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Saturday, April 2, 2011

Ask a Question

I had an Anonymous comment this morning that referred to a message that was left for me. I did not get that message.

Remember, you can post questions or suggestions at Get Answers on the left hand side of this page or
you can also ask a specific question or send a private message at:  http://theowcpclassroom.freeforums.org/
jesseslade@frontier.com

Don't be shy!

Tuesday, March 29, 2011

Researching a Doctor

Let's start our research topic with the ECAB. I've posted the link to the ECAB sites. To look for a specific doctor, use the ECAB by topic link, you can find it on the "Links" page. When you get to the site, check the box on the right hand side of the page that says Federal Workers' Compensation and use the search bar on the left side of the page and type in the doctor's full name: Dr. John J. Smith. See what comes up.

You have to confirm the cases that come up are the same doctor you're looking for. So check not only the physician's name, but the State and speciality. Beware, some regular OWCP doctors perform exams in multiple States. So even if it's a different State than yours, it might still be your physician.

Once you've searched the doctor's full name, try other versions, such as Dr. Smith, Dr. John Smith, Dr. John Smith, Jr., Dr. John Smith, III. Whatever variations there are...try them all.

Move on from the ECAB to your normal search methods...Google, Yahoo, whatever you use. Again, search the same way: Dr. John J. Smith, Dr. John Smith, Dr. Smith. Again, use whatever information you know to confirm it's the same doctor you're looking for.

Whenever you research a physician, certain web sites will come up. Healthgrades, Vitals, etc...these sites give a basic accounting of the doctor, where they are, what they practice, reviews, stuff like that. Although these sites might give you information, you can't use it as evidence when it comes to OWCP.

Remember, when you're arguing with OWCP, you're arguing with the Government. Some random review by anyone off the Internet isn't going to get you any points with OWCP. You need solid evidence. But sometimes you can get a feeling for the doctor off these sites. If there are lots of bad reviews, that's a clue you should keep researching the doctor. If the doctor has multiple addresses, then you know you're going to need proof confirming the doctor has multiple addresses.

A basic search will give you basic information. From your basic search, follow your leads and see if they produce anything.

After your basic search, try searching:
Dr. John Smith expert witness
Dr. John Smith IME (that's an Independent Medical Examiner/Evaluator)
Dr. John Smith QME (that's a Qualified Medical Examiner/Evaluator)
Dr. John Smith malpractice
Dr. John Smith workers' compensation
Dr. John Smith YOUR STATE workers' compensation (Example: California workers' compensation. New York workers' compensation)
Dr. John Smith law suit
Any law suit that includes the doctor can be used. The OWCP doesn't have to accept another court's opinion but they are supposed to take it into consideration. Some OWCP doctor's are regularly involved in testifying in court cases as 'experts' so any information you can find about that is helpful.

A lot of the doctors that OWCP sends you to also work for the State workers' compensation systems, Social Security and other Government Agencies. If you find proof of that, you can use it.

Go to your State Medical Board. Check the doctor's license to make sure s/he has one and it's current and valid. State Medical Boards will also list disciplinary action and/or sanctions. Also check to make sure the doctor is Board Certified. Just type California State Medical Board or New York State Medical Board (whatever your State is) into Google or whichever search engine you use. If you find the doctor has worked in multiple States, go to the State medical board of each of those States as well.

Anything that shows the doctor works doing examinations for State workers' compensation, Social Security, OWCP, etc...Or works as an expert witness against injured parties, instead of practicing medicine, you can argue that the doctor makes his living by doing these exams and/or court cases. That their livelihood relies on it which leads to bias.

Any proof of multiple addresses can be used. The doctor may list multiple addresses on their web site. You may find multiple States from ECAB decisions or State licensing Boards. Anyplace the doctor is advertising multiple addresses, you want proof of. A physician in private practice usually doesn't have more than two or three offices at the most. So a physician that has 10, 15, 20+ different addresses and/or multiple States is more than likely no longer in private practice treating patients everyday. When I find this problem, I tell OWCP the high number of addresses is disproportionate of a physician in private practice and I include my proof of the multiple addresses. Same goes with multiple licenses in multiple states.

A physician that is licensed in multiple States, has multiple addresses and you can prove does these examinations all day, more than likely isn't practicing surgery anymore. If the doctor is a surgeon who doesn't perform surgery, you can make the argument that they are no longer up-to-date with current surgical techniques and procedures, where your physician performs surgery on a regular basis and is current with the latest techniques, procedures, technology, etc...

