Research Notes

Unpredictability of OWCP decisions in FECA claims creates uncertainty that hurts productivity and employee morale.

In our practice representing federal employees, we find it is one thing to know the law and quite another to watch how it is administered.

This is particularly true in the area of FECA – workers’ compensation claims for federal employees under the Federal Employees’ Compensation Act. We have written recently about the problem of administrative decisions that seem to make no sense, logically or legally, but which can nevertheless have devastating effects on our clients. This is especially true where the administrative process violates basic constitutional principles of due process of law. Here are a few recent examples of practices by the U. S. Department of Labor (USDOL) and its Office of Workers’ Compensation Programs (OWCP) that thwart the purposes of the law.

  • Case #1: OWCP recognized that an injured worker was entitled to an award for permanent partial loss of use of his arm, but the claims examiner refused to process the payment because the worker was also entitled to awards for other body parts, and those awards had not yet been calculated. The claims person said he wanted to “process them all at the same time” — but meanwhile the injured worker gets paid nothing (with no interest or penalty for the delay).
  • Case #2: OWCP’s message system created havoc. The system allows a caller to leave a voicemail with details of the client, case number, and reason for the call. But when attorneys leave such messages, OWCP claims examiners don’t bother to listen to them, instead opting to just call up the injured worker. The worker, of course, isn’t always aware of the call or why it was placed; so the worker gets panicked and confused and the claims examiner wastes time.
  • Case #3: OWCP accepted a claim but refused to pay lost wage benefits for periods when the client was on (unpaid) Family Medical Act leave. The law says wage loss benefits can’t be paid for periods when the worker is on paid leave, but this distinction is somehow lost on the claims examiner.
  • Case #4: OWCP accepted a claim and was paying wage-loss benefits for 6 hours per day for periods after the employer offered light duty for 2 hours per day. A claim for total (8 hours per day) wage-loss benefits for prior time off was denied on the basis that the employer made the light duty job offer and the employee rejected it — but it’s obvious that that job offer was not made until after the period in question so the employee could not possibly have rejected it..
  • Case #5: In a related type of case that seems to be recurring more often, OWCP accepts a claim but refuses to pay wage-loss benefits on the basis that the employer – after the fact – says it “would have” made a job offer earlier. In several such cases, the injured worker provides documentation that s/he asked for work repeatedly, only to be ignored or turned down by the same employer; but the OWCP claims examiner always seems to believe the employer’s self-serving statements in this situation. Result: lost wage benefits are denied in violation of the law, based on obviously flawed logic.

Do these practices seem fair to you? In my opinion these claims-handling methods do not assist in reaching a fair resolution for any stakeholders in the system and cannot be justified. They create unnecessary financial hardship in a system that does not provide for interest or attorney fees to be added to benefits when payments are delayed. Employees hear about them and lose confidence they will be compensated if they get injured. Employers see opportunities to “game the system” and take advantage. Claims handling procedures are well beyond the reach of the courts, which have no jurisdiction even over challenges to formal decisions in such cases. When there is no incentive for the government’s self-insured system to work properly, and no real accountability for OWCP employees using such tactics, there is no adequate remedy for the injured worker.


NOTE: Congress recently passed laws that limit the civil service rights of VA employees. Many feel such changes are the “tip of the iceberg”, signaling similar erosion of federal employee rights generally. The problem, of course, is that federal employees do important work for the country and must be shielded from the whims of the current political climate — regardless of which party is in power.

Posted in Blog, FECA, OWCP

ECAB continues to issue inscrutable decisions in FECA claims

ECAB continues to issue inscrutable decisions in FECA claims that mask due process constitutional problems.

It is frustrating, to say the least, for attorneys to get administrative decisions that seem to make no sense, logically or legally, when those decisions adversely affect their clients. This is especially true where the administrative process violates basic constitutional principles of due process of law. Here are a few recent examples of U. S. Department of Labor (USDOL) decisions involving the Federal Employees’ Compensation Act (FECA – workers’ compensation for federal employees) that implicate constitutional violations at USDOL.

