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Thursday, March 8, 2012

Claimant Needs A Formal Decision

In order to appeal one of OWCP's brilliant formal decisions, you first have to get OWCP to issue the formal decision. This is not always as easy as it sounds.

First and foremost, if OWCP has acted to terminate any benefits without a formal decision, this is a serious violation of the Federal Employees Compensation Act, (FECA) and you should immediately let OWCP and your Congressperson know this. OWCP cannot terminate or suspend your benefits without just cause, in accordance with the FECA; which requires a formal decision letting you know exactly how and why it came to its decision. The formal decision must come BEFORE OWCP terminates or suspends your benefits.

Today, I'm talking about formal decisions that you, the Claimant are attempting to get out of OWCP. For instance, you're attempting to get your claim expanded to include new or newly aggravated conditions, consequential injuries, back pay, denied travel expenses, etc...there are any number of reasons you may want and/or need a formal decision issued.

Without a formal decision, OWCP holds all the cards. Unless and until you appeal a formal decision, nothing changes, but if no formal decision is issued, there's no way you can appeal. Sounds like OWCP. You're stuck in limbo and it can seem there's nothing you can do.

This is how I get OWCP to issue a formal decision that you, the Claimant are asking for:

First, the request needs to be in writing. If you've made phone calls, document them (date, time, who you talked to, what transpired) and include them. Lay out the reason(s) you believe you're entitled to a formal decision and include any documentation/evidence. Basically, show OWCP what you're talking about, the documents you have to prove your claim, any regulation/law that backs you up and of course, all the times you've attempted to get a formal decision issued on this particular matter.

If you have multiple issues, do this for each issue. You can send them all together, but I suggest you do them separately so you don't confuse anyone.

Let OWCP know it has 30 days from the day they receive your packet to issue you a formal decision on the matter or provide you a legitimate reason why it will not issue a formal decision. I would send this Delivery Confirmation, Certified Mail, or another way that tracks your packet and proves when OWCP receives it.

If you pick up the tracking slip before you send it out, you can write that tracking number on each and every page you send (remember to make copies for your records) and then each page is tied to that tracking number. You can then prove OWCP received the documents you actually sent. You can go to the Post Office, UPS, FedEx, etc...and pick up tracking slips, Delivery Confirmation and/or Certified Mail receipts. You can pick up extras for future use.

If you do not receive your formal decision or legitimate explanation within 30 days of receipt (plus 5 days mail time to you), most people will probably tell you to climb the "food chain", Senior Claims Examiner, Supervisor, District Director, Regional Director, Secretary of Labor, even the President himself. Personally, I've found the "food chain" method to be a complete waste of time that in most cases only ends up with further delays.

I say you've given OWCP ample opportunity to respond to your written request...go directly to your Congressperson. Copy what you sent OWCP to include with your letter. Write a letter to your Congressperson and let your Congressperson know that you are only asking for OWCP to follow its own regulations by issuing a formal decision or providing you a legitimate reason why it will not. Once this is received, your Congressperson should send you a release to sign (or just call and ask that a release be sent to you).

By law, OWCP has 30 days from the date the request from your Congressperson is received to respond to your Congressperson. OWCP might not want to respond to you, but they are forced to respond to your Congressperson.

Just FYI, most Congresspeople have OWCP liaisons now and that is more than likely the person you'll be dealing with. You notify your Congressperson who sends you a release to sign, you sign and return the release and pass on your information/evidence, your Congressperson passes your information to OWCP, when OWCP recieves your Congress person's request, the 30 day clock starts ticking. Within 30 days (plus 5 days mail time), OWCP responds to your Congressperson and your Congressperson then sends you a copy of OWCP's response. Basically, you're using your Congressperson as a middleman to force OWCP to do what they're required to do.

I can tell you this, if you get your Congressperson involved, by law there's a time limit for OWCP...30 days from the date OWCP receives the Congress person's request on your behalf. OWCP should issue either a formal decision or the reason(s) it won't issue a formal decision. Formal decisions are not issued for everything, some things are just standard form letters, standard operating procedure, etc...If this is the case, you're entitled to know that. If a formal decision is required, you're entitled to actually receive the formal decision from OWCP.

