Research Notes

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

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

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