In this lesson, we're going to learn what to look for to rebut your OWCP-directed medical report. This can be a second opinion examination, Independent Medical Evaluation, (IME) or even a Functional Capacity Evaluation (see the post Functional Capacity Evaluation Reports for more information on FCE's).
So, what ARE you looking for? You're looking for contradictions, inconsistencies and errors.
First and foremost, read the report over and over. When you think you've read it enough, read it again and again after that. Why? because by reading the report over and over, it becomes familiar and contradictions and inconsistencies will be more obvious to you.
After you've read your report, read your Statement of Accepted Facts, (SOAF), is the information contained in your SOAF accurate? Are the dates, claim numbers, accepted injuries, mechanism of injury, etc...correct? Does the SOAF have a current date or is it an old SOAF the CE has recycled? If the SOAF is older, have any changes occurred that are not contained within the SOAF, such as a current MRI or other diagnostic test? At the very least, your CE should have re-dated the SOAF with a current date. Otherwise, you could argue the SOAF is outdated.
OWCP-directed medical reports MUST be based on factual information. The SOAF is that information. An OWCP physician must use the SOAF as his/her frame of reference, if it's inaccurate it results in a report based on inaccurate information. Any OWCP-directed medical report that is not based on a factual SOAF can be fought. See the "Useful Stuff" page for ECAB decisions regarding inaccurate SOAF's.
Next, read the list of questions provided to the physician. Are the questions the physician answered the same questions OWCP asked?
As you read your report, look for errors. Maybe the report states you saw Dr. Smith, but you actually saw Dr. Jones. Maybe the report states you saw Dr. Smith February 12, 2010 but you actually saw Dr. Smith April 18, 2010. You're looking for factual errors. Maybe the report says you've had no diagnostic tests, but you had an MRI.
When the doctor relays your medical documentation from reports provided to him/her, is it accurate? For instance does the report indicate you had an MRI and the results showed no evidence of abnormalities but the MRI report actually states there are abnormalities? Does the report accurately report your physical limitations? For instance, your physician has you restricted to 4 hours per day with a lifting limitation of 20 pounds but the OWCP report states you're working with no restrictions, or you're working 8 hours per day, or you're able to lift 50 pounds.
Let's take a look at some examples of what you're looking for in your OWCP-directed medical report. In our examples, we're going to use information from actual second opinion and IME reports.
"The medical records reviewed document medical treatment beginning on June 12, 2006 for ongoing problems with the cervical spine with radiating pain into the shoulders. Although a diagnosis has been established of herniated nucleus pulposus cervical spine with cervical radiculpathy, there are no MRI studies available for review to document this."This particular claimant was injured and treatment began in 2004, so the medical records sent to the physician were not complete. The claimant also had MRI's performed in 2005 and 2007. However, the physician states "no MRI studies available for review".
The argument here would be that the physician was not provided a complete medical record and that the physician did not review the MRI results. Therefore, his report is not accurate or complete due to the missing records and diagnostic test results.
"It should be noted that the claimant was seen for Referee Examination on June, 8 2006 by Dr. Howard Shortley, who felt the claimant was working 8 hours a day with lifting restriction of 40 pounds, no driving more than 2 hours and no above shoulder work. It should be noted that I have not been provided with this report.
From review of the above medical records, it does not appear there has been any significant change in the patients conditions since June 8, 2006, when the patient was seen for Referee Examination by Dr. Shortley. Based on the above, it would be my opinion that the patient could work 8 hours a day, as opined by Dr. Shortley."This particular claimant was not working 8 hours per day, but 4 hours per day and the lifting restriction was 25 pounds and not 40 pounds. The physician then states his opinion agrees with that of the referee physician. The crucial information here is, "It should be noted that I have not been provided with this report." The physician is giving information and agreeing with an opinion from a report he states he hasn't seen.
The argument here would be the contradictions, 40 pounds vs. 25 pounds, 8 hours per day vs 4 hours per day and most importantly, the physician's opinion is based on a report he was not provided with. As it so happens, the referee report stated the medical conditions were progressive and would probably get worse. Since the physician didn't receive a copy of the referee report, he was not aware of this opinion. It would be impossible for the physician to know what the referee opinion is because the physician wasn't provided the report that contained the opinion.
"A previous neck-Workers' Compensation injury occurred in 1999 that resolved in six weeks."This particular claimant had never filed a previous OWCP claim. The argument here is inaccurate information reported by the OWCP physician.
"The treating physician okayed work eight hours a day."In this case, the treating physician never released the claimant to 8 hours of work per day. The argument here is inaccurate information reported by the OWCP physician.
These are the things you're looking for when you receive your report from OWCP. You're looking for factual errors, contradictions and inconsistent reporting. This can be a complicated, confusing process at first, but if you understand what you're looking for, with practice it becomes second nature.
As we go along, we'll explore how to argue your case to attempt to overturn the weight of an OWCP-directed medical report. We'll also explore more about SOAF's and the questions OWCP provides to its physicians.