The "food chain" method has no expiration date. If you give each link of the "food chain" 30 days to respond, how many links in the chain until you get a response? What if you actually do have to go the the President of the United States? How long would that take?

Wednesday, March 7, 2012

They Won't File My Paperwork...

So, you've been injured at work, completed your paperwork and submitted it to your employer. All the things you are required to do.

But then, lo and behold, you find out your Agency (or OWCP) never completed their portion or never sent your paperwork to OWCP or never processed your paperwork, delaying your claim and probably your benefits. What can you do?

There's a United States Code, (U.S.C.), U.S.C. Title 18 Chapter 93 Section 1922, that should help you. This law spells out the responsibilities of those involved in your OWCP claim. I've used this law many times in the past with much success.

"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 there under, 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."

Here's my suggestion if you're in this situation...You should write a letter to OWCP with copies of the incomplete document(s) (CA-7, CA-1, CA-2, CA-2a, CA-16, etc...) with a copy of 18 U.S.C. 1922. You should demand that OWCP alert your Agency to its responsibilities under this law. OWCP should immediately contact the Agency who should then complete the missing paperwork, solving the problem.

If you can't get copies, complete the missing document again, sign it and include it with your letter to OWCP. Explain that your Agency will not provide you with any documentation which indicates the paperwork has been completed and processed as required by law and that's why you're sending it directly to them for help.

I would also send a copy to your Agency to put them on notice that you won't be rolling over for them and that you expect your claim to be handled properly and according to the rules, regulations and laws.

If this doesn't solve your problem, I suggest you bypass your Agency and OWCP, copy everything and request help from your Congressperson.

Your Agency and OWCP have tactics to delay your claim which delays your medical treatment and delays your compensation. OWCP may not want to answer you, but by law, they must answer your Congressperson within 30 days.

Here's the link to 18 U.S.C. 1922:

http://www.gpo.gov/fdsys/pkg/USCODE-2006-title18/html/USCODE-2006-title18-partI-chap93-sec1922.htm

OWCP Physician's in Arizona & Washington

I was contacted today by a physician's office. They had a Claimant who was having difficulty with their OWCP claim and were requesting help.

Through the course of our conversation, I was most impressed by the level of concern for the Claimant and her injuries as well as the knowledge of the OWCP system.

I was informed that this is a physician's office where OWCP Claimant's are WELCOME.

I'm passing on their information:

Arizona Injury Medical Associates
(480) 347-0941

http://arizonaima.com/

They have offices in Phoenix, Arizona and the Seattle, Washington area.

Their physicians are Board Certified, they know what's required in an OWCP report and they have the ability to do OWCP impairment ratings under the 6th Edition to the Guides to Permanent Impairment.

I have not seen any of their reports and I have not met with or been examined by any of their physicians. However, based on my conversation, I believe a Claimant will get what is required for OWCP. I can tell you that their concern was for the CLAIMANT and helping the Claimant was their sole reason for contacting me.

Sunday, March 4, 2012

Statement of Accepted Facts, (SOAF)


OWCP is not a game. Unfortunately for Claimant’s, no one told OWCP. So if you want to conquer the OWCP system, you need to treat it like a game. When OWCP makes a move, you make a counter move. If you know what’s required of OWCP (the ‘Rules’ of the game), you can make sure you get documentation into your file so that if OWCP doesn’t follow its own rules and regulations, not only can you bring that up, but you’ve got documentation in your file that is accurate and outweighs theirs.


One of the places you can anticipate is the SOAF. At some point in the life of your claim, an SOAF will be prepared. That’s a fact. So if we know that, why not get your own version of your SOAF into your file?
When you’re sent to an OWCP-directed examination, the physician is given the SOAF with your medical records. The SOAF is the ONLY framework the physician is supposed to use as the SOAF is exactly that, the facts that are accepted in your claim. If the OWCP physician goes outside what’s in the SOAF, you can use that to get the report thrown out.
The SOAF is required to contain specific information, a topic I’ve covered before, and these requirements can be found in the FECA Manual part two at 2-0809. Here’s the link: 

