Monday, March 14, 2011

Second Opinion Examination

Any claimant who has been on OWCP for any length of time, will sooner or later be sent to an OWCP scheduled examination. You must attend any examination OWCP schedules or your benefits will be suspended until you do.

On the day you receive the notice of the scheduled exam, you should write your CE and request the following items:

1. Your Statement of Accepted Facts, (SOAF);
2. The list of questions the CE is sending to the physician; and
3. The physician's Curriculum Vitae

You should also include a paragraph requesting a copy of the physician's report once it is received by OWCP.

Why are these things important?

Your SOAF is just that, a statement of the facts OWCP has accepted in your case. Whenever OWCP sends you to an exam or sends your file to the District Medical Advisor, (DMA) your CE must complete an SOAF for the doctor. The doctor in turn must rely on the information contained in your SOAF. If your SOAF is inaccurate or incomplete, you have the basis of an appeal, should it come to that. See the FECA Manual part 2 at 2-0809 for information regarding SOAF's and their requirements. You can find the FECA Manuals on the "LINKS" page.

The list of questions to the physician is to answer certain questions OWCP has in your case. However, the questions to the physician cannot be leading questions. In other words, the questions can't be phrased in such a way as to lead the physician to the answer. See the "Useful Stuff" page for some ECAB decisions regarding leading questions.

The Curriculum Vitae is a physician's resume. This can be helpful for information about the physician.

The next thing you should do when you receive your scheduled exam notice is to research the physician you're being sent to see. Often OWCP uses the same physician's over and over again. The physician's are paid better by OWCP than through the private sector and many physician's take advantage of this, especially older physician's. Also, a lot of OWCP's physicians also work as State work comp and Social Security examiners as well.

OWCP cannot send you to a physician who has the appearence of bias toward claimants. Check the "LINKS" page for ECAB decisions by topic and search the site for the physician. Read the decisions and see how the physician writes his/her reports. Do they consistently find in favor of OWCP and against claimants?

Do a basic Google search on the physician, what comes up? Does the physician have a current license for your State? The more skeletons in the physician's closet, the better.

Now let's say that you do find skeletons in the physician's closet, what should you do? The first question you have to ask yourself, is what did you find? If you found that the physician OWCP selected for you is regularly involved in law suits, Social Security claims or State work comp claims, you must find information that pertains to OWCP as well. Although the OWCP and/or the ECAB has to consider outside information, they do not have to agree with it. The ECAB decision web site is the best place to tie the physician to the OWCP.

OWCP also cannot send you to the same doctor or a doctor you've already seen for your injuries.

If, after researching the physician, you think the doctor may appear to be biased against you, you must alert OWCP PRIOR to your appointment. But let's say that your SOAF is also inaccurate, my personal opinion is NOT to alert OWCP to this fact. Wait for the physician's report, if it goes against you, then use the inaccurate SOAF. If the report is in your favor, you say nothing to OWCP about the SOAF. This way, next time you're sent to an OWCP scheduled exam, even if they update your SOAF, they probably won't correct it and you have the inaccurate SOAF in your bag of weapons for later.

I highly recommend every claimant take a tape recorder to any OWCP scheduled event (except on Federal property). The physician may protest, but stand your ground. Then you have a recording of exactly what was said during your appointment and if the facts come out different later, you have proof.

Most of what claimant's have to do involves preparing for future battles and/or appeals. These things are much easier if you gather your weapons as you go rather than trying to fight after the fact.

One last thing about OWCP scheduled medical exams. You are allowed to file a complaint of your own with OWCP and you can also file a complaint with your State's medical board if need be. The information you find during your research, how you're treated by the physician and your report would determine your decision on whether or not to file complaints.


  1. Thanks for all the good information. I am scheduled for a second opinion with on of the Physicians on the OCWP list. Dr. Aubrey A. Swartz. All reviews and comments about this doctor looks bad for me. I'm not sure what to write in the letter to the CE. I have a month before my appointment. Any suggestions?

    1. This person also was my 2nd op. I have a failed spine fusion with damage to additional disks. He stated I was fine could lift and stand etc. This guy is a quack and I am going to the Medical Board.

      This guy is bad news!

    2. I went to Swartz for my 2nd op too. I also have a failed spine fusion, herniated disks and nerve damage. Swartz report said I could work full time. Fortunately he is such a bubbling old fool he screwed up the forms and med report. My doc disputed his opinion (with scientific and medical evidence, MRI etc.), went to a med referee, he agreed with my doc and Swartz was over ruled. I call him Swartz because I refuse to address him as Dr. If you have to go to Swartz, you are walking into a setup....