In two of our recent appeals, DOL’s Employees’ Compensation Appeals Board (ECAB) made decisions that turned a blind eye to blatant unfairness imposed on the injured workers.

In the first case, our client filed a claim for a traumatic back injury, it was denied by DOL’s Office of Workers Compensation Programs (OWCP), and she filed an appeal with ECAB.  ECAB said the medical report from the primary treating physician was not good enough, but did not cite any flaws whatsoever in his report and in fact quoted extensively from his lengthy discussion of the medical rationale supporting his opinion that the injury contributed to the herniated disc she suffered. ECAB sent the case back to OWCP for “further development”. OWCP sent her to a government-chosen doctor who said the injury did not contribute to her back problem. OWCP denied the claim again, without even mentioning the treating doctor’s report. So we filed another appeal with ECAB, which then ruled (1) the government’s doctor’s report was sufficient to deny the claim, (2) it had already decided that the treating doctor’s report was not good enough so they would not look at it “again”. We then filed a Petition for Review at ECAB, arguing that the Board never cited any flaws in the treating doctor’s report and was letting OWCP ignore his report for no reason.  ECAB then denied our Petition, saying that since OWCP had not discussed the treating doctor’s report in its most recent denial decision then the Board “cannot” look at that report since it is “res judicata” (an already decided issue).  In fact, the Board is empowered to make final decisions on all issues in FECA cases, and is not limited to facts found by OWCP or even the issues decided by OWCP.

In the second case, after an industrial injury our client was offered a light duty job; he responded asking questions about the job and expressing concerns about whether he could safely perform the job duties.  His employer never responded.  OWCP proposed to terminate his wage-loss benefits based on the job offer; in its letter OWCP did not mention any response the employer had made to his questions and concerns. OWCP then terminated benefits based on availability of the light duty job, again not mentioning any employer response. We filed an appeal with ECAB.  The Board ruled that, based on an employer response to his concerns, the job was within his medical capability. We then filed a Petition for Review with the Board, arguing that (1) this employer response was never sent to us or our client when the benefit termination was either proposed or effected, (2) had our client known about this response he would have accepted the job offer, and (3) it is fundamentally unfair to make such a decision without advising the injured worker of all the facts. In denying our Petition, the Board said that the employer’s response was “in the record” so there was no due process violation, or at least counsel had not explained how there could be one. In fact, our entire Petition was a detailed discussion of why OWCP’s failure to provide the employer’s response – or even reference its very existence in any way – was a denial of basic due process.

Do the decisions summarized above look fair to you? Administrative decisions made by OWCP and ECAB in FECA cases cannot be appealed to federal court — except where the constitutional rights of the injured workers are denied. Due process of law is a constitutional right of all citizens.  If USDOL persists in making decisions like those above, attorneys will be exploring court challenges to them in order to inject more basic fairness into this process.

Posted in Blog

OWCP clarifies schedule award procedures

OWCP clarifies schedule award procedures, including how pre-existing or nonindustrial medical conditions affect these important permanent disability awards.

There have been persistent problems in Federal Employees’ Compensation Act (FECA – workers’ compensation for federal employees) cases in the amount of awards for permanent impairments.  Under the law, there is no “apportionment” – that is, if the employment contributed to any degree to the medical condition causing the disability, the entire disability is covered in full.

But OWCP claims examiners and their examining physicians have for years been calculating some awards based only on the work-related portion of the disability or impairment.  For example, a worker with pre-existing arthritis in his right knee who injures it at work, requires surgery for a torn meniscus, and now has more knee impairment due to both medical conditions would be incorrectly evaluated with regard to the surgical result only, ignoring the arthritis which is also affecting his knee and contributing to a higher level of impairment.

That has never been correct, and has resulted in large numbers of appeals that had to be filed just to point out that there is no apportionment in these cases and therefore the awards should be higher. After repeated complaints about this from our office and others, USDOL has finally clarified the issue.