http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-PT2/group3.htm#20809 
First and foremost, if an OWCP-directed physician agrees with your physician, in other words the report is in your favor, even if the report is flawed, inaccurate or basically the only correct information is your name, you DO NOT want to bring this up to OWCP as they’ll go back to the physician for clarification which could end up with a report that is now against you or they’ll just send you out to another OWCP physician to do another report. My theory is, that’s their problem not yours. You’ve got enough to deal with, why go after what is essentially in your favor even if it is an inaccurate waste of paper?
Here’s another thing. Let’s say you’re sent to an OWCP-directed exam and the report is in your favor but your SOAF is flawed. You DO NOT want to bring this to your CE’s attention either. Why? Because sooner or later you’ll be sent to another OWCP-directed exam and CE’s for the most part will just slap on a new date and a couple of updates and send the SOAF out again. If it was flawed before, it will more than likely be flawed the next time. You go into the next OWCP-directed exam knowing the SOAF is flawed and you already have a weapon against the report if it goes against you.
In most claims, the treating physician never sees your SOAF. So your physician has more leeway than an OWCP-directed physician because they can go outside the framework of the SOAF. Why not use that to your advantage?
The bottom line is if your SOAF is inaccurate or missing information, this is the basis to get your second opinion or Independent Medical Evaluation, (IME or Referee physician) thrown out. An inaccurate SOAF equals an inaccurate medical report. If there are other flaws in the medical report (and there usually are), this is an excellent one two punch for the Claimant.
For example, let’s say that you have accepted conditions on two (or more) separate claims. It’s common for OWCP to conveniently forget to mention one of the claims and/or accepted conditions. If only one claim is mentioned in your SOAF, then your SOAF is not accurate and this can be brought up to fight the medical report. If all the accepted conditions aren’t listed, the SOAF is not accurate.