What you're looking for is that the physician isn't acting as a physician. S/he isn't like your doctor with one office that sees patients everyday. You're looking for anything that shows the doctor makes a living doing nothing but performing exams for Government Agencies; OWCP, Social Security, State Workers' Compensation, etc...or a doctor that regularly testifies in court.

I also check certain web sites. These sites contract out Independent Medical Examiners, Expert Witnesses, etc...I find a lot of OWCP's physician's are also listed on these sites. I'm putting those sites on the "Links" page under: Research, Physicians.

If you find a lot of the information I've talked about here, you might also want to do a Freedom of Information Act, (FOIA) request on the doctor. I've put a sample letter on the "How To" page. With a FOIA request, you can ask OWCP for any complaint's against the doctor and how many times they've been used as an IME in all Districts in the last four years.

You can't request any information on how many second opinions the doctor has done for OWCP since OWCP doesn't keep track of that information. But IME's are to be chosen at random and because of their medical importance, OWCP does keep records on how many times the physician was used for an IME. If you find a doctor has been used as an IME on a fairly regular basis, then you can argue OWCP is not choosing this physician at random. Especially if the doctor is from a large city. In a large city, a physician being chosen at random, wouldn't be chosen more than two or three times at most.

If you have a complaint about the physician, you must send that complaint to OWCP PRIOR to any examination. If you send a complaint after your exam, OWCP will just come back saying you just didn't like the physician's report. If the exam is scheduled too soon and you can't get all your research in, do a basic search. If it looks like you might have to file a complaint, then write your CE a letter stating that your basic research on the physician may lead to a complaint, however the Office did not give you enough time to complete your research. That way you still have something in PRIOR to your appointment.

This information also works for any District Medical Advisor, (DMA) or other physician that OWCP may use. For nurses, change the State medical board to the State Nursing Board. For physical therapists use the State Physical Therapy Board. Don't just research the physicians, research the physical therapists, nurses, FCE facilities, any medical personnel that might have a negitive effect on your claim.

If you've ever been sent to a second opinion or IME, even if you don't have an appointment scheduled, research the physician's you've already been sent to. See if you find anything. Practice researching so that when you need it, you're familiar with what you're looking for. OWCP is just like anything else, no one's good at it at first, but when you practice, it gets easier.

Monday, March 28, 2011

District Medical Advisor, (DMA) Reports

Ah, the DMA's, you just gotta love them, although not in the good way. If a DMA has been involved in your claim and provided a negative report, there are some things you can do. The best advice I can give you is to read the report over and over and over. Then read it at least once more. The more familiar with the report you are, the more likely you are to find errors, contradictions and inconsistencies.

The DMA's report must be up to the same standards as all other medical reports and more often than not, the DMA's reports don't meet OWCP's standards. You can pretty much count on the DMA's reports to be lacking required elements.

First, let's take a look at some of the rules regarding DMA's from the FECA Manual part 2 at 2-0810-8. You can find part 2 of the FECA Manual on the "Links" page.

FECA part 2 at 2-0810-8(a):
"The DMA's primary medical functions are evaluating medical evidence and interpreting physician reports. The CE seeks evaluation from the DMA in order to proceed with developing and weighing the medical evidence. The CE seeks interpretation from the DMA only where the medical evidence is complete and sufficient prior to such review. In either case, the comments or opinions of the DMA should be explained or rationalized."
Read your DMA report and see if it actually does provide an explanation or medical rationale. A few examples; the DMA says your condition should have resolved in six weeks but he doesn't say how or why he knows the condition should have resolved in six weeks or what information he based his opinion on. The DMA states continuing disability by your physician is unreasonable, but again he doesn't say how or why he knows your physician is wrong or what information he used to form his opinion. The DMA states the proposed surgery isn't warranted, but he doesn't say why it's not warranted or how he knows it's not warranted or what tests back up his opinion.

Medical rationale basically boils down to the HOW and WHY of the opinion. If a physician states an opinion, they must say why it's their opinion and how they know it to be true. Medical rationale is an explanation of everything that determined the physician's opinion or what it was that made up his mind.

