Sunday, May 1, 2011

Suspension of Benefits

Today, we're going to talk about suspension of benefits for obstruction of or failure to attend an OWCP directed medical examination. An OWCP medical examination can be a second opinion examination, an Independent Medical Evaluation, (IME), Functional Capacity Evaluation, (FCE) or any other medical examination scheduled by OWCP on your behalf.

The legal provisions OWCP uses to suspend your benefits can be found at 5 U.S.C. 8123(d), which states:
"If an employee refuses to submit to or obstructs an examination, his right to compensation under this subchapter is suspended until the refusal or obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the period of refusal or obstruction is deducted from the period for which compensation is paid."
When scheduling you for a medical examination, OWCP's only requirement is reasonableness. OWCP can send you to medical examinations as frequently as they determine is reasonable and at the times and places it determines.

It is OWCP that determines what is reasonable for OWCP to do and I can tell you OWCP rarely finds themselves unreasonable. So even if OWCP sends you to one examination after another, even if OWCP does engage in doctor shopping, or seeks a specific opinion, you still must attend the appointments or face suspension of your benefits.

Doctor shopping is when OWCP sends you to multiple physicians in an attempt to obtain a specific opinion. There are very few instances where OWCP and/or the ECAB finds that OWCP was in fact involved in doctor shopping. The precedent was set in the case of Carlton L. Owens 36 ECAB 608 (1985) and there is a decision where the Board found OWCP did engage in doctor shopping. That case is: http://www.dol.gov/ecab/decisions/2000/May/98-0726.htm In this case the OWCP sent the Claimant to multiple second opinion physicians and the Board found the OWCP engaged in doctor shopping.

On the other side of the coin is the case http://www.dol.gov/ecab/decisions/2005/Dec/05-0116.htm In this case, the Claimant was sent by OWCP to multiple physicians and the Board found that OWCP was NOT involved in doctor shopping.

It's extremely hard to prove a case of doctor shopping. Not only do you need for OWCP to send you to multiple physicians, but it also seems OWCP must also have sent leading questions to the physician(s).

An inaccurate Statement of Accepted Facts, (SOAF) is not a valid reason for not attending an OWCP directed medical examination. See the decision: http://www.dol.gov/ecab/decisions/2008/Aug/07-2283.htm

If OWCP has scheduled an appointment that is far away from you, and they often do, the distance you must travel is not a legitimate excuse for not attending the appointment unless you have medical documentation. Your medical documentation must explain WHY, medically, you cannot travel the distance. You can notify OWCP and inform them that you require transportation to the examination. Transportation to/from a medical examination must have prior authorization by OWCP or the cost of the transportation will be denied.

Under 20 C.F.R 10.323 any actions by a Claimant's representative will be considered the actions of the employee for the purpose of determining whether a Claimant refused to submit to, or in any way obstructed, an examination required by the OWCP.

This means that whoever is hired to represent you acts on your behalf and your representative's comments and actions are considered to be your comments and actions. It will not be the representative that has to deal with the results of those actions, it will fall on the Claimant.

This decision is the perfect example of the effects of a representative's actions having a negitive impact on the Claimant: http://www.dol.gov/ecab/decisions/2003/Jun/03-0354.htm In this decision the Board concluded that the Claimant's representative obstructed the medical appointment through intimidation by writing to the physician. The moral of the story is, be aware of what your representative is submitting on your behalf.

When an FCE is performed, the person administering the FCE may include comments regarding the extent of your cooperation and the validity of the test results. OWCP can use these comments to determine non-cooperation and consider your actions obstruction and suspend your compensation. You can find more information about FCE's under the post: "Functional Capacity Evaluation, (FCE) Reports"

In order for OWCP to invoke the provisions of the law and suspend your compensation, the CE must ensure that you have been properly notified of your responsibilities. When you receive a letter notifying you of the scheduled examination, OWCP should include a paragraph explaining the consequences of not attending the examination. This paragraph should also include the information under 5 U.S.C 8123(d). If this information is not sent to you, you have not been properly notified.

In addition, if you don't attend the scheduled appointment, OWCP must give you time to object to the choice of physician and an opportunity to provide an explanation for not attending the appointment. This comes in the form of another letter from OWCP giving you 14 days to provide an explanation as to why you didn't attend the appointment. OWCP cannot suspend your compensation until after it meets these requirements.

Even if you receive notice of a scheduled examination and even if you inform OWCP you refuse to attend the appointment, OWCP cannot suspend your benefits until after the time limits of the letter giving you 14 days to provide an explanation have expired.

In order to have your compensation restored, you must notify OWCP of your willingness to cooperate. This should be done by letter and should specifically state you're willing to cooperate and you will attend the medical examination. If a replacement appointment hasn't been made, you should specifically request OWCP schedule another examination.

Once you have attended the medical examination, your compensation may be payable retroactively to the date in which you notified OWCP you would attend the appointment. In other words, the date of your letter to OWCP indicating you will be cooperative and attend the appointment. In order for your compensation to be retroactively paid, you must not only notify OWCP but you must then attend the scheduled medical appointment.

The bottom line is that if OWCP schedules you for a medical examination, you should attend or you're risking the suspension of your compensation and it can take months or longer to have your compensation restored.

Policy regarding suspension and restoration of benefits can be found in the FECA Manual part two at 2-0810-13.

Here's a few ECAB decision regarding suspension of benefits for failure to attend an OWCP directed medical appointment:
http://www.dol.gov/ecab/decisions/2011/Feb/10-1205.htm http://www.dol.gov/ecab/decisions/2010/Aug/10-0246.htmhttp://www.dol.gov/ecab/decisions/2010/Feb/091597P.htm http://www.dol.govv/ecab/decisions/2010/Feb/09-1195.htm#_ftn7

The Code of Federal Regulations, (C.F.R.), United States Code, (U.S.C.) and Federal Employees Compensation Act, (FECA) Manual part two can be found on the "Links" page. Employees Compensation Appeals Board decisions regarding leading questions can be found on the "Useful Stuff" page.