In FECA Transmittal No. 17-02 issued on March 24, 2017, OWCP revised its Procedure Manual to clarify a number of things regarding permanent disability schedule awards:

  1. When OWCP’s District Medical Advisor (“DMA” -a doctor) disagrees with its Second Opinion doctor on an issue, this disagreement doesn’t create a conflict in medical evidence requiring yet another evaluation.
  2. When OWCP has already sent the injured worker to a referee (independent) medical examiner, there is no need for the government to have the DMA review the referee’s opinion.  Referees see injured workers where the treating doctor and the government ‘s doctor disagree  This change only applies, however, when the referee’s report fully resolves the earlier conflict in medical opinions and provides a through explanation of the medical impairment.
  3. There are no provisions for apportionment in FECA, so impairment ratings should include both work-related and non-work-related impairments to the affected body part.

The third item above is the most important one.  This should result in larger and more timely schedule awards for injured federal workers where, before, errors had been made in the award calculation that resulted in appeals and other challenges.  If the awards are going to be calculated correctly, we can avoid costly appeals and the correct (higher) amount of benefits can be paid in a timely manner.

Further, this change clarifies that the disability rating must include all conditions affecting the affected body part as of the time of the rating examination.  This means that, theoretically, a worker could suffer another injury after the industrial one but before the rating exam, and the effects of that extra injury would also have to be included in the rating. It also means that the effects of any other non-industrial injuries have to be included in the rating as well.

 

All this makes sense administratively in a non-adversarial system. Litigation in other workers’ compensation systems is often complicated by the need to apportion disabilities, ascribing a percentage to different causes — but those are adversarial systems where both sides have attorneys and a judge makes the decision. FECA is not designed as an adversarial system that could handle such disputes. It also of course makes sense legally, since the rule against apportionment means there is no need to attribute percentages to the various causes. Practically speaking, it is difficult anyway for a doctor to determine how much the knee (in the above example) was affected by more than one cause.

The other two items above are unobjectionable and should result in faster adjudication of such claims.  Considering how slow OWCP is to finalize so many actions on FECA claims, this could speed up some claims.

There are other types of awards for permanent injuries in FECA claims, including lost wage benefits for both total and partial disability, but those are not affected by this change in the Procedure Manual.


NOTE: So far, the new Congress has not made any legislative proposals affecting FECA. We will continue to monitor this situation and report on any developments.

Posted in Blog, FECA

A string of positive ECAB decisions may signal a trend toward more fair appeals rulings in FECA cases.

Over the past few months we have received about a half dozen positive decisions from the Employees’ Compensation Appeals Board in Washington in cases filed under the Federal Employees’ Compensation Act (FECA).  A quick summary of some of them can give an idea of why we think this might be significant.

In I.D. and USPS, ECAB Docket No. 2016-0581 (12/12/16), ECAB ruled that an employee’s emotional reaction to sexual harassment plus the employer’s failure to investigate her complaints about it was work-related — even though she and one of the supervisors involved had previously been in a consensual sexual relationship and the supervisor, with the female employee’s knowledge, had made a video of them engaging in a sexual act.  After the relationship ended, the supervisor then brought the video to the workplace and showed it to other employees, with the result that many workers saw it and she became distraught and unable to work there. OPINION: This decision shows the Board is willing to look beyond obvious facts, such as the consensual nature of the prior relationship, to consider how the employment contributed to the disability under a specific set of facts.

In T.M. and Dept. of Interior, ECAB Docket No. 2016-1262 (01/11/17), ECAB ruled that OWCP had improperly denied disability benefits for a 7-year period.  The employee had slipped on ice and struck her body against a car in 2006, and resigned from her position a few months later. OWCP had initially accepted only a lumbar strain as work-related, despite an MRI showing dislocated cervical vertebrae, had later accepted aggravation of DDD and depression as work-related, but had [improperly] denied benefits on the basis that she had voluntarily resigned. The Board held that, since OWCP had not gotten clarification from its Second Opinion medical examiner about a change in the work restrictions, it had not developed the record “in a fair and impartial way”, and could not just deny benefits when a crucial issue had not been developed. OPINION: This case shows the Board is willing to insist on fairness in the OWCP decision-making process – it even mentioned “justice” in its decision.