  2. Anyone who goes to Swartz should send a Freedom of Information Act request to OWCP. Swartz has at least three complaints filed with OWCP. With a FOIA request, you can get copies of the complaints and use them to help discount his "medical opinion".

    1. Jesse, I made a FOIA request on Swartz and was stone walled by OWCP. However I was able to use unanswered FOIA request as part of my complaint, along with lack of medical evidance by Swartz (I have to prove my injury is valid, why doesn't Swartz have to use the same rules, I had less than 15 minutes face time with him including physical exam), with four or five other problems with his opinion particular to my case. I would bet Swartz has many more than three complaints.

    2. Are you discussing Dr. James Schwartz? I have my 2nd opinion with him next week. I have had 3 back surguries over a 12 year time period, and now they are refusing the fusion & neurostimulator to help make my pain more tolerable.

  3. Jesse,

    You rock, I used the ECAB on the OWCP even though I fall under the Longshore and Harbor Workers’ Compensation Act, She immediately cut me off and said they don't fall under that (ECAB) but they have an OALJ(Administrative Law Judge) who their higher officials are the (BRB) Benefits Review Board.

    One thing I learned today is follow your heart and gut because that will never take you the wrong way. I realized after 4 months of workers' compensation, temporary disability that it was time for me to do some research and find out what my rights are.

    Knowledge is power. Now I have to prove that my employer knowingly and intentionally tried to deny my worker's comp claim just to hide her EEO complaint that I filed on her for suspending me because I opposed a discriminatory action and spoke up and emailed (paper trail) about it.

    Thank you so much Jesse for all this wealth of information. I am home with a psychiatric condition.

    After 4 months of silence for CE, she sends my attorney an ugly letter deny to settle my claim but want me to go to the Employer's doctor. This is after I wrote her letter the day prior stating how I felt and I was going to write to the President in which I did on the White House Blog about this company and gave her name. I don't anything to lose but my dignity and people can't take that.

  4. Jesse,

    I cannot thank you enough for this website and the info in it which has helped me SO MUCH.

    About a year ago, I was sent for a SECOP for my work-related condition of Adjustment Disorder with Anxiety and Depression. This was right about the time my treating physician (a psychologist I have been seeing for 15+ years) suffered a head injury and had to retire. After 3 written requests, I finally received a copy of the SECOP medical report, stating of course that I was fully fit to work with no restrictions AND that he found no basis for a work related injury.

    OWCP had not acted on this, but is now asking for another medical report from my treating physician. I have found a new psychologist, asked for and received approval to change my treating physician (although not sure I even like the new one yet). She is working on a medical report.

    I did not request the items you recommended before seeing the SECOP psychiatrist. I did find one ECAB decision involving him and have done a FOIA request about him. In 2010, I finally was able to get a copy of my "complete" file from the Office. A lot has happened since then. My questions are:

    1. Should I still request the items above, even though I have already seen the Dr.? Or, would it be faster to do another Privacy Act request for my file since the last request in 2010?

    2. I want to file a complaint about this psychiatrist. Are there any guidelines/procedures for this? I wish I would have recorded the 1 hour session because he quoted me out of context and tricked me into trusting him/saying more than I should have. He thoroughly attacked my character and that of my family in his report!

    3. The Office also sent me for psychological testing (the MMPI,administered by a different doctor) to be considered in the SECOP report. The psychiatrist SEEMED TO disagree with those results in his addendum to the report. The Office would not send those results to me stating it could be misinterpreted by a non-mental-health practitioner. Any thoughts?

    4. Can I/should I be seen by another psychiatrist to obtain another Medical Report in addition to the one my new psychologist is doing? Will OWCP pay for this? I live in a remote area with no psychiatrists or psychologists (other than the one I WAS seeing). I have been seeing my family doctor for my antidepressant medications.

  5. Do I have a right to refuse surgery. I've already had 3, and really don't want another one. I don't want to lose my OWCP benefits though.

  6. Yes, you can refuse any surgery. That's your choice.

  7. If my primary doctor who doesn't do impairment ratings declared me permanent and stationary 1 month ago and my scheduled second opinion appt is not until almost 3 months later, will the date when my my primary doctor declared me permanent and stationary still stand or the second opinion doctor can change that?

  8. The second opinion can change the date of MMI.

  9. Any suggestions on what to do if the Regional District Medical Advisor report disagrees with the OWCP Secop Dr. I was sent to for a schedule award. SECOP Dr. used 6th edition and rated me at 13% lower extremity and DMA says 0.

