Research Notes

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

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

The “exception that proves the rule” – How one OWCP claims examiner got it right in a FECA claim.

Sometimes we have so many problems dealing with  USDOL's Office of Workers' Compensation Programs (OWCP) in Federal Employees' Compensation Act (FECA) claims that we forget it is within their power to do right by these injured workers.  The following case provides a lesson in how these claims can and should be handled by OWCP.

We filed a relatively straightforward carpal tunnel claim for a Postal worker with a history of repetitive motion work for many years. The claim was initially denied because OWCP said the doctor had not addressed the fact that she had worked in a management position, which required less repetitive motion for a period of time.

We then filed a reconsideration request with a new medical report addressing that issue. The Senior Claims Examiner (SCE), a Ms. Sanchez from the New York district office, called and spoke to our paralegal Erika Bauer and then to my partner Dan Goodkin. She said that the new medical report was not clear, because it said that the client's work duties precipitated, aggravated, accelerated and caused the claimant's condition. She felt that was confusing, and wanted to know which it was. While Dan disagreed that these terms were mutually exclusive, the SCE did let us know what evidence she needed in order to approve the claim.

We then wrote to the doctor again, and in his reply he explained that the condition was caused and then aggravated by employment, and provided a more detailed pathophysiological explanation of the process by which those things occurred.

The SCE then called back and said that was good enough on the causation issue, but that she needed some objective test results and a copy of all of the claimant's treatment records since the initial filing. So we provided those, and the claim was approved.

What is the point of this story?  The point is that this SCE engaged in an interactive process with our office about the proof she felt was needed in order for her to make a final decision on the claim. This virtually never happens at OWCP.  Instead, the typical claims examiner would have just denied the reconsideration request, saying that the medical report we submitted was unclear and therefore insufficient. Then we would have filed another reconsideration request based on the doctor's clarification, and the typical claims examiner would have denied the claim again, saying there were no objective tests results provided nor were all the treatment records since the claim filing, and therefore the medical evidence was still insufficient.  Then we would have had to file yet another reconsideration request (request #3) based on that additional information, and perhaps then the claim would have been approved. We have called this frustrating process "piecemeal adjudication".

Questions: In a non-adversarial workers' compensation system, where the evidence is supposed to be viewed liberally in favor of the claimant, why isn't what SCE Sanchez did standard operating procedure?  Wouldn't such a procedure, if instituted across the board in all claims, save tremendous amounts of time, money and effort for all concerned?


NOTE:  After the hearing held on it last month, there has been no further action taken by the Senate on S.2051, the current Postal Reform bill first introduced on 09/17/15 by Sen Carper. Since then, the White House has published its FY2017 budget, which unlike the previous one does not call for cuts in FECA benefits.  WILG is opposed to many of the provisions of S.2051 that affect FECA - benefit cuts, cost-shifting to other programs, etc.  We will keep you advised about this bill.

Posted in Blog

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

Common misconceptions about federal disability retirement under FERS

Contribution, not cause, is key in FECA cases

Common misconceptions about federal disability retirement under FERS

Common misconceptions about federal disability retirement under FERS

There are many reasons why injured federal employees do not believe they are eligible for disability retirement under FERS.  Most federal employees who have worked in a position covered by FERS for at least 18 months are eligible for federal disability retirement under FERS if they have a medical condition that prevents them from carrying out the full duties of their official position. Here are some common misconceptions about eligibility for federal disability retirement under FERS:

1.       You do not have to be totally disabled from all work to qualify for federal disability retirement under FERS.

Per 5 USC §8451(a)(B), an employee is considered disabled if they are found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee’s position. There is no requirement that an injured federal worker be found totally disabled from all work in order to qualify for federal disability retirement under FERS.

2.       Even if you are fired for cause, you can still qualify for federal disability retirement under FERS.

Removal for misconduct does not preclude an individual’s receipt of disability retirement benefits if he can show that he was disabled from performing useful and efficient service in his position prior to the effective date of his removal. Delceg v. OPM, 100 M.S.P.R. 467 (2005). Please also see Henderson v. OPM, 2008 M.S.P.B. 191, August 4, 2008. In that case, handled by our firm, the appellant was removed from service after pleading guilty for distribution of marijuana. We were able to prove that he was disabled prior to his removal and he was granted disability retirement benefits under FERS.

3.     If you are working light duty, you may still be able to qualify for FERS disability retirement.

Any evaluation of useful and efficient service for disability purposes must be with respect to the employee's official position, not an unofficial light duty assignment. Marino v. Office of Personnel Management, , 243 F.3d 1375 (Fed. Cir. 2001). This applies to postal workers seeking disability retirement under FERS as well. See Chavez. v. OPM, 11 MSPR 69 (2009).