In T.L. and Social Security Admin., ECAB Docket No. 2016-0672 (08/24/16), ECAB ruled that OWCP had terminated, and the Branch of Hearings and Review had upheld, an improper termination of benefits for an SSA claims representative based on her refusal of a limited-duty job.  The Board found there was conflict in medical evidence about whether the job offered was suitable in light of the work restrictions.  It also found that OWCP had not considered all the employee’s work restrictions, whether work-related in origin or not, as is required. OPINION: This case shows the Board will look closely into the bases for OWCP decisions and reverse them where appropriate.

In P.P. and USPS, ECAB Docket No. 2015-0522 (06/01/16), ECAB ruled that the employee with pre-existing Parkinson’s Disease had proved he suffered a traumatic injury (fractured hip) on the job when he stepped over and to the left of a “wet floor” sign, lost his balance and fell. OWCP had denied the claim, saying no employment object had intervened with the fall. One doctor said the employee had to step around the sign an awkward manner and that contributed to the fall. Another doctor said having to work overtime that day contributed to a worsening of his neurological condition, causing increased gait and balance problems. The Board ruled this was not an “idiopathic” fall, which would not be compensable, but rather was an “unexplained fall”, which is.  It ordered the case back to OWCP to determine the extent of injury and disability. OPINION: This case shows the Board will require OWCP to prove “idiopathic” falls, and where it fails to meet that burden of proof the claim will be accepted.


NOTE: It is unclear how the just-announced federal hiring freeze will play out in the federal sector. Exactly which agencies will it apply to?  Does it apply to civilian employees of military departments?   Does it apply to the Postal Service, whose employees no longer technically work for the federal government?  Will it make federal managers hesitate to fire bad-performing employees, knowing they will not be able to replace them?  Does it mean that the Merit Systems Protection Board in Washington DC, which currently lacks a quorum to issue decisions, will be out of business indefinitely?

Posted in Blog

How the Social Security Administration paid $30,000 for a $75 space heater for one of its employees

This is a story of how bureaucratic intransigence and, one could say, stupidity resulted in prolonged hardship for a federal employee and unnecessary expense to the U. S. taxpayer.

An employee of the Social Security Administration (SSA) – an administrative judge who renders decisions on Social Security Disability (SSDI) claims – was using a space heater in her cubicle to combat the symptoms of her osteoarthritis. She had permission from her boss, the chief judge, to do so, and this worked fine for about a year. She needed the space heater so her hands would not become stiff and painful, which made it very hard for her to do things like handle documents and concentrate on her work.  Her doctor had even written a note, which her supervisor had been given, saying she needed the space heater because of her osteoarthritis.

Then her boss retired, and a new chief judge arrived on the scene. He noticed our client’s space heater, and soon thereafter in February 2015 he issued a memo saying no one at the office could use a space heater. Our client then showed him the letter from her doctor saying she needed to use it, but he refused to honor it and ordered her to remove the space heater from her office immediately.

Our client filed an employment discrimination complaint based on disability. In response, SSA told her various false and inconsistent things, including:

  1. osteoarthritis is not a disability (even though federal anti-discrimination laws and SSA’s own regulations regarding SSDI claims say the opposite)
  2. space heaters are not allowed per the terms of GSA’s lease of the office space from a private party (even though that private party’s management company provided another lessee with a space heater to use)
  3. her boss has no authority to grant permission to use the space heater
  4. her boss is the only person who could grant permission to use the space heater
  5. her prior boss’s letting her use a space heater was not a “formal” accommodation, so SSA had not withdrawn a prior reasonable accommodation
  6. use of a space heater is against SSA policy (even though that policy had an exception for reasonable accommodations), and
  7. she should try other ways to keep warm such as wearing gloves (have you ever tried typing with gloves on?)

