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WILG FECA Section Members Meet with Western Region OWCP Leaders

Daniel M. Goodkin Feb. 5, 2018

As mentioned in previous newsletters, 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, administered by the U. S. Department of Labor, Office of Workers' Compensation Programs (OWCP).

For some time, we have been working with OWCP's National Office to resolve problems in cases where OWCP decisions made at the local level were, in our opinion, clearly wrong based on OWCP's own rules. Eventually, the National Office suggested to us that perhaps a meeting at our local District Office could be helpful.

So in an attempt to resolve issues around how this law is administered, back in November, our office met in San Francisco with many of the USDOL personnel who administer FECA in several Western states. We had asked for a meeting with Susan Pearlman, the District Director at OWCP's San Francisco office (DFEC District 13), to address issues of concern about how this law is administered at OWCP's offices around the country. The San Francisco OWCP office has jurisdiction over claims by injured federal employees in California, Arizona, Nevada, Hawaii, and Guam.

To our pleasant surprise, Ms. Pearlman brought with her most of her senior claims staff as well as her Regional Director from Seattle. So instead of a meeting with one or two people, we (my partner Dan Goodkin, paralegal Jessica Duncan, and me) met with a roomful of about 15 people.

Our agenda was straightforward - we wished to (and did) discuss how it's possible to avoid issues like: OWCP's seeming inability to deal with urgent issues that arise in a claim (like a need for surgery authorization), non-response to phone calls from claimants' attorneys, claims being denied on bogus grounds like "no medical report received" when it was electronically uploaded to the OWCP file, decisions being made without review of medical evidence that was uploaded, claims being denied due to input from the employer that was not shared with the claimant's attorney, etc. On these issues, a protocol was agreed upon, setting forth whom we should contact, and in what order, to try to resolve such issues.

We also raised a more substantive issue involving the level of proof of causal relationship that is required, namely: Why does OWCP insist that a doctor explain the "mechanism of injury" in every case, even where it's obvious? We were advised that in cases where an injury is "obvious to visual inspection" no causal relationship medical opinion is needed. This is a bit different from the OWCP FECA Procedure Manual Chap.2-805.3(d)(1), which says:

(1) In clear-cut traumatic injury claims, where the fact of injury is established and is clearly competent to cause the condition described (for instance, a
worker falls from a scaffold and breaks an arm), a fully rationalized medical
opinion is not needed. The physician's diagnosis and an affirmative
statement are sufficient to accept the claim.
We'll have to see whether OWCP starts to take a more common-sense approach on this issue.

We also raised the sensitive issue of claims examiners denying claims based on their disagreement with the doctors' opinions - despite their lack of medical training. We were told that claims examiners "can't play doctor", and will get criticized by their superiors if they do that. Again, time will tell if this practice is going to be curtailed.

The meeting was substantive and cordial. After our meeting, Ms. Pearlman led us on a tour of the OWCP offices, where we met in person many of the claims personnel with whom we've been dealing for years.

So we have been operating within this new protocol for a couple of months now. The jury is still out as to whether it will work, to the benefit of all concerned (especially injured workers). We'll report periodically on the status of this initiative.

NOTE: An interesting article published on January 26th reveals the results of a study about the effects of employers' control over the medical treatment of injured employees. The study concluded that employer-directed choice of doctors has the effect of driving claimants to attorneys, thus erasing any savings in medical costs.