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Wednesday, November 30, 2011

Questions

I've been getting a lot of comments with questions. This blog doesn't allow me to answer direct questions.

If you have a question you'd like to ask, go to: http://theowcpclassroom.freeforums.org You can post your questions there.

Saturday, August 20, 2011

Physician Resource?

A lot of Claimant's are having trouble finding a physician that can handle their OWCP claim requirements. In addition to that, there are a lot of physician's who will no longer accept an OWCP Claimant simply because of OWCP's requirements.

I received an E-mail about a new company that is advertising physician's just for Claimant's in the OWCP system. According to the web site, this is an independently owned and operated company that have physicians that can document an OWCP claim and/or meet the medical report requirements. The web site states that the physicians have knowledge and understanding of OWCP and FECA procedures. They state they are Nationwide.

I know nothing of this company. I am not affiliated with them in any way. However, finding a physician that is aware of the OWCP requirements is not easy. If the statements on this web site are true, this could be a very useful tool for OWCP Claimant's and I thought it was worth passing on.

If anyone uses this company or has experience with their physicians and quality of their reports...please let me know.

Here's the information:

The company is called: FedDoctors.Com

http://www.feddoctor.com/ The web site has a search by zip code bar.

Telephone: 1-855-333-3627

Monday, August 1, 2011

Attorney's and Representatives revisited...contingency fees

I've been asked a lot recently about OWCP and representative's charging a contingency fee. Although I've written on this topic before, I'm revisiting it because of the amount of chatter I'm hearing recently.

As I wrote earlier; an attorney or representative for an OWCP claim cannot charge you a contingency fee, which is a percentage of your compensation and/or schedule award.

Although I don't know for sure, I think an attorney or representative gets away with charging a contingency fee because Claimant's aren't bringing this practice to the attention of OWCP or they're just not aware the representative isn't allowed to charge on a contingency basis. My guess would be the Claimant thinks THEY will get in trouble. That seems reasonable since Claimant's are always getting the fuzzy end of the lollipop in OWCPland. Well, I'm here to tell you, this is one of those rare instances that you should not get in trouble if you bring this issue to the attention of OWCP.

Even if a Claimant signs a contingency fee contract with an attorney or representative, the Claimant is not held responsible if contingency fees are brought to the attention of OWCP. Why? Because OWCP will not approve ANY contingency fee and like everything else in OWCPland, OWCP makes the final decision. If there is a contingency fee agreement, OWCP should determine that contract null and void, again because OWCP does not recognize or approve contingency fees. The Claimant should then be charged an hourly rate for the work performed on their claim.

Because OWCP makes the final decision, an attorney or representative can't sue you because of fees. Like everything else, what OWCP says goes unless the decision is overturned on appeal. So don't freak out if an attorney or representative says they're going to sue you, because they can't. An OWCP appeal is their only recourse...just like you.

The Code of Federal Regulations, which was recently updated in the Federal Register, shows Section 10.703 was amended to make it clear that OWCP can only approve representative's fees for services that have been performed before OWCP. This means you can only be charged for work on your OWCP case.

This section states; the Employees' Compensation Appeals Board , (the ECAB or the Board) must approve fees for services performed in from of the ECAB. This means that if you appeal to the ECAB, your attorney/representative fees must be approved by the ECAB not OWCP.

This section (10.703) of the Code of Federal Regulations has also been clarified that contingency fees will not be approved FOR ANY REASON. If the fee is disputed, OWCP/ECAB will consider the customary local charge for a representative with similar qualifications in considering what constitutes a reasonable fee. In other words, OWCP/ECAB will convert the fee into an hourly rate using the average rate of attorneys/representatives in your area. This applies to ALL disputed attorney/representative fees not just contingency fees.

Here's the link showing the amendments. Scroll down to 10.703: http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=24143&AgencyId=13

This information is also in OWCP's regulations. You can find OWCP's regulations on representative fees at http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/CA-810.pdf Scroll down to Chapter 4 and you'll find it at 4-1(d).

So again, if you've been charged a percentage of your compensation and/or schedule award by an attorney or representative and you think an hourly rate is more beneficial to you, don't be afraid to tell OWCP about it. As you can see from the regulations, this issue falls squarely on the attorney's and representative's shoulders, not the Claimant's.

Unfortunately, if it's been a long time since your agreement with the attorney/representative, you may not get anywhere, but it doesn't hurt to try it. If you were billed under a contingency agreement, that agreement was not valid. The amount of time that's gone by shouldn't matter...if it's wrong, it's wrong. If it's been a while, the worst they could say is no.

Saturday, July 30, 2011

Bad Diagnostic Films

Sometimes a Claimant gets a diagnostic study such as an MRI, CT Scan, X-Ray, etc...that differs significantly from previous tests or the diagnostic report doesn't revel what the physician expected it to revel or you had a test such as an MRI and that MRI showed abnormalities and the current MRI report shows 'normal'.

A bad diagnostic test report can be just as damaging to your OWCP claim as a bad physician's report and if you've received one, you should challenge the report.
If you've received a questionable radiological report, you can have your own independent second opinion performed on those results.

One of the companies that provides such second opinions is Radiia *Radiia has changed their name to Metis MD . To be clear, I have no affiliation with Radiia and am not connected with them in any way. I'm sure research would show there are other facilities that also provide this service. If anyone knows of good ones, let me know and I'll post them.

Radiia will provide you a comprehensive independent second opinion report on your films. Their physicians are all Board Certified with at least ten years experience. Their reports are detailed and explain where the information they provide comes from. In addition, if they do find something, Radiia will provide not only where the information came from, but pictures of the films with the abnormalities circled. I was impressed enough with the quality of their report, to recommend them here. With the pictures of the films included in the report and the abnormalities circled, it should be easy enough for even OWCP to comprehend.

If you need an independent reading of your films, I can recommend Radiia for this service. However, as I said, I'm sure there are other facilities that provide this service and you can certainly choose one of those. The bottom line is, you don't have to settle for an inaccurate reading of your diagnostic films.

Here's Metis MD's information for anyone who wants it...

Phone: 800-695-8191
FAX: 800-419-6976
Email: info@metismd.com

Mailing Address: 415 North LaSalle Street
Suite #502
Chicago, IL 60654

http://www.metismd.com/

Their charges are $200.00 for MRI, CT, Mammogram and $100.00 for X-Ray, Ultra Sound. Radiia also indicates they can have your independent second opinion delivered within 24-48 hours and they did meet that time frame.

Friday, July 22, 2011

Rant, Ahoy...

Today, I'm on a rant about the outrageous absurdity, the disturbing thinking of our friