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Wednesday, April 6, 2011

Where's My CA-7?

I hear the same story over and over...claimant's who file a CA-7, Claim for Compensation are not getting their CA-7's properly submitted by their Agencies. I hear this story too often for the problem to be random, un-trained personnel. My personal opinion is that it's done on purpose.

When the processing of your CA-7 is delayed, your compensation is delayed, which in turn causes a financial hardship. By law, your Agency has five days to process your CA-7 and file it with OWCP. If you're having serious problems with your Agency processing your CA-7, I've found this works pretty well...

On your next trip out of the house, stop by your local Post Office and pick up some Delivery Confirmation or Certified Mail receipts (the choice is yours) and Priority Mail envelopes. Pick up a small stack, since it's handy to have them when you need them.

After you complete your CA-7 write the tracking number on the CA-7 you're submitting and using the Priority Mail envelope, submit the CA-7 as you normally would. If you know the name of the person you're sending your CA-7 to, make sure you put their name on both the tracking receipt AND the envelope. Make sure you write the same tracking number on each page you're submitting.

When you write the tracking number on the document, no one can come back later and say they didn't receive it, that wasn't the document submitted under that particular tracking number or that a different document was submitted under that tracking number. The tracking number now identifies the document.

After you mail the CA-7, track it online and once it's delivered, print out a copy of the delivery receipt. Now you have absolute proof, including the time, the CA-7 was received by your Agency. I've included the link to USPS Track and Confirm on the "Links" page.

If your CA-7 is not processed timely, write a letter to your Agency, but go up the "food chain". Address your letter to the supervisor, manager, department head, district director or whoever is above the person or department that processes your CA-7's. You can't expect the person or department that's creating the problem to fix the problem...so you should go above their head.

The laws that govern the processing of your CA-7 fall under The Code of Federal Regulations, known as C.F.R. and the United States Code, known as U.S.C. These are the C.F.R. and U.S.C. that apply to processing your CA-7:
"Upon receipt of Form CA-7 from the employee, or someone acting on his or her behalf, the employer shall complete the appropriate portions of the form. As soon as possible, but no more than five working days after receipt from the employee, the employer shall forward the completed Form CA-7 and any accompanying medical report to OWCP, 20 C.F.R section 10.111 Subpart B (c)."
"Whoever, being an officer or employee of the United States, charged with the responsibility for making the reports of the immediate superior specified by the FECA, 5 U.S.C. section 8120, who willfully fails, neglects, or refuses to make any of the reports, or knowing files a false report, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under sub-chapter I of chapter 81 of Title 5 or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that sub-chapter or any extension or application thereof, or regulations prescribed thereunder, shall be fined $500.00 under this title or imprisoned for not more than one (1) year, or both, 18 U.S.C. section 1922."
In your letter to the Agency, state the facts; the date the CA-7 was submitted, the date the CA-7 was received and the person the CA-7 was sent to for processing (if  known). Quote the C.F.R. and the U.S.C. and make a statement regarding the violation(s) your Agency has committed.

Include a copy of the CA-7 that shows the tracking number and the USPS track and confirm receipt showing the date and time the Agency received the CA-7. Send a copy of the letter, including the attachments to OWCP and the person (if known) who was in charge of processing your CA-7. Make sure all this information is included in your letter.

Every situation is different, but the body of your letter should go something like this:
On 00/00/0000 via Delivery Confirmation Number: 123-456-7890, I submitted a CA-7, Claim for Compensation to Ms. Jane Doe Injury Compensation Specialist for the period 00/00/0000 through and including 00/00/0000.
The attached USPS Track and Confirm receipt indicates the Agency received the CA-7 on 00/00/0000. It has now been eight (8) working days since the Agency received my CA-7 dated 00/00/0000 and yet the CA-7 has not been processed and sent to OWCP as required by law.
Quote the C.F.R. and U.S.C from above just as I've written them.
Immediately process my CA-7 dated 00/00/0000 or provide a legitimate, written explanation why my CA-7 Claim for Compensation will not be processed in a timely manner in violation of C.F.R section 10.111 Subpart B (c) and 18 U.S.C. Section 1922.
Sincerely,
Your Name
Your Address
Your Phone Number

Cc: Your Claims Examiners Name
       Name of the person who was supposed to process your CA-7 (if known)

Attached hereto and set forth as if fully incorporated herein:

1. CA-7 dated 00/00/0000; and
2. USPS Track and Confirm receipt, Delivery Confirmation Number: 123-456-7890
In my personal experience once I've sent this letter, the delays stop. If the problem persists, write to OWCP and request that OWCP inform your Agency of its responsibilities of processing your CA-7 and request you be able to submit your CA-7's directly to OWCP because your Agency continues to violate the C.F.R. and U.S.C. delaying your rightful compensation. 

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.

