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Here’s Just One More Horrible Decision

Daniel M. Goodkin June 1, 2016

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.