This month, our office settled the discrimination complaint.  The basic terms of the settlement were that SSA would provide our client with a space heater (which cost SSA $75) as a reasonable accommodation to her disability, would pay her $15,000 for her pain and suffering for having to work in pain for over a year and a half without a space heater, and would pay $15,000 in reasonable attorney fees.

We found it frankly baffling and quite ironic that a chief administrative judge who himself was a disability expert would take the inexplicable position that osteoarthritis “is not a disability” and therefore our client was not entitled to protection, including the right to reasonable accommodation, under the anti-discrimination laws. We found it discouraging that the attorney representing SSA went along with this nonsense for over year before offering a reasonable settlement, making various excuses like how long it would take to get authority to settle from someone high enough in the SSA’s chain of command.

Even more confusing was the fact that SSA had already fought this battle (a space heater as a reasonable accommodation) in two other cases and lost – cases we cited to SSA’s attorney months before the settlement. Meanwhile, litigation costs and our client’s frustration mounted.

Moral of the story — Never underestimate the lengths to which some bureaucrats will go to obfuscate issues and defy logic in attempting to justify a wrong-headed decision.


NOTE: ECAB recently ruled that OWCP has not been making consistent decisions in awarding permanent disability ratings under FECA on arm impairments, and has ordered OWCP to revise its procedures to do so.  See T.H. and USPS, ECAB Docket No. 14-0943 (11/25/16).

Posted in Blog

FECA practitioners merge into one unified bar group

At the annual convention of WILG (Workers’ Injury Lw and Advocacy Group) in Arizona last month, the country’s two groups of attorneys who represent FECA (Federal Employees’ Compensation Act) claimants completed their merger and became one group – the FECA Section of WILG.  WILG is the nation’s only “stand-alone” professional association of attorneys who represent injured workers in their workers’ compensation claims. WILG has well over 1,000 members, and members practicing workers’ compensation law in every state and in every federal jurisdiction.

The significance of this development is that, for the first time, the interests of injured federal workers can be spoken for with one voice — that being a voice with a presence on Capitol Hill and an ongoing dialog with those at the U. S. Department of Labor who run the FECA system.

At the Arizona convention, FECA attorneys from across the country assembled, gave presentations, and interacted with other stakeholders in the FECA system, including two representatives of the USDOL National Office from Washington, DC, a local Arizona doctor involved in these cases, and a federal employee union leader also from DC.

Topics covered on FECA included a review of the year’s most significant cases handed down by the Employees’ Compensation Appeals Board (ECAB), hearings and appeals procedures, the role of unions in FECA, medical issues, attorney fees, financial planning for federal employees, the Renzi case, and a “report from the inside” presented by high-level USDOL personnel.

My partner Daniel Goodkin presented a detailed statistical analysis of ECAB decisions issued over the last two years, showing alarming trends which have been discussed here in prior newsletters (e.g., treating doctors never being given the benefit of the doubt over the government’s Second Opinion doctors).  I presented a summary of developments in DC regarding FECA, including legislative proposals and my meetings with USDOL personnel this year.

Dan and I also received Special Recognition Awards from WILG for our work on behalf of the FECA Section, including the merger mentioned above.


NOTE 1: OWCP has taken some action on the compounded medications issue mentioned in our last newsletter, and is planning to do more. Word is that they will follow the lead of other insurers like TriCare and impose limitations on payments for these personalized medications in light of both their extremely high cost and serious questions about their medical efficacy.

NOTE 2: A recent ECAB case in which the Board’s majority did not rule in favor of the claim, but in which Chief Judge Christopher Godfrey issued a strongly-worded dissent, got top billing on the ECAB review segment — more on that case later.

Posted in Blog, FECA

Another small step in the right direction at ECAB

We recently received a decision issued by the Employees’ Compensation Appeals Board (ECAB) that might signal its willingness to look more carefully and critically at how the Office of Workers’ Compen-sation Programs (OWCP) makes decisions in Federal Employees’ Compensation Act (FECA) cases.  The decision just sent the case back to OWCP for further action, but it stands for the proposition that OWCP has a duty to develop the record when the employer fails to respond to questions from OWCP about a claim. 