Monday, April 4, 2011

Job Offers

At some point during your claim, you may be given a job offer by your employer. If you're given a job offer, you need to make sure all the proper procedures have been followed.
You can find information regarding job offers in part two of the FECA Manuals at 2-0814. I've posted a link to the FECA Manuals on the "Links" page.

The first thing you need to know about job offers is that they MUST be in writing. This means if your agency calls you on the phone and tells you to report to work without providing you a job offer IN WRITING, then it's not a suitable job offer. In that situation, you should tell your agency they must provide you a job offer in writing. Follow up any telephone conversation up with a letter to the agency and send a copy to OWCP. Your letter should state who you talked to, when you talked to them and what was said. You should state a suitable job offer must be in writing and cite the pertinent parts of the FECA Manual at 2-0814. If your employer stated on the phone that they will send you a written job offer, include that information in your letter by stating you're waiting for the agency's written job offer as stated by whoever you talked to.

In addition to the job offer being in writing, it MUST also contain a description of the duties to be performed. These are the job duties which are things like typing, filing, answering phones, casing mail, guarding the President, etc...

Your job offer MUST also include the specific physical requirements of the job. This is walking, bending, twisting, driving, reaching, lifting, pushing, pulling, etc...The physical requirements must be SPECIFIC, so your job offer needs to state how often you have to perform the duty, what the weight requirements for lifting, pushing and pulling are, if appropriate, whether the physical requirement is constant or intermittent.

Your job offer MUST also include any special demands of the workload and MUST also include any unusual working conditions, such as you'll be exposed to weather conditions, you'll be exposed to toxic chemicals, dust, etc...These items must also state the amount of time you'll be exposed to the unusual working condition(s) and what the special demands of the workload are.

Your job offer MUST include the organizational location and the geographical location of the job being offered. This means the agency location offering you the job and the actual address where you'll be performing the job (these two locations may be the same).

Your job offer MUST include the date the job becomes available and the date your response is required. As a side note to this, if your job offer has an end date in 90 days or less, it is not a suitable job offer. If you were a permanent employee when you were injured, you're entitled to a permanent job offer. Only employees that were temporary when they were injured get a temporary job offer. So if your job offer ends in less than 90 days, then the job offer is not suitable because it is considered a temporary job offer.

Your job offer should also include your pay rate. This is the rate of pay you'll be paid for the job in question.

Once the job offer is written it is supposed to be sent to your Claims Examiner, (CE) who should review it for suitability. If your agency doesn't provide OWCP a copy of the job offer, you should along with a letter stating the letter is your formal request for a determination of suitability. When the CE receives the job offer, the CE assesses the following information:

If a job offer involves less than four hours of work per day and the evidence shows you're capable of working for or more hours per day, the job offer is considered unsuitable.

A temporary job offer will be considered unsuitable (as described above).

If medical reports in your file document a condition that has arisen since your original injury, that disables you from the offered job, the job is considered unsuitable even if the subsequently-acquired condition(s) are NOT work related.
Once the CE has determined the job offer is suitable or not, you are to be notified by OWCP. If OWCP calls you, they must also follow that call up with a letter. If your CE calls you, you should follow that up with a letter stating, who you talked to, when you talked to them and what was said. If the CE stated they'll send you a letter confirming suitability, then make sure you put that in your letter as well. Remember to keep copies of your correspondence to OWCP for your records.

The letter the CE sends you should state that the job was found suitable, the job remains open and that you'll be paid the difference (if any) in compensation between the pay of the offered job and the pay you were receiving on the date of injury. In other words if the job is for four hours per day, OWCP will pay you 4 hours of compensation at your date of injury pay and your agency will pay you four hours at the rate of pay for the job offer position. The letter should give you 30 days from the date of the letter to either accept the job or provide written explanation of the reasons you're refusing it.

If you and/or your physician do not agree with OWCP, you must send your reasons to OWCP. No response from you is considered by OWCP as a refusal to accept the job offer. If you need to update your medical evidence, have your physician complete a new CA-17 and if necessary a narrative report. If the narrative report will take longer than 30 days, you can provide OWCP with the CA-17 and inform them that a narrative report is forthcoming and the approximate date you expect to have the medical report. You can find the CA-17 on the "Links" page using the Forms link.

If you accept the job, OWCP will terminate or reduce (as appropriate) your compensation benefits and you should receive a letter explaining the termination or reduction in your compensation benefits. You should receive a formal decision on the topic after 60 days of reemployment.
If you refuse the job after you receive your letter giving you 30 days and you provide OWCP with reasons for refusal, the CE must evaluate the evidence you submit and determine whether or not its valid. Some valid reasons are; the offered position was withdrawn, you found other work, your medical condition worsened and you are now disabled for the job in question, you provided evidence that your decision is based on your treating physician's advice, in other words, your physician told you you can't do the job or the job isn't suitable or within your restrictions.

