Research Notes

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

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

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

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

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

You may recall one of our earlier newsletters in which I discussed a strange decision by USDOL/OWCP that revealed its misapplication of an American Medical Association publication (a newsletter article) to FECA claims, resulting in smaller benefits being paid to injured workers.  As stated in our newsletter, we filed a request for reconsideration to challenge OWCP’s mistake.

In an even stranger twist, OWCP has now “doubled down” on its mistake, forcing the matter to the appellate level at the Employees’ Compensation Appeals Board (ECAB).  In an OWCP decision dated 03/15/2016, the previously-awarded 3% permanent impairment rating for the worker’s permanent partial loss of use of each leg, initially issued on 03/25/2015, was simply reissued with a new date, and with these comments:

“[OWCP’s Second Opinion doctor’s] response [to OWCP’s non-examining District Medical Advisor – DMA] indicated a disagreement with the DMA on the basis of the use of the July/August 2009 [AMA Guides] Newsletter as the guide for you [sic] impairment rating. This disagreement was found to be irrelevant because the Federal Employees’ Compensation Act (FECA) Procedure Manual (PM) directs the use of this newsletter as the guideline for impairment calculations of your specific type for schedule award payments in the Office of Workers’ Compensation Programs [emphasis added].”

OWCP’s Procedure Manual does not have the force of a law or a regulation, and cannot override those legal authorities.  Curiously, in an earlier paragraph of the same decision, OWCP states: “The implementing regulations have adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment, as the appropriate standard for evaluating schedule losses.  Currently, schedule awards are calculated using the Sixth Edition of the AMA Guides.”  That Edition does not include the newsletter’s way of calculating impairments. …

As already proven to OWCP, the AMA specifically does not accept the “proposal” contained in their newsletter as authoritative, so they never adopted it nor did they amend the Guides to include it.  For that reason, OWCP’s own Second Opinion doctor rated the impairment in this case based on the AMA Guides themselves, not the newsletter. But since application of the calculation method contained in the newsletter will result in lower benefit payments, OWCP simply adopted it anyway for its own purposes – regardless of whether it is medically correct.

And so it goes when dealing with an agency whose decisions are not subject to judicial review.  We are preparing our ECAB appeal.


NOTE: Legislative proposals affecting FECA remain in the hopper in both houses of Congress, but no action has been taken on them.

Posted in Blog, FECA

Without telling anyone, USDOL institutes an unjustified rule that disadvantages injured workers covered by the FECA program

We have discovered a highly questionable policy change by USDOL’s Office of Workers’ Compensation Programs (OWCP) regarding the way it calculates certain permanent disability benefits under FECA (workers’ compensation for federal employees).

This discovery came about because last September a doctor treating one of our clients protested to OWCP that they were instructing him incorrectly on how to “rate” our client’s leg disability.

Permanent “scheduled” disability ratings to certain parts of the body (e.g. arms and legs) under FECA must be calculated according to he American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (2008).  The doctor in the case in question used those Guides last year to rate the permanent impairment to both of our client’s legs, but OWCP told him he needed to instead use a calculation based on another AMA publication called “The Guides Newsletter”.  An article in that newsletter’s July/August 2009 issue, written by a doctor who was the Senior Contributing Editor of the Guides themselves, proposed a different way to rate the same disability, and OWCP told the doctor to use that method instead. In fact, OWCP had quietly incorporated this newsletter article into its Federal (FECA) Procedure Manual provisions about how to rate this type of disability.

The only problem was that the disability rating according to the established Guides was 10%, whereas the rating according to this newsletter was 2%.   The doctor protested and said the newsletter was just a proposed method of calculating disabilities, and asked why he shouldn’t use the Guides — which had been officially adopted by OWCP effective May 1, 2009 as the correct method of rating these disabilities. Meanwhile the Guides

themselves have not been amended to authorize use of this new method. OWCP refused to alter its position, and paid the 2% award to our client.

So we wrote to the AMA and asked whether the newsletter method had been accepted by the AMA as an amendment to the Guides.  The AMA wrote back and said no, the newsletter’s method was only a proposal that was never adopted by the AMA.

What’s wrong with this picture?  By simply adopting the newsletter’s way of calculating (and lowering) these permanent disability benefits, without even checking with the AMA to see if this new rating method had ever been adopted by the AMA, OWCP showed its desire to pay less-than-fair benefits to injured workers for no good reason.  And its actions certainly are contrary to the spirit of FECA, which is supposed to be a non-adversarial system that must be interpreted liberally in favor of the claimant. At this point there is no telling how many injured workers have been hurt by this practice.

We have asked OWCP to answer questions about this whole matter, and we intend to challenge the 2% award issued in our client’s case.


NOTE:  S.2051, the current Postal Reform bill, has been introduced in the Senate and a hearing on it was held last week.  WILG is opposed to many of the provisions of this law that affect FECA, since they reduce benefits, create cost-shifting to other programs, and are generally ill-advised.  We understand that the bill’s sponsor, Senator Tom Carper, intends to introduce a stand-alone FECA bill with the same provisions shortly.  We will keep you advised about these developments.

Posted in Blog, FECA

ECAB continues to issue outrageous decisions rejecting medical reports as “not rationalized” in FECA claims.

In FECA (federal workers’ compensation) claims, the highest legal authority for claims decisions is the Employees’ Compensation Appeals Board (ECAB). Yet that Board in the last few years has made a practice of upholding improper claim denials by the U. S. Department of Labor’s Office of Workers’ Compensation Programs (OWCP) that are based on the bogus assertion that the injured worker’s doctor’s medical report is not “rationalized”.  There is no question but that a rationalized medical report, stating there is a causal relationship between a work injury and the disabling medical condition(s), is necessary for a claim to be approved and paid.  But both OWCP and ECAB have made a practice of falsely claiming there is no medical rationale when clearly there is, resulting in denial of claims that should be approved and leaving the injured worker with little justice. This has contributed to an alarming pattern (see results of statistical study, below) of claim denials that are totally unjustified by any standard of fairness.

For example in a recent case filed by our office, an employee injured her back bending down to pick up something at work, resulting in a trip to the ER and subsequent surgery. The injured worker’s treating doctor stated: “Concerning the [injury from bending over at work] any movement that requires bending at the waist puts the lumbar spine at a 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 [history of lumbar spine disease with prior surgery] causing the disc herniation.  Concerning the need for repeat surgery, there is a known 15 percent to 20 percent risk of repeat disc herniation after any microdiscocetomy procedure. With the patient’s predisposing factors and history of multiple lumbar surgeries and collapse of the disc space, it was deemed appropriate to proceed with a decompression and fusion to treat the patient’s symptoms and prevent recurrence of her symptoms at that time.”

In spite of the doctor’s discussion of how the work injury caused the disability and need for surgery, OWCP found the report was “not supported by medical rationale containing an explanation of the nature of the relationship between her diagnosed condition and [the work injury].”  On appeal to ECAB, the Board agreed with OWCP that the evidence was insufficient, recently holding that “While none of the reports of the [worker’s] physicians were [sic] completely rationalized, they are consistent in indicating that [she] sustained employment-related injuries … and are not contradicted by any medical evidence of record. Therefore, while the reports are not sufficient to meet [the worker’s] burden of proof to establish her claim, they raise an uncontroverted inference between her claimed conditions and the employment incident of [date], and are sufficient to require OWCP to further develop the medical evidence.”

In so holding, the Board (1) falsely stated the treating doctor’s reports were not “rationalized” – they certainly were; and (2) ruled that the quoted report could never be considered sufficient for the purpose of accepting the claim.  The result is that now OWCP must send this injured worker to another doctor – one that it chooses – whose report will likely be considered “rationalized” and the claim will be denied again.

The irony of this situation – as pointed out by one of our colleagues – is that the ECAB decision holding that the treating doctor’s reports are not “rationalized” is itself not rationalized. It is clearly nonsense to state that this detailed medical report from the worker’s doctor is not “rationalized”, as can be seen by simply reading it. Since every FECA claim must include rationalized medical evidence, by using this logical sleight-of-hand OWCP and ECAB can blithely deny innumerable claims that are clearly valid by simply stating – without any actual rationale – that the medical evidence lacks “rationale”. This is not a “one-off” occurrence, as we have seen this same problem arise over and over again.

Our office has recently concluded a study of all ECAB decisions issued between June 1, 2014 and June 30, 2015 (a 13-month period).  Our study reveals that of the 1,936 appeals decided by the Board during that period, 463 (23.9%) were reversed or “remanded” (sent back) to OWCP for a new decision – in effect canceling the OWCP decision and requiring issuance of a new decision.  But of those that were reversed or remanded not a single ECAB decision overturned an OWCP claim denial based on alleged lack of medical “rationale”.  In other words, OWCP is free to improperly deny claims on this bogus ground, without fear of being overruled (much less, rebuked) by ECAB.  Despite this “stacked deck”, we and our colleagues are able to ultimately prevail in many such cases, but often this occurs after delays at OWCP and ECAB that should never have happened.

In a supposedly non-adversarial system with no judicial review, these ECAB decisions are outrageous and call for a study by Congressional and Senate oversight committees.