FECA part 2 at 2-0810-8(c):
"The DMA has no authority to decide the facts in a case, as this is a function of the CE. However, the DMA may state whether an accepted incident was competent to produce the injury claimed. The DMA should be presented with the correct factual framework for the medical opinion requested. A SOAF is often the best avenue for conveying this information. Where the DMA finds that a determination pertinent to the medical opinion has been omitted, he or she should inform the CE of the additional factual information needed to place the case in posture for a rationalized medical opinion.
When referring a case to the DMA, the CE should submit medical questions which are case specific."
The DMA has NO authority to decide the FACTS in the case...so if the CE asked the DMA if the Office should accept or deny a condition(s), the DMA's report is of no value because the OWCP asked an inappropriate question the DMA is not allowed to answer. The DMA's job is to answer medical questions.

Although, the CE can ask the DMA if the employment events could cause the injury. For instance, the CE could ask the DMA if falling off a ladder and landing on a concrete floor could injure a claimant's knee and shoulders. If being in a motor vehicle accident could cause a neck or back injury. If getting attacked by a dog could injure a claimant.

If your CE asked the DMA whether or not the Office should accept your condition(s) or consequential condition(s), or to decide the facts of your case, cite the FECA passage above and quote the question the CE asked the DMA then state the report is of no value because the Office asked an inappropriate question the DMA is not allowed to answer.

FECA part 2 at 2-0810-8(g):

"While the DMA may create a conflict in medical opinion, the DMA may not resolve it. Furthermore, the DMA's reasoned medical opinion will not usually constitute the weight of the medical evidence in an accepted disability case, even if the DMA is a Board-certified specialist in the appropriate field of medicine and the AP [Attending Physician] is not a specialist and offers no rationale, because the DMA has not examined the claimant and the AP has a critical function in determining extent and duration of injury-related disability."
If you received notification the OWCP used a DMA's report to resolve a conflict in medical opinion, instead of sending you to an Independent Medical Evaluation, (IME) cite the FECA passage above and quote OWCP's notification which states the Office used the DMA's report to resolve the conflict. Then state that the DMA's report is of no value because a DMA's report cannot be used to resolve a conflict in medical opinion.

Your CE should have sent the DMA a Statement of Accepted Facts, (SOAF) or some other factual information. You should request a copy of the SOAF or other information that was sent to the DMA and check it for accuracy. If the SOAF is inaccurate or missing information, you can use that fact in your arguments to OWCP. I've put information regarding SOAF's, including ECAB decisions on the "Useful Stuff" page.

Not only should the SOAF be checked for accuracy, but the DMA report should be checked to see that the information contained in the SOAF is the same information contained in the DMA's report. In other words, did the DMA only use the SOAF (or other information) or did the DMA go outside the scope of the SOAF? OWCP physician's, including DMA's must rely on the SOAF, they can't go outside the information or questions provided to them. That's why the SOAF must be accurate. If the SOAF is inaccurate, the report is based on inaccurate information. DMA's must answer only the questions they were asked using your SOAF as the factual background.

Next, when your CE sends your file to the DMA, certain documents are "Bookmarked" for the DMA. Only these "Bookmarked" documents are sent to the DMA and these documents are what the DMA uses as the medical background of your case. You should request from your CE the list of "Bookmarked" documents that were sent to the DMA for review.

The CE should have sent questions to the DMA and you should request that the CE send you these questions and check to make sure they're appropriate medical questions.

As with any other OWCP medical report, you should check it for accuracy. Are the dates, names, places, etc...accurately reported?

In order to give a more accurate example of this process, I'm using actual information from the last DMA report I rebutted. To ensure the privacy of the claimant, I'm redacting the claimant's personal information. The DMA in this case is Dr. Arthur S. Harris. The issue is whether or not to add consequential injuries to the file. Dr. Harris' report states:

"The following report represents a review of the case file, which has been requested by the Office of Workers' Compensation Program. It should be noted, the claimant has not been personally examined or interviewed by this consultant.

The case file of [Jane Doe] is being reviewed at this time to address issues in memorandum dated December 15, 2010 from the Claims Examiner.

The claimant, date of birth, [January 01, 0000], was injured on [January 01, 0000] while in the performance of duty. The Office of Workers' Compensation Program has accepted cervical spondylolysis C4-5, C5-6 and C6-7, aggravation of cervical degenerative disc disease, cervical radiculopathy, bilateral sprains of the upper extremities and bilateral carpal tunnel syndrome as being work related.

The case file was reviewed by myself on December 4, 2010. At this time, it was my opinion that OWCP should NOT expand the accepted conditions in this case.

At this time, I have reviewed the entire case file as well as the Statement of Facts dated November 29, 2010. It is noted that the accepted conditions are 1) Cervical spondylolysis C4-5, C5-6 and C6-7; 2) Aggravation of cervical degenerative disc disease; 3) Cervical radiculopathy; 4) Bilateral sprains of the upper extremities; and 5) Bilateral carpal tunnel syndrome.

From review of the case file, I do NOT feel that OWCP should expand the accepted conditions in this case.

If there are any questions, please do not hesitate to contact me.

Sincerely,
Arthur S. Harris, M.D.
Orthopedic Consultant"
Based on the report of Dr. Harris, the claimant's consequential injuries were denied. This seems like bad news for the claimant, but that's not the case. After reading this 'report', can anyone tell me WHY Dr. Harris believes consequential injuries should not be added? Can anyone tell me what medical evidence or test results he relied on? By the time you're done reading any medical report, you should be able to say WHY the doctor had that particular opinion and what information the opinion is based on. A medical report that results only in the opinion of: Because I said so isn't a proper medical opinion or report.

The first thing I did with the report from Dr. Harris was send a letter requesting the CE send me a copy of the SOAF, the bookmarked documents and the questions posed to the DMA. When I received that information, the SOAF was incorrect, the OWCP asked the DMA an inappropriate question and the DMA's report contained no mention of any reports received or reviewed.

The CE indicated that forty five documents were sent to Dr. Harris for review. However, as you'll note, Dr. Harris does not discuss or mention ANY of the forty five documents provided to him, yet three times in his report he states that he reviewed the case file. This is an issue, as it is impossible to tell from his report what documents Dr. Harris did actually review or what information was contained within the documents he reviewed. What Dr. Harris is saying is that he has an opinion, but he gives no information on how he came to that opinion or what medical evidence he relied on to form the opinion.

Your DMA report should list the reports s/he reviewed (the 'bookmarked' documents). You should check to make sure that the DMA actually discusses all the reports and not just the reports from OWCP-directed exams, such as second opinion(s) or IME's.

Next, Dr. Harris states that OWCP should not expand the file, but gives no explanation how he arrived at this opinion nor did he provide any medical rationale to support his opinion. This is an issue as all OWCP medical reports must contain medical rationale to support the physician's medical opinion. As we know, OWCP doesn't accept an opinion just because the doctor says so. The physician MUST explain how s/he came to the opinion and why s/he knows it to be true. This does not just apply to a claimant's physician. It also applies to ALL of OWCP's physician's as well.

In this particular case, the CE asked the DMA whether or not the Office should accept consequential injuries. However, this question is inappropriate under the Act because the CE is asking the DMA whether or not conditions should be accepted or denied. The ECAB has addressed the role of the DMA in its decision in the case of Carlton L. Owens:

"The Office medical advisor's role is not to act in an adjudicatory capacity or address legal issues in the case, and the Office should carefully observe the distinction between adjudicatory questions which are not appropriate and medical questions which are appropriate."
The Board has held;
"A medical advisor should not offer opinions as to whether a claim or conditions should be accepted or rejected."

Office policy specifies;
"It is not appropriate for the DMA to offer opinions as to whether a case or medical conditions should be accepted." "The CE must always maintain responsibility for the case and should not consult the DMA to adjudicate claims or determine benefit entitlement, as these are primary functions of the CE."
Some of the arguments I made in response to DMA Harris' report are:

"The November 29, 2010 SOAF supplied to DMA Harris by the Office lacks sufficient detail and context and does not accurately represent what conditions the Office accepted as employment related. The SOAF includes only  five (5) of Claimant's seventeen (17) accepted conditions, omitting twelve (12) of her accepted conditions from all her assigned claims. The SOAF also omits any conditions which have been accepted as permanent by the Office or those added after Claimant's second opinion examination on June 23, 2010. The SOAF presents inaccurate filing dates and confuses the mechanisms of injury and claim numbers. Of claimant's five (5) accepted claims, only one (1) is depicted accurately."

"The CE is responsible for ensuring the information sent to the DMA is correct, complete, unequivocal and specific. The November 29, 2010 SOAF the Office supplied to DMA Harris is severely flawed and inadequate for use by the Office for any reason."

"The December 04, 2010 report of DMA Harris is of no probative value as it is not based on the actual facts of Claimant's files. Therefore, DMA Harris' December 04, 2010 report must be officially excluded from all of Claimant's files."

"The Board has held that medical conclusions unsupported by rationale are of little probative value. A physician's opinion on causal relationship must be one of reasonable medical certainty, but it must also be supported with affirmative evidence, explained by medical rationale and based on a complete and accurate medical and factual background, Willa M. Frazier, 55 ECAB 379, 384 (2004). The Office based its decision on a woefully insufficient medical opinion of diminished probative value."

The bottom line is, if you got a one or two page report from the DMA, there's an excellent chance that it's not a proper report, that it doesn't contain any medical rationale or other requirements. Most medical reports that contain medical rationale are more than two pages long. In that situation, you can fight the DMA's report just as you would any other OWCP medical report.

Also of note is that a DMA doesn't examine you. Because no examination results can be contained within a DMA's report, this makes the DMA's report of less value than that of a physician that did examine you and reported the exam results.

Don't be afraid to rebut an OWCP medical report. If your arguments are supported by the FECA Manuals and/or the ECAB, then OWCP will have to either change their decision or go back to the physician for a proper medical report. Sometimes the physician can't do it or the supplemental report is still lacking. When you force a DMA to follow OWCP's rules, sometimes their opinion changes because you're demanding more than because we said so.

When it comes right down to it, OWCP's physician's aren't that great at writing medical reports, OWCP just allows them to be lacking. You don't have to accept that. If your DMA report is lacking, fight it. You can't get in trouble for demanding accuracy or demanding that your OWCP medical reports are actually up to standards.

Sunday, March 27, 2011

The Paper Trail

I hear it all the time, a claimant has called OWCP and nothing happens. They leave messages for their CE and get no response, so they call again, leave another message...nothing happens except they get frustrated. Or maybe the CE does call back, promises action but then doesn't follow up. Maybe you're even lucky enough to play phone tag for a week. It's common. Happens everyday.

Personally, I don't do phone calls with OWCP. When you talk to your CE a CA-110 is supposed to be completed. This form basically says there was a call and OWCP's version of who said what. Problem is, when you get a copy of your file, your telephone calls are often misrepresented on a CA-110 and a lot of times, your issue didn't get fixed or answered.

If OWCP happens to call me, I tell whoever is on the other end that I would prefer to have the information in writing. I follow that up with a letter regarding the call, who said what and how I'm expecting confirmation in writing.

Call your CE and you've got no proof what was or wasn't said. No proof of what is or isn't going to get done. All you've got is OWCP's version of a phone call in your file.

Me, I like the paper trail. I can state all the facts in a letter, I can be clear and concise. I can cite the FECA Manuals and ECAB decisions to prove my point. If my letter doesn't get answered, I can send a second request or a third if I have to. If I need to go higher up the 'food chain' to a District director or member of Congress, I have clear proof of what I said, when I said it, how many times I said it and who I said it to. Not OWCP's version of events, but actual proof they can hold in their hands. No one can say it didn't happen.

I can send my letter delivery confirmation and print out proof OWCP received it, right down to the time of day. I pick up a stack of delivery confirmation receipts at my Post Office and I put the confirmation number on every piece of paper I'm sending under that number. I can't even count the number of times I've received a letter from OWCP saying they didn't get a letter and I've been able to prove it was in fact received.

When OWCP answers my letter, I've got written proof on OWCP letterhead of what was or wasn't said. As a bonus, it's even signed, so I've got someone to name later if I need to. If later OWCP tries to deny what they said, I can quote their letters and prove it. Besides, I've never been disappointed by what they will actually put in writing. Their lack of knowledge shines through and just makes my job that much easier.

If you've found this site, you've probably read other claimant's stories. One common theme seems to be that OWCP doesn't always do or say the right thing. If it happens to you, how can you expect to overturn a decision, or change a conclusion, right a wrong if you have no paper trail? Think about this, all of OWCP's letters are form letters. That letter you got from them isn't special. It's a form letter and they plug in your specifics. It's not the form part of the letter they get wrong...it's your specifics. The more you let them write to you, the more weapons you have to use against them. The more you have to use against them, the easier it is to overturn a decision or change a conclusion or right a wrong.

Hey, I'm not going to sit here and tell you anything with OWCP is easy. I don't know of anyone who didn't have to fight a denial, bad decision or questionable medical opinion (or some other thing) at some point in their claim. Some people get nothing but denials and fighting even when they've proven their case six ways from Sunday. You can't fight if you don't have any weapons, you can't fight with only OWCP's version of events. If you want weapons, they're in your paper trail.