Tuesday, April 5, 2011

The ECAB

If you've done any reading on the subject of OWCP, you've probably heard about the Employees Compensation Appeals Board, also known as the ECAB or the Board. You've probably heard you should read an ECAB decision or look up a decision in support of your case, but what do you do with it once you find it?

The ECAB is the highest authority in the OWCP system. What the Board says goes. The ECAB sets and holds precedent. If the ECAB says it and the precedent has held, then that's the law of OWCPLand.

The point of reading ECAB decisions, is that you become familiar with what the actual rules are as opposed to what OWCP tells you the rules are. So if, for instance, you have an issue with your Statement of Accepted Facts, (SOAF) and you read three or ten ECAB decisions, the Board will repeat the same policy, procedure or law that pertains to the situations of the SOAF.

Every case is different, but policy, procedure and law surrounding the issues are the same. Job offers, Loss of Wage Earning Capacity, (LWEC), vocational rehabilitation, fact of injury, consequential injuries, SOAF's, occupational injuries, recurrences, you name it, there's an ECAB decision about it. The more common the issue, the more plentiful the ECAB decisions on the subject.

If you need to respond to a letter or especially an appeal in support of your case, you need to back your claim up with citations from the FECA Manuals and the ECAB. It's not enough to tell OWCP they made an error or incorrect decision, you must show them. The OWCP MUST follow its own policies and procedures, but as we know, a lot of times they don't. It is your responsibility to point out where OWCP got it wrong, because let's face it, the OWCP isn't going to police itself.

Almost every topic that could come up regarding your claim is in the FECA Manuals and the same applies to ECAB decisions. When looking for an ECAB decision regarding a specific topic, use the ECAB by Topic link on the "Links" page. Once you get to the ECAB web site, type in your topic in the search bar on the left hand side of the screen. Check the Federal Employees Workers' Compensation box on the right hand side of the page. More than likely you will get results. If not, keep playing with it until you do.

An ECAB decision will tell the facts of the case and will then discuss the issue on appeal citing precedent cases on the topic. The Board will then make one of three decisions;
1. Affirmed, which means the claimant lost and the Board agrees with OWCP;
2. Remanded, which means something is missing or something else needs to be done so the file goes back to the OWCP to get the missing information; or
3. Reversed which means the claimant won and the Board reverses OWCP's decision
The Board will cite precedent setting cases in every decision. Those citings will be listed at the very end of every decision. When you're using ECAB decisions to support your claim, use appeals that are as similar as possible and have been reversed.

At the top of every ECAB appeal, there will be a Docket Number and the date of the decision. This is the information used to find an ECAB decision by Month and Year. Quote the ECAB decision that you're using in your argument(s) to OWCP and then cite the case where you found the information.

ECAB decisions aren't just for use when attempting to overturn an OWCP decision, you can actually learn from them. Read ECAB decisions on your topic and you'll learn what the specific requirements are. Even decisions that are affirmed are useful as learning tools. ECAB decisions lay out exactly where a claimant went wrong and exactly where a claimant went right. If you're attempting to get a claim accepted, ECAB decisions on your topic will lay out exactly what information is required from you.

For instance, if you're being sent to an Independent Medical Evaluation, (IME) and you read ECAB decisions regarding IME's, then you'll see over and over again that an IME is to be chosen at random according to strict guidelines. If you received an inaccurate Statement of Accepted Facts, (SOAF), you'll see over and over again that a medical report based on an inaccurate SOAF is of little or no value. If stale medical evidence was used, you'll see over and over again that the Board has held that medical evidence that is not contemporaneous (or current) is of no value. If you're trying to prove causal relationship, you'll see over and over that causal relationship must be established by rationalized medical opinion evidence.

If you want to learn what's required for any OWCP circumstance, try reading ECAB decisions. Quoting ECAB decisions to OWCP is also one of the best ways to rebut any OWCP decision, opinion or conclusion. OWCP cannot come back and say the ECAB is wrong.

As an example, we'll say that OWCP found a job offer suitable based on the stale medical evidence and as a result, the claimant was injured, but OWCP denies the claim. We would respond to OWCP like this:
The Board has recognized the importance of medical evidence being contemporaneous with a job offer in order to ensure that a claimant is medically capable of returning to work, Ruth Churchwell, Docket No. 02-0792 (2002), John Perez, Docket No. 99-0816 (2000).

The Office relied on stale medical evidence on which claimant's job offer is based. The Board has stated that, consistent with case precedent, stale medical evidence cannot form the basis for current evaluation of residual symptomology or disability determination, Diane M. James, Docket No. 90-1944 (February 13, 2006), Keith Hanselman, 42 ECAB 680 (1991), Ellen G. Trimmer, 32 ECAB 1878 (1981).

Claimant was provided an unsuitable job offer based on obsolete medical evidence. As a consequence, every injury and/or aggravation that arises from the inappropriate job offer is compensable and must be determined to be in performance of duty.
When you respond to OWCP by citing the ECAB, OWCP must then either reverse the decision or show where you and the ECAB are wrong, which they can't do since the ECAB out ranks OWCP.

OWCP relies on you not knowing what the "rules" are, they rely on you to believe whatever they tell you. Show them you do understand the "rules", that you won't put up with bad decisions and that you'll fight back by citing the FECA Manuals and the ECAB. If you do, you might find that suddenly they can make the right decisions.

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