Research Notes

In mid-April, my partner Dan Goodkin and I, as members of the FECA [Federal Employees' Compensation Act] Section of WILG [Workers' Injury Law & Advocacy Group] traveled to Washington, DC for what are now our annual meetings with top officials at OWCP [U. S Department of Labor, Office of Workers' Compensation Programs] and ECAB [U. S Department of Labor, Employees' Compensation Appeals Board].

The first of these meetings Dan and I attended was held in October 2015, and now they encompass productive give-and-take discussions between the FECA claimants' bar (the vast majority of whom are members of WILG) and the decision-makers who manage FECA -- the only workers' compensation program that covers the approximately 3 million federal civilian employees. Dan attended as co-chair of the FECA Section, and I attended as a member of WILG's Federal Legislative Committee. Over time we have also added meetings at the U. S. Office of Personnel Management [OPM] with top officials there who manage the system of retirement benefits for federal employees, as well as meetings with interested parties on Capitol Hill.

At OWCP we expressed our appreciation for the openness with which we have been met at various OWCP offices and the dialog that has developed. Topics discussed included ways to improve communication between OWCP and claimant's attorneys in terms of the latter being copied on the complicated earnings questionnaires sent to our clients, and our being able to talk to OWCP nurse case managers, We also discussed what level of proof is required to exclude a medical examiner as biased against the injured worker, and what additional efforts OWCP should make to develop the record in emotional stress cases. Finally, we pointed out the problem that OWCP hearing representatives frequently do not address the legal arguments or the testimony presented at hearings when they issue their decisions, which of course leaves one to wonder what law applies and what facts were considered relevant. While agreement was not reached on all issues, inroads were made and we expect some changes soon. We invited OWCP personnel to attend WILG's annual convention in the Fall, as they have at our invitation for the last two years; their appearances and presentations have been well received and appreciated.

We also met with the Chairman and Chief Judge of ECAB, and are following up with him on topics such as the need for ECAB to issue final decisions, simplification of some appeals processes including attorney fee approvals, transcripts of oral arguments made before the Board, etc.

At OPM, we complimented the officials on the informal mechanisms we've been able to establish to correct errors specifically in disability retirement cases. Federal employees who become disabled after being in the job a sufficient length of time can retire early if their disability -- whether work-related or not -- is permanent and either renders them unable to perform their duties or is incompatible with useful and efficient service in the job. Benefits in such cases are less than workers' compensation and are taxable, but are payable in full even if the worker is able to obtain a lower-paying non-federal job.

On Capitol Hill, we joined other WILG members in lobbying for the interests of injured workers, including protection of workers' compensation benefits and hard-won federal employee job security and due process rights. In this age of hyper-partisanship, the value of having a professional federal civil service free from compromising political manipulation is perhaps greater than ever.

NOTE: The House Committee on Education & the Workforce held a hearing on May 8, 2018 on the subject of OWCP's response to the opioid crisis as it relates to injured federal employees covered under FECA. The general consensus of the witnesses was that, despite some changes initiated last August, FECA is behind the times in this regard, with insufficient policies and procedures to control over-prescription of opioid medications. We will keep you informed of developments on this issue.

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.

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.

For 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.