Yet another "headscratcher" decision is issued by the U. S. Department of Labor (USDOL) in its Federal Employees' Compensation Act (FECA) program.
You may recall one of our earlier newsletters in which I discussed a strange decision by USDOL/OWCP that revealed its misapplication of an American Medical Association publication (a newsletter article) to FECA claims, resulting in smaller benefits being paid to injured workers. As stated in our newsletter, we filed a request for reconsideration to challenge OWCP's mistake.
In an even stranger twist, OWCP has now "doubled down" on its mistake, forcing the matter to the appellate level at the Employees' Compensation Appeals Board (ECAB). In an OWCP decision dated 03/15/2016, the previously-awarded 3% permanent impairment rating for the worker's permanent partial loss of use of each leg, initially issued on 03/25/2015, was simply reissued with a new date, and with these comments:
"[OWCP's Second Opinion doctor's] response [to OWCP's non-examining District Medical Advisor - DMA] indicated a disagreement with the DMA on the basis of the use of the July/August 2009 [AMA Guides] Newsletter as the guide for you [sic] impairment rating. This disagreement was found to be irrelevant because the Federal Employees' Compensation Act (FECA) Procedure Manual (PM) directs the use of this newsletter as the guideline for impairment calculations of your specific type for schedule award payments in the Office of Workers' Compensation Programs [emphasis added]."
OWCP's Procedure Manual does not have the force of a law or a regulation, and cannot override those legal authorities. Curiously, in an earlier paragraph of the same decision, OWCP states: "The implementing regulations have adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment, as the appropriate standard for evaluating schedule losses. Currently, schedule awards are calculated using the Sixth Edition of the AMA Guides." That Edition does not include the newsletter's way of calculating impairments. ...
As already proven to OWCP, the AMA specifically does not accept the "proposal" contained in their newsletter as authoritative, so they never adopted it nor did they amend the Guides to include it. For that reason, OWCP's own Second Opinion doctor rated the impairment in this case based on the AMA Guides themselves, not the newsletter. But since application of the calculation method contained in the newsletter will result in lower benefit payments, OWCP simply adopted it anyway for its own purposes - regardless of whether it is medically correct.
And so it goes when dealing with an agency whose decisions are not subject to judicial review. We are preparing our ECAB appeal.
NOTE: Legislative proposals affecting FECA remain in the hopper in both houses of Congress, but no action has been taken on them.