In the case, L.B., guardian of A.V., and U.S.D.O.J, Bureau of Prisons, Docket No. 15-0905 (September 19, 2016), the employee committed suicide in 2012 at the federal prison where he worked, following stressful events he suffered as a prison guard.  In one incident he was cornered in a jail cell by several inmates, one of whom had a home-made knife and who threatened to kill him.  We filed a claim for death benefits on behalf of the deceased employee’s minor son.  In a September 2014 decision, OWCP denied the claim because “the specific incident of being cornered by inmates in October 2011 was not verified by any of the evidence received in file.”  In fact, OWCP had written to the prison on two occasions about the claim, asking questions about the alleged incident(s), and got no reply to either letter.  So instead of insisting on a reply, OWCP just denied the claim.  The law is clear that, when information relevant to a claim is in possession of the employer, it must produce it in this “non-adversarial” system of workers’ compensation.   Question: If you were the employer, and you knew that by simply ignoring OWCP’s letters about an injured worker’s claim it might just be denied, why would you ever respond?

We then filed an appeal with ECAB.  The appeal brief, written by my partner Daniel Goodkin, reviewed the evidence in support of the claim in detail, including contemporaneous medical evidence mentioning the prison incidents and showing the chain of causation linking the stressful work events and the suicide.

The Board’s decision reviewed all the facts in detail and re-stated the law, namely that OWCP must develop the record rather than just denying the claim under such circumstances. 

The Board directed OWCP to “obtain additional information from the employing establishment, including information about the employee’s alleged work and incidents or conditions that might have caused him stress prior to his death. …”  The Board implied, by citing the OWCP Procedure Manual about making a decision when the employer does not respond to questions, that OWCP can accept the statements of the facts relayed to others by the deceased before his death when evaluating “the totality of the evidence”.

While the Board did not award benefits, it made the right decision here since the record in this case was not fully developed. Is this a harbinger of good things the Board might do in the future?


NOTE: There is a continuing scandal involving FECA and compounded medications (personalized medications for patients), since these medical expenses have increased tremendously since 2013 and the costs are depleting the Employees’ Compensation Fund with little oversight.  More on that later.

Posted in Blog

Here are some of the subtle ways the U. S. Department of Labor (USDOL) puts roadblocks in front of injured workers

Here are some of the subtle ways the U. S. Department of Labor (USDOL) puts roadblocks in front of injured workers who file claims under the Federal Employees’ Compensation Act (FECA).

In this supposedly non-adversarial system of workers’ compensation, how would you describe these tactics used by USDOL’s Office of Workers’ Compensation Programs (OWCP)? Do they seem adversarial to you?

  1. Selecting referee doctors, whose opinions have extra evidentiary weight in these cases, from a secret list OWCP refuses to make public even in the face of litigation under the Freedom of Information Act.
  2. Failing to tell second opinion doctors, chosen by OWCP to clarify medical issues, about the liberal legal standard for proving causation in FECA claims (any contribution, no matter how small, makes the claim compensable).
  3. Failing to resolve disagreements among medical examiners, instead simply choosing the unfavorable opinion over the favorable one, despite its obligation to resolve medical conflicts.
  4. Excluding from case files the medical reports of doctors it has chosen – as if they had never seen the patient – if their reports are favorable to the claim.
  5. Refusing to assist injured workers in finding doctors who are willing to treat them at government expense, despite knowing that very few doctors will do so due to the paperwork demands imposed by OWCP.
  6. Requiring doctors who wish to treat injured federal workers at government expense to obtain a “provider number” by going through a time-consuming registration process that few doctors are willing to bother with.
  7. Maintaining a website OWCP points to as a place to locate possible treating doctors, but not identifying the specialties of those doctors to facilitate a choice.
  8. Failing to send copies of correspondence to the lawyers of injured workers, in spite of the right of those workers to legal representation.
  9. Making claims decisions based on documents or information that was not provided to the injured worker or his/her lawyer in advance.
  10. Making claims decisions without considering medical or other evidence filed, claiming never to have received it (despite proof to the contrary) or failing to simply ask for another copy.
  11. Allowing employers to communicate with OWCP via email but not allowing the same easy communication access to injured workers or their attorneys.
  12. Allowing employers electronic access to OWCP claim files but not allowing the same instant access to injured workers or their attorneys.
  13. Letting their very limited online access to summary information about claim files fall into inoperable status since August 2015 (and continuing), preventing injured workers and their attorneys from getting even basic information.
  14. Ignoring their 3-day time limit to respond to phone messages by re-setting the three days each time someone calls due to their previous non-response.
  15. Ignoring their 30-day time limit to respond to letters by re-setting the thirty days each time someone sends another letter due to their prior nonresponse.

