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Fighting Smart in FECA Claims

Daniel M. Goodkin Nov. 19, 2012

Anyone who has dealt with OWCP on a regular basis no doubt has at least a dozen stories of infuriating decisions and maddening interactions with claims examiners (I am positive that claims examiners have plenty of  stories about unreasonable attorneys). While I believe in strong and aggressive advocacy, years of experience in dealing with OWCP claims examiners has taught me that often, the best course of action is to make my argument as clearly as I can - and then shut up. The reason is that it far more productive for my client for me to hang up the phone than it is to get involved in a shouting match with a claims examiner. Nothing good can come of that.

In a recent case, a claims examiner, whose decisions I had gotten overturned twice on the case in question, was insistent on sending our client to an unnecessary second opinion examination (our client had already been to one second opinion exam). I made the argument that it was unnecessary in writing and subsequently spoke to the examiner on the phone. Rather than explain why the second examination was necessary, this examiner simply kept stating, like a parrot, that my client had to attend the examination. As I hung up the phone, I immediately began to write a nasty letter to the claims examiner, his supervisor,  the director of the department of labor my client's congressional representative, etc..

After writing it, and taking about fifty deep breaths, I deleted the letter without sending it. The reason was that there was nothing to gain by further antagonizing the claims examiner. The claims examiner  wasn't going to change as a result of me yelling and pointing out how ignorant and wasteful his decision was. I had stated my argument clearly, and in the event the second opinion came back against my client, I had preserved the issue for appeal. As it turned out, the second second opinion agreed with the first second opinion examiner, my client's benefits were granted in full and my wounded pride over being ignored by the claims examiner healed instantly the second I received the favorable decision - although I will admit to no small measure of satisfaction at seeing that this claims examiner had to sign the acceptance letter.

- DMG 11/19/12