4.       You can qualify for FERS disability retirement on the basis of non-work related injuries.

OPM will consider all disabling conditions whether they are on-the-job injuries, injuries accepted by OWCP as compensate, or whether they are completely unrelated to your federal service. In fact, you can establish entitlement to federal disability retirement under FERS even if the medical condition that is causing your disability predates your employment, providing you can show that you became disabled due to the medical condition after employment began.

5.       After retiring on FERS disability retirement, you can work for a non-federal employer and make up to 80% of the current rate of pay for the position from which you retired -  and still retain your disability retirement annuity!

Unlike social security or FECA wage loss claims, there is no deduction taken from a disability retirement annuity under FERS for wages earned in non-federal employment following disability retirement. As long as the annuitant earns less than 80% of the current rate of pay for the position from which she/he retired, her/his annuity will be unaffected. There are other limitations concerning the type of work that can be performed without impacting FERS disability retirement benefits that should be discussed with a FERS disability retirement attorney prior to undertaking employment following disability retirement.

As discussed above, there are many exceptions and nuances to FERS. Anyone considering filing a disability retirement application under FERS would be well served by consulting with a competent, experienced attorney well-versed in handling federal disability retirement applications. - DMG 4/9/14

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Practitioners Explain Strong Objections to Using AMA Guides 6th Edition in FECA claims

Practitioners Explain Strong Objections to Using Guides 6th Edition

By Elizabeth A. Morrow, Esq., cyber FEDS® Special Projects Editor

ASK THE EXPERT: Schedule award compensation -- that is, compensation for the permanent impairment of a scheduled member or function due to a workplace injury -- is one of the benefits available under the Federal Employees' Compensation Act. See 5 USC 8107. However, as neither the FECA nor federal regulations specify how to calculate the degree of permanent impairment, the Office of Workers' Compensation Programs adopted the American Medical Association's Guides to the Evaluation of Permanent Impairment as the standard for evaluating scheduled losses. The sixth edition of the Guides, which applies to decisions issued by the OWCP on or after May 1, 2009, has generated significant controversy since its adoption.

cyber FEDS® asked Daniel Goodkin, Steven Brown, and Daniel B. Shapiro, attorneys who represent claimants in federal workers' compensation cases, to explain why practitioners dislike the sixth edition and would like to see it abolished.

Q. Describe the basic differences between the fifth and sixth edition of the Guides.

Shapiro: Prior to the sixth edition, impairment was based on functional assessment. The sixth edition reflects a dramatic shift and bases impairment on the claimant's diagnosis, rather than functional assessment. The major reason for the change was financial, in that many from the insurance, business, and financial communities thought a diagnosis-based assessment could be sold as a more objective approach and could be advertised as minimizing abuse. It was another example of the business, insurance, financial, and medical communities attempting to legislate for the exception rather than the rule and using that as a basis for devising the system that would diminish impairment ratings and therefore diminish dollar payouts. For an excellent summary of the history and evolution of impairment ratings, I recommend reading Dean Emily Spieler's 2010 testimony before the Subcommittee on Workforce Protections of the Committee on Education and Labor.

Goodkin/Brown: The current version of the Guides was edited by occupational medicine specialists who gave the ratings their own values without explaining the basis of a rating and how it was determined. The sixth edition is "consensus derived," which means insurance company physicians, along with a large group of defense attorneys, met and determined the impairment ratings. The term "consensus derived" means that ratings are not based on any empirical scientific data or epidemiological studies. The ratings, in short, are not based on any research and have not been replicated by national peer-reviewed standards. It also means that the authors and editors never mention a "minority view" on how something should be rated, if at all.

Q. Why are there so many objections to the approach used in the sixth edition?

Shapiro: All workers' comp practitioners want to see the fifth edition of the Guides back in play because the basis for determining impairment was governed by what historically had been the most reliable approach -- the functional assessment of an individual claimant. By individualizing impairment ratings through a personal functional assessment, the ratings are more accurate and generally are higher because it is not a one-size-fits-all approach.

Goodkin/Brown: Virtually every rating is significantly lower under the sixth edition based on the "consensus" of some unknown group of physicians. Doctors tell us the sixth edition is extremely difficult to understand and use. Many doctors in California and the other 39 states that have not adopted the sixth edition have refused to write reports using the sixth edition, calling it "illegal," "voodoo science," or "useless." We have seen a substantial increase in disagreements between treating doctors and OWCP doctors with regard to ratings ever since the sixth edition was adopted. Under the fifth edition, the district medical adviser and primary treating physician often agreed on ratings. Now it is rare that they are in agreement.

Q. Describe the efforts being made to abolish use of the sixth edition, and why you think these efforts will or will not be successful.

Goodkin/Brown: The sixth edition has been challenged successfully in most states. As of 2011, only 10 states had adopted the sixth edition for state workers' comp. The OWCP adopted the sixth edition without any vetting, hearings, or attempts to address the concerns and criticisms that have been heaped upon the Guides by medical and other professionals. However, given the current climate in Washington D.C., it will be challenging to secure more money for this effort, no matter how unfair the sixth edition is to injured federal workers.

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