Does this look like a non-adversarial system of workers’ compensation?


NOTE: OWCP has not yet responded to the Public Citizen petition filed in June requesting that the AMA Guides 6th Edition no longer be used to determine permanent impairment ratings.

Posted in Blog, FECA, OWCP

Here’s just one more horrible decision

Here’s just one more horrible decision (they keep coming) issued by the U. S. Department of Labor (USDOL) in its Federal Employees’ Compensation Act (FECA) program

These decisions keep happening – you can’t make this stuff up!  No wonder OWCP is being sued for violating basic constitutional rights in these cases…

In this one, our client injured her back in 2012.  Her traumatic injury claim was denied by OWCP in March 2013, based on her having a pre-existing condition. We filed a new claim for a cumulative trauma occurring over a period of years of lifting on the job. It was denied again in March 2014, based on insufficient medical evidence linking her disability to work events. We submitted a new July 2014 report in which her treating doctor provided more than 25 lines of discussion on this topic (i.e. how her worked caused a disc herniation, how she was without symptoms before the accident, etc.).  OWCP denied the claim again in March 2015, saying the treating doctor’s report wasn’t supported by medical rationale “containing an explanation of the nature of the relationship between her diagnosed condition and specific employment factors”.  Actually, the doctor stated that bending over to pick up paper from the floor near a printer “puts the lumbar spine at a mechanical disadvantage. This shifts the fulcrum of the weight to the lumbar spine and the paraspinal musculature versus being on the larger joints and muscles of the pelvis. This change of force in my medical opinion exacerbated her underlying pathology causing the disc herniation.”

We appealed to the Employees’ Compensation Appeals Board (ECAB) in Washington, DC, which issued an August 2015 decision agreeing with OWCP, saying that this medical evidence was “not sufficient to discharge [her] burden of proof”, but was sufficient to “require further development”.  The Board said that her doctor “gave an overview of [her] history of pre-existing conditions, described the October 15 2012 incident and explained in biomechanical terms how it caused or aggravated her current condition, and explained the need for repeat surgery shortly thereafter.”  It further quoted her doctor to the effect that prior to the injury she had minimal symptoms and was able to perform her daily activities, whereas immediately after the incident she “had the acute onset of radicular symptoms of pain and numbness of her left lower extremity which progressed to weakness. This history is suggestive of an acute herniation of nucleus pulposis which was verified by [magnetic resonance imaging].”  Question: Exactly what was wrong with this report?  The Board never identified any defect in the report, but just directed OWCP to refer her to another doctor for exam and a report “regarding her condition and possible aggravation of pre-existing conditions due to the incident of October 15, 2012.”

So the case was sent back to OWCP to do this development. Not surprisingly, the doctor it chose said the cause of her back problems was “multifactorial” and “primarily” due to her weight. Note: there is no apportionment in FECA, and the employee need only prove that work factors contributed to any degree, no matter how slight, to the medical condition.  OWCP then issued another denial of the claim – without ever mentioning the contrary opinion of our client’s long-standing treating doctor. This is common practice with OWCP – it just chooses the report that’s unfavorable to a claim over the favorable ones, without any reference to contrary opinion – even though the law requires them to resolve any such medical disputes before making a decision.