Posted in Blog, FECA, OWCP

Sometimes Less is More – FECA and FERS

Sometimes Less is More - FECA and FERSOne common misconception is that if one is receiving benefits under FECA that there is no reason to apply for FERS disability. The reason people believe that is because one cannot receive FERS benefits while receiving FECA wage-loss benefits. In almost every situation, it makes sense for an injured worker to file for FERS or CSRS. The primary reason for this is that one can become entitled to FERS/CSRS while continuing to receive benefits under FECA. The FERS/CSRS benefit can come into play in a variety of situations. The first is if OWCP determines that a work-related injury has healed or is not causing any disability. This commonly occurs after a second opinion examiner determines that the claimant’s problems are related to age and that the industrial injury no longer plays any role in the claimant’s disability. This can happen at any time, sometimes even after decades of a claimant receiving benefits under FECA. Having something to fall back on is very valuable.

In addition, under FERS/CSRS, one can make up to 80% of the current pay rate of the position they retired from and retain his or her annuity. OWCP takes a dollar for dollar deduction if an injured worker returns to work. Sometimes, injured workers can resume some sort of employment, even if it is part time or doing something other than what they did for the government. Even a moderate salary from private employment coupled with a disability retirement annuity can exceed that which one would get from workers comp. Lastly, if one is eligible for FERS, and they have an injury that would entitle them to a schedule award, they can receive both the schedule award and the annuity from FERS/CSRS at the same time. The bottom line is, don’t dismiss FERS/CSRS simply because you are receiving wage loss comepnsation from OWCP. An employee can file at any time that they remain on the agency rolls and must file within one year of separation . There are almost no exceptions to the one year requirement, so make sure to get it done in that time frame.

Posted in Blog, FECA Tagged with: , , , ,

Honesty is the Only Policy in FECA cases

Honesty is the Only Policy in FECA casesOne of the hardest problems for us to address in FECA cases is when a client has convinced his or her doctor to put in writing that the client can go back to work without restrictions, even when the doctor does not believe they should. This is always done because the client is afraid to lose his or her job or because the client is experiencing an extreme financial hardship and would rather work in pain or cause further injury to themselves than to not have an income. While this is certainly understandable, it can lead to an almost unfixable problem if the client is then unable to continue working without restrictions.

The client is then in the position of having to argue to OWCP that the client got his or her doctor to lie for them in writing regarding the client’s work capabilities, or they have to show that there has been some material change in his or her condition which occurred after the return to work.  Please be honest with your doctor and make sure they are honest with you and with OWCP with regard to your work restrictions. Thus, a short term fix can lead to a long term problem.

Posted in Blog, FECA, OWCP Tagged with: , , , ,

Selecting The Right Federal Disability Attorney for FECA Claims

Selecting The Right Federal Disability Attorney for FECA ClaimsFor an injured federal worker, selecting a competent and experienced attorney can make the difference between acceptance and rejection of a claim. There are very few attorneys nationwide who have experience in handling a worker’s compensation claim for an injured federal employee and even fewer who specialize in doing so. There are significant differences between state workers’ compensation claims under state law and federal workers compensation claims under the Federal Employees’ Compensation Act. For example, there is no apportionment under FECA and there are no court appearances. Attorneys who are not accustomed to representing injured federal workers will likely not know how to handle filing initial claims let alone responding to denial letters.

There are many nuances to getting a claim accepted, including making sure that the injured workers treating physician does not use any speculative language, such as probably or could be. These terms are frequently used by physicians and acceptable in many areas of law – just not under FECA. Another example of a difference between state and federal workers’ compensation is that under the federal system, the injured federal worker must provide medical evidence from a physician as defined by the FECA – meaning that the opinions of a social worker, chiropractor, physicians assistant or nurse practitioner are almost never considered competent medical evidence under FECA. If an attorney is not familiar with the nuances of FECA, it will be very difficult to achieve a good result for an injured federal worker, no matter how brilliant that attorney may be.

In addition, attorneys who regularly represent injured federal employees are more likely to be familiar with other areas of federal employment law, such as disability retirement under FERS or CSRS, wrongful termination or suspension issues appealable to the Merit Systems Protection Board (MSPB) and disability discrimination issues as they relate to federal employees in connection with EEO complaints.

Posted in Blog, FECA, OWCP

Contribution, not cause, is key in FECA cases

Contribution, not cause, is key in FECA casesOne of the remarkable features of the FECA system is the standard of qualification for benefits. To be entitled to coverage, an injured worker need only show that work duties contributed in some way to his or her injury, even if the injured worker had a pre-existing injury. For example, we had a client who had suffered a significant injury to his knee during military service. Our client then went to work for the US Postal Service for over a decade. During that time,  his knee condition became significantly worse. Even though he had problems with his knee well prior to his civilian service, his knee condition was covered 100% under FECA.

Under FECA, there is no apportionment. This means that if a factor of employment contributed even  .0001% to the development or current state of an injury, then it is completely covered under FECA. So, if a work duty constituted the straw that broke the camel’s back, it is irrelevant whether the camel’s back was badly damaged to begin with.

Posted in Blog, FECA Tagged with: , , , , ,