Here's a couple of ECAB decisions that were ordered back to OWCP to combine the cases:
http://www.dol.gov/ecab/decisions/2012/Jan/11-0779_O.htm
http://www.dol.gov/ecab/decisions/2012/Jan/11-1208_O.htm
You may have medical conditions that cover more than one part of the body. For instance, you may have an accepted orthopedic condition and an accepted mental condition. If OWCP sends you to an Orthopedist and your SOAF only lists the orthopedic conditions, the SOAF is still not accurate. Why? Because you’re a whole person, you are not a list of broken parts.
By the same token, if an Orthopedist discusses your mental conditions and doesn’t have the medical degree to do so, then the Orthopedist isn’t qualified to determine residual effects of your mental condition(s) are they?
In this example, OWCP would be required to send you to an Orthopedist and a Psychiatrist.
Also, mental conditions require a different set of requirements in your SOAF, such as accepted employment factors. Again, this information is readily available in the FECA Manuals.
Some positions require a physical examination prior to being hired. If this is the case, you should request (in writing) a copy of your personnel file from your Agency. This file should contain a copy of the physical examination and should prove that you were in good health prior to beginning your employment since we know you weren’t hired if you were already busted up.
Your physician can discuss the results of the entrance exam and include a copy with his/her report. Entrance physical exams are a great tool to show your good health when you began your employment and in some cases show the extreme nature of your medical conditions by comparing your current test/exam results with the entrance exam results. This is especially true if you’ve been Federally employed for decades…young and spry going in, not so much after on the job injuries.
One item usually lacking on your SOAF is a description of your physical duties. Most SOAF’s list the job title and a couple of physical activities, like Letter Carriers drive a Postal vehicle and deliver mail. Law Enforcement Officers, (LEO) arrest people and carry a firearm. An Assistant types. A nurse administers medication. Their descriptions hardly make known the actual physical duties of any given job.
So today, I’m giving you a couple of examples of how your physician should list your physical duties. The majority of people I deal with are Postal employees and LEOs, so here examples of physical duties for Letter Carriers and Law Enforcement Officers, (LEO). But this can be tailored to fit any job title at any Agency. Just list out what you do, what you lift, carry, etc...I’ve used these two descriptions many times with good results.
The accepted conditions should be listed with their corresponding ICD-9 Codes. You can type this out for your physician. If s/he puts it on his/her letterhead and/or includes it in his/her report it becomes part of your medical evidence to support your claim. This is best when used in conjunction with a medical narrative.
For newbies, in order to get your claim accepted, your physician needs to include a physical description of your job in a medical narrative.
For Letter Carriers:
Insert your name, date of birth 00/00/0000 began working for the United States Postal Service, (USPS) as a full time city letter carrier beginning 00/00/0000. S/he is right/left hand dominant.
Letter carriers are regularly required to lift and carry 10 pounds continuously and 70 pounds intermittently from floor to waist height or higher as often as required on a daily basis up to 8 hours per day and a maximum of 12 hours per day.
Simple grasping and fine manipulation are required up to 8 hours or more per day, driving, sitting, standing, walking up to 6 hours or more per day, twisting up to 4 hours per day, climbing, kneeling, bending, stooping, pushing, pulling, reaching above the shoulder up to 2 hours or more per day.
On average, letter carriers spend 1 ½-2 ½ hours per day in the office casing mail which requires continuous standing, twisting, turning and reaching above the shoulder. Mail is loaded into trays and/or tubs which can weigh as much as 35 pounds or more each. All office duties require continuous twisting, turning, bending, lifting and stooping.
Street duty may last up to 6 hours or much longer. Letter carriers work in all types of weather on terrain from concrete to sand to mud, from hilly to flat grounds, rugged rock filled paths or downtown street sidewalks. Letter carriers may be exposed to snow or ice covered terrain as well as rain soaked ground cover 8 hours or more per day. Street duties require constant bending, twisting, stooping lifting and climbing of stairs or hills. The job of a city letter carrier is physically demanding employment which exposes the letter carrier’s body to constant pressure upon feet and knees and upper and lower body.
If this applies, it should be included as well:
As a city letter carrier, insert your name worked walking routes and was required to carry a satchel weight 35 pounds or more on his/her right/left shoulder. This can be especially useful if you have a shoulder injury.
Frequent heavy lifting and carrying combined with constant twisting, turning, reaching, reaching above the shoulder, bending and stooping makes the physical requirements of a letter carrier more strenuous than those of the general population.
_______________________________________________________________________________
For our LEO example, we’ll use a Criminal Investigator with the Department of Homeland Security, (DHS). You should change the information to fit your job title/duties:
Insert your name has been employed by the Federal government as a Criminal Investigator for the past 15 years (15) with the Drug Enforcement Administration (DEA) and currently with the Department of Homeland Security, (DHS). S/he is ?? years old and right/left hand dominant.
If you had military service as well, a short statement should be included.
In addition to civilian service, insert your name served in the insert military branch which included a tour as insert military title deployed in combat operations insert where you were deployed. 
In the course of fifteen (15) years of Federal service, insert your name completed two rigorous law enforcement training academies. Insert your name completed basic special agent training at the DEA Academy in Quantico, Virginia. Insert your name also completed the Criminal Investigators Course at the Federal Law Enforcement Training Center in Glynco, Georgia. 
During his/her training, insert your name was required to complete extensive amounts of firearm training, including extensive use of shoulder fired weapons. S/he was also required to complete physical training, including distance running, sprints, obstacle courses, push-ups, sit-ups, weightlifting including bench pressing; defensive tactics that included strikes to the brachial plexus; boxing and grappling.
Some of insert your name required training included the vehicle pit maneuver which entailed motor vehicle collisions at approximately 30 miles per hour. These maneuvers were required both as driver and passenger. 
As a insert job title (Border Patrol Agent, Criminal Investigator, etc…) insert your name has been on numerous searches and arrest warrants. S/he has had to wrestle suspects on the ground, has had to tackle suspects, and navigated various obstacles, both on foot and in vehicles, in pursuit of subjects, inflicting great strain on his/her body.  Over the course of the last fifteen (15) years, insert your name participated in hundreds of operations and arrests, working in some of the nation’s most violent and dangerous communities. 
For LEOs, I suggest you include your three most physical incidents in your career, especially those that resulted in any injuries or any previous OWCP claims. For example having to tackle a suspect to the ground, an intense foot chase, a suspect that resisted arrest or if you’ve ever been shot at, etc…
The details should be short and state just the facts.
The job of a insert job title is physically demanding employment which exposed insert your name to constant pressure upon feet and knees and upper and lower body.
The physical requirements of a law enforcement officer are more strenuous than those of the general population.