So we filed another appeal with ECAB.  The Board, which is supposed to independently evaluate the evidence and render a new decision unshackled by the way OWCP handled the case, issued another decision this month in which it missed this problem (again) and specifically refused to even consider our client’s treating doctor’s opinions because his report “was already evaluated in the Board’s prior decision of August 7,2015.”  True, it was discussed in the prior Board decision, but it was not criticized at all; the Board merely said it was “insufficient” without saying why.

This is a perfect example of the near impossibility of any injured federal worker getting a fair decision from OWCP and ECAB on medical causation issues. Both agencies have discounted the treating doctor’s unequivocal, detailed medical opinions as not good enough to justify paying the claim, without stating why – other than vague assertions that don’t hold up on close scrutiny.  Ignoring her doctor lets them decide the case based on the unfavorable report of doctors they choose, and then unfairly deny the claim.  This happens over and over again in the rigged system of FECA claims adjudication.

As we have repeatedly advocated, you can have a non-adversarial system of workers’ compensation that’s administered fairly (which DOL claims FECA is), or an adversarial system with judicial review.  But you cannot have an adversarial system without judicial review, and that is what federal employees have now.


NOTE: A new legislative proposal for Postal reform was recently introduced in the House. Unlike several prior Postal reform bills, this one does not include provisions affecting FECA, and it is bipartisan.

NOTE:  With participation of WILG, Public Citizen filed a petition with USDOL in Washington, DC this month requesting that OWCP stop using the pro-employer AMA Guides 6th Edition when evaluating permanent impairments to federal employees under FECA.

Posted in Blog

Here’s still another “headscratcher” decision issued by the U. S. Department of Labor (USDOL) in its Federal Employees’ Compensation Act (FECA) program

A client just came into our office with this one. Back in December the Employees’ Compensation Appeals Board (ECAB) issued a decision agreeing with an OWCP decision that found a clerical job suitable for this permanently injured federal worker. The USDOL’s own doctor – incidentally a notoriously anti-claimant doctor – had told them in 2014 that the worker could do the job full-time, but yet on the same page had said he was limited to 2 hours per day of repetitive movements of the wrists and elbows, and 2 hours of pushing and pulling. The job description said it required up to 8 hours per day of all the following: intermittent simple grasping, pushing and pulling, and fine manipulation using a keyboard.

But USDOL/OWCP ignored this discrepancy and terminated wage-loss benefits in July 2014. Later, in December 2014, the employer “clarified” that actually its own position description was wrong, and the required keyboard use was just “occasional”. But for these purposes “occasional” is defined as up to 1/3 of the day, or about 2-2/3 hours, which would still be more than OWCP’s doctor had said the employee could do.

You would think that someone at USDOL would have noticed that the employee’s capabilities – even the capabilities as measured by their own choice of doctor – did not match the physical requirements of the job they had found suitable.

The employee filed an appeal with ECAB in Washington DC. The ECAB, which is supposed to independently evaluate the evidence and render a new decision unshackled by the way OWCP handled the case, missed these glaring problems too.

Now, months later, the employee is forced into the position of having to explain the obvious – that he can’t handle the physical requirements of a clerical job with his severe limitations on use of his wrists and elbows, etc. , and that the evidence in the file already proves that. All this time since 2014 he has been
without any wage-loss benefits because of USDOL’s mishandling of his claim.

One wonders what the claims examiners at OWCP and the lawyers at ECAB were doing when they were supposed to be reading this file and making a fair decision. Unfortunately, decisions like this are common in this supposedly “non-adversarial” system of workers’ compensation.


NOTE: Legislative proposals affecting FECA remain pending in both houses of Congress. No action has been taken on them, but the Postal Service’s continuing financial woes may again bring postal reform, and with it proposed FECA “deform” legislation, to the attention of Congress.

Posted in Blog