If your reason is due to your physician or medical, you must have the physician provide medical reasoning in support of his/her opinion. So let's say your physician says s/he disagrees with the job offer because it requires you to reach and you have a no reaching restriction, that is not enough. Your physician must say why you can't reach. The physician needs to say that s/he disagrees that the job offer is suitable or within your restrictions and why. For instance; you have a no reaching restriction due to a full rotator cuff tear in your right shoulder which hinders your range of motion and ability to lift more than X pounds.  The rotator cuff tear restricts you from reaching due to loss of range of motion and the pain associated with the rotator cuff tear when you reach and lifting more than X pounds could damage the right shoulder further. Your physician gave you restrictions for a medical reason, s/he must state what those medical reasons are.

Your physician can't just say no way my patient can do that. They have to give a medical reason why you can't do it and your physician needs to be specific. Any test results that confirm what your physician is saying should be included in the narrative report as well as examination results.

Once a decision is made, OWCP will notify both you and your employer. If OWCP determines the job is unsuitable, you and the employer will be notified. If OWCP determines your reasons are not valid, they will issue a letter stating the job offer is suitable and remains open. This letter will give you 15 days to accept or refuse the job.

If you do not accept the job offer before the end of the 15 day period, OWCP will issue a formal decision for abandonment of job or refusing suitable employment and terminate your benefits. This includes your compensation and medical benefits and your right to any future schedule award.

The 30 day notice and the 15 day notice from OWCP is proper notification known as your Maggie Moore rights. OWCP is required to send you both the 30 day and 15 day notices before it can terminate or reduce your benefits.

It is very risky to refuse a job offer OWCP has determined as suitable. If you refuse OWCP will terminate benefits and with the appeals process it could take from months to years to get your benefits restored.

Even if OWCP determines the job offer is suitable, your employer has policy and procedure regarding job offers and you should read those policies to make sure your employer is following them. You should carefully read your job offer contract. Some job offer contracts indicate they're based on your treating physician's restrictions. If your job offer states this and the restrictions are based on a physician other than your treating physician, make the employer change the job offer to comply with your physician's restrictions.

Some job offer contracts state it is your responsibility to stay within your restrictions. If you accept the offer, even if it is not within your restrictions, you do not have to perform duties or physical requirements if those duties are outside your restrictions.

Anything you request from your employer, such as modifying the job offer to remain within your treating physician's restrictions should be in writing and a copy should be sent to OWCP.

Because of your employment injuries or a combination of employment related and non-employment related injuries, you may also qualify under the Federal Rehabilitation Act of 1973. You can be injured at work and be covered under OWCP and ALSO qualify under the Federal Rehabilitation Act. The Federal Rehabilitation Act is the Americans with Disabilities Act for Federal employees.

If you do qualify under the Federal Rehabilitation Act, that Act supersedes OWCP. In other words the Federal Rehabilitation Act is more powerful than OWCP. Again, every request under the Federal Rehabilitation Act should be in writing to your employer with a copy to OWCP. If the Federal Rehabilitation Act applies to you, I highly suggest you read the Act to understand your rights. I've posted the link for the Federal Rehabilitation Act of 1973 on the "Links" page.

You can sign your job offer under protest and/or duress. As an example, if your job offer does not remain within your treating physician's restrictions, you can sign it under protest for violating your treating physician's restrictions. If you're going to sign your job offer under protest or under duress, you should put that in writing and give a copy to your employer and send a copy to OWCP. State that you will be accepting the offer under protest or duress and the reasons why. Make sure the letter is signed, dated and that you keep a copy for yourself.

In addition, when you sign the job offer under or near your signature, you should write that you're signing under protest or under duress and the reason why.  This way, you've got a letter to both your employer and OWCP and the job offer contract also states you're signing under protest.

You only get one body in this life and the last thing you want to do is re-injure yourself or end up with new injuries because of an unsuitable job offer. When you put everything in writing, you have evidence to work with later if you need to appeal or fight a bad decision. The bottom line is, do not do anything your physician has declared you cannot do. It is your responsibility to stay within your physical restrictions both at work and at home. Your agency cannot force you outside your medical restrictions, if they attempt it, you should file the appropriate grievance or EEO complaint.

I've posted several ECAB decisions regarding job offers, including Maggie Moore rights, suitability, temporary, physical requirements and relocation. You can find these decisions under Job Offers on the "Useful Stuff" page.

Changes have been made to the FECA Manual regarding Job Offers here's the link to the new article:
http://theowcpclassroom.blogspot.com/2014/04/revisions-to-feca-manual-part-1-of-2.html

Sunday, April 3, 2011

Consequential Injuries

If you work with OWCP claimant's long enough, you'll find that certain claims are easier (not easy, just easier) to get accepted than others. For instance, a death claim is the hardest to prove since the claimant has died and can no longer fight for themselves. No one can examine the claimant, no one can question the claimant.