  10. The DMA would have provided a report, you need to get a copy. This report should explain how the rating was lowered. You should take the report to the rating doctor and have him/her write a rebuttal on how your doctor got the rating right and the DMA got it wrong. If a formal decision was issued then you will have to appeal the decision.

  11. How is that claims examiners (Bridgett Peters) can deny your traumatic injury claim, you win on appeal but nothing happens to that claims examiner bad decision? O.W.C.P needs public awareness made to the negligent affects they provide on injured employees! People are being abused by his agency at the same rate the Veterans Administration handled veterans. How can public awareness be made to advise the American public that people are being abused by this agency as it pertains to their quality of life during, and following government service. Bad denial of benefits are affecting peoples lives at an alarming rate, and should be made visible to EVERYONE in this country!

  12. This is true and I'm hoping that the abuse will come to light. Stay tuned, I'm currently working on something to that effect!

  13. This is true and I'm hoping that the abuse will come to light. Stay tuned, I'm currently working on something to that effect!

  14. I was sent for a SECOP exam. Everything on the paperwork stated it was for a SECOP. When I finally received the report, it was for an IME. Is a SECOP and a IME exam the same thing? What should I do? I just found this out, but the SECOP was done in 2014.

  15. A secop and an IME are very different.

    Often OWCP's physicians will write in their reports that the examination is an IME. That is not always accurate.

    Also, an IME cannot come first. You are first sent to a secop. If a conflict in medical opinion is determined, then you are sent to an IME.

    Your paperwork indicates this was a secop, so it's a secop.

    This is only an issue if OWCP acts on the secop report as if it were an IME.

  16. My benefits were terminated in 2009 secondary to a crummy IME. I have been fighting it ever since. After a trip to the ECAB the file was returned to the field office to reevaluate the termination decision. Instead of making a decision of erroneous termination and reinstating me, they told me by phone today they are sending me for another medical exam. Doesn't seem fair. Shouldn't they be using the information they had in 2009? What recourse is available?

  17. It's not unusual for this to happen. At this point a medical report from 2009 would be considered stale.

    On the plus side, a new second opinion means that the old second opinion and IME are no longer being used against you.

  18. mr slade,
    I am going for a physical impairment rating tomorrow. I have my medical records from my orthopedic surgeon. His final rating for my left shoulder was 12% in accordance with the 3rd edition of the AMA guidelines. But OWCP ordered an FCE to be done. A vocational training counselor for OWCP called me and informed me that I have been scheduled for a FCE. long story short, I went to the FCE and I have to say, that damned test took over three hours. Im a pretty big dude and it was no joke. After the exhausting FCE I told him that I was going to submit for a schedule award. He asked me what my surgeon gave me as a rating and I said 12%. Well his eyes got pretty big and he told me "listen I cant give you the results of the test, you can write and request a copy" and he said: "If I were you, I would go get an immediate second opinion because from what my generated results are giving me, you're in worse shape then that". when i asked how so, all he said was "I've been doing this for nearly 27 years, You cant fake it on this test and fortunately for you, your results are consistent. I would seriously go get a 2nd opinion and that's all I can say for now". and when you do go, make sure you get a copy of this report, take it with you. he or she will need it to give you a higher impairment rating". My question is, should I be worried?

  19. Your impairment rating was done according to the 3rd Edition of the Guides. OWCP only accepts impairment ratings according to the 6th Edition of the Guides, so your impairment rating under the 3rd Edition isn't going to work.

    You will need a proper rating according to the 6th Edition of the Guides. Otherwise OWCP is going to have an issue with your impairment rating.

    1. dear mr. slade, thank you so very much for the quick response. that was super fast. ok, this is what I was told and what I read online. orthopedic surgeons in the state of california do not recognize the 6th edition of the ama guidelines. there is so much information out there some true some false, if that's the case, do i have to go to another state and get the impairment rating? i know, sounds stupid, but with the information out there, I don't know which to trust

  20. If a physician doesn't 'recognize' the 6th Edition, then they haven't done impairment ratings for OWCP and you probably don't want to use them anyway.

    State workers' compensation may use a different edition of the Guides, but OWCP will only accept a 6th Edition rating. That's all there is to it.

    You may have to travel to get a decent impairment rating. Dr. Adarmes in AZ is excellent at ratings for OWCP.

    Bottom line...OWCP will ONLY accept a rating according to the 6th Edition of the Guides and does not accept any Whole Person ratings since not every body part is eligible for a schedule award.