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.