Emotional conditions rank number two on my list followed by a recurrence. I advise claimant's to avoid a recurrence claim if at all possible because it's really a trap. A recurrence must be a spontaneous change in your condition. It's the spontaneous part of a recurrence that's hard to prove.

Consequential injuries are much easier to get accepted because most CE's have no idea how to process consequential injury claims. They don't understand OWCP's own policies regarding consequential injuries.

OWCP will accept a sprain/strain injury simply because a strain/sprain is going to heal. There's not many of us that have seen a sprain/strain last for years. When OWCP sends you to a second opinion, it's easy for that physician to say the sprain/strain resolved. The problem is most people have more than a sprain/strain when they're injured at work.

A consequential injury is the natural progression of an injury or illness and also covers any complication of your injury or illness, such as complications from surgery or medications. Unless there is an intervening cause of your own making, a consequential injury is compensable.

What is an intervening cause of your own making? If you are aware of your injuries, limitations and restrictions and you do something you're not supposed to do, that's an intervening cause of your own making. For instance, you play a sport you shouldn't be playing and you get hurt or re-injury yourself. If you go hiking and fall off a cliff when you weren't supposed to be climbing in the first place, that's an intervening cause of your own making. Your not supposed to drive, but you do and get into a car accident and are injured. You have a heart condition and aren't supposed to run, but you enter a marathon. An intervening cause is something you do that is unreasonable in light of what you know about your accepted medical conditions.

On the other hand if you have a medical condition that affects your ability to walk and you fall, that is not an intervening cause. For instance, you have a knee condition where your knee gives out and you fall and injure yourself. You have a muscle spasm that causes you to crash your car. That is not an intervening cause of your own making. An intervening cause is something you have control over. It's something you do that you shouldn't do based on what you know about your injuries.

A lot of medical conditions progress to conditions that are worse than your original injuries. If you have a spinal condition, you may develop Myelopathy (spinal cord compression), a bulging disc may burst, your chronic pain may cause insomnia, a shoulder impingement may lead to a rotator cuff tear, your torn ACL may lead to a torn MCL, you developed pneumonia after surgery. Most degenerative conditions will progress into worse conditions. If any new condition develops because of your original injuries those are consequential injuries.

As with anything else in the OWCP system, getting your consequential injuries accepted begins with a narrative medical report from your physician. Your physician must state how the consequential injuries are related to the original injuries and provide exam results and a diagnosis with ICD-10 codes and any test results.

The word progression is important for any degenerative condition. Your physician should also explain how s/he knows a degenerative condition isn't 100% age related. During the natural aging process your degenerative condition will change and plateau. If your condition doesn't plateau, it just keeps getting worse and worse, that is not normal aging. If you're 35 years old and you've been diagnosed with Stenosis, that is not the aging process since it is known that Stenosis does not develop until age 50 in the normal population.

You can help your physician out by going to the Merck Manuals and researching your conditions. Some conditions are known to progress to worse conditions. Every OWCP district must have the Merck Manuals for reference, so you and your physician can use the Merck Manuals to back up your diagnosis. Some conditions in the Merck Manuals state the expected progression of the condition. If your physician states that this condition is not exclusive to you, that the information is readily available in places such as the Merck Manuals, it makes it much harder for OWCP to deny your claim because they'd have to discount their own reference materials. I've put a link to the Merck Manuals on the "Links" page.

In addition to a medical narrative, you need to submit a factual statement stating exactly how your injuries have changed, how the injuries affect your ability to do the normal things in your life, what pain or other symptoms the injuries cause, any medications you're taking, etc...

When you have your medical narrative and your statement, you should write a letter to your CE indicating that you request your consequential injuries be accepted and that your attaching a medical narrative and a factual statement. You should include at least one passage from Larson's on Workers' Compensation and at least one ECAB decision in your letter. It is the Larson's that OWCP does not understand and again is required in every District as reference materials. I've put the parts of Larson's that pertain to consequential injuries on the "Useful Stuff" page.

Even if OWCP denies your claim the appeal for consequential injuries is straight forward. Your arguments are the information contained in Larson's on Workers' Compensation, the FECA Manuals and ECAB decisions. All the information you need for a consequential injury appeal is on the "Links" and "Useful Stuff" pages.

If you allow OWCP to only accept a sprain/strain injury, you will not receive the proper treatment you need and OWCP will overturn your claim based on your sprain/strain injury resolving itself. If your injuries caused more than a sprain/strain, you have to fight to get an accurate diagnosis. It affects the entire future of your claim if you don't. If your conditions have progressed into new or worse conditions, you have to fight to have those consequential injuries accepted as well.