relating to Deceased Participant
i
• This form asks
• Completed forms
questions about
the Deceased and
need to be mailed
to TSP Death
the beneficiaries
and additional
family members.
Benefits Processing
Unit, Fairfax Post
Office, DEDIS –
P.O. Box 4450,
22038-
• Must include a
Fairfax, VA certified copy of
9998
death certificate
55

Veteran’ Administration
• Public Law 110-157, 157, • Upon request a
signed December 26,
2007 authorized the
VA to:
medallion or other
device of a design to
signify the deceased’s
status as a veteran
• Furnish a Government
Headstone or marker
for the grave
• No charge for the
headstone or marker
itself, however
arrangement for
placing it in a private
cemetery are the
applicant’s
responsibility and all
setting fees are at
private expense
56

Veteran’s Administration
• Information
• Date and Place of
needed:
Birth
• Full Name and
Military Rank
• Branch of Service
• Social Security
Number
• Service Number
• VA Claim Number
(if applicable)
• Date and Place of
Death
• Date of Retirement
or last Separation
from active duty.
• Copy of any
military
documents, such
as DOD form 214
(DD-214)
57

Correctional Peace Officers
• Catastrophic
Assistance
Program
• Application for
Assistance (Death
Only)
Foundation, Inc
• Contact Person in
California is Kim
Blakely,
l
• (916) 539-0716
58

Claim for Compensation by Widow,
• CA-5
Widower, and/or Children
• Will require a
Physician Report
• May require an
Autopsy Report
and/or address of
the office doing the
autopsy.
59

Death Gratuity Payment
Authority
• OPM Benefits
• Gives Department
Administration
Letter, 96-109,
Heads and Agency
Heads the
dated October 16,
1996.
authority to pay up
to $10,000 as a
death gratuity to
• Created by Public
the personal
Law 104-208
representative of
an employee who
dies from an injury
sustained in the
line of duty.
60

Death Gratuity Payment
Authority
• This Death Gratuity is
payable by the agency.
• This Death Gratuity is
subject to the following
o amounts that may be paid
by OWCP:
• - $200 payable under 5
U.S.C. § 8133(f), for
reimbursement costs of
termination of the
decedent’s status as an
employee of the United
States.
• Contact your agency’s
workers’ compensation
specialist to determine if
OWCP has paid these
amounts.
• For further information,
contact OWCP’s Branch of
Technical Assistance at
202-693-0044.
• - Up to $800 payable
under 5 U.S.C. § 8134(a),
for funeral and burial
expenses .
61

TASER FOUNDATION
• Distributes financial • Contact Information:
memorial grants to
• Kathy Hanrahan (at
the families of fallen
Kathy@Taser.com
officers in the United
• Or call 800=-978
978-
States and Canada.
2737, extension
• Honor the service
2012.
and sacrifice of local
l
• Or
and federal law
www.TASERFoundati
enforcement officers
on.org
org
lost in the line of
duty by providing
financial support to
the families of fallen
officers.
62

QUESTIONS?
Contact Information
Gregory C. Porter, HRM
(209) 386-4651,
gporter@bop.gov
Jim C. Gordon
(202)693-5320,
gordon.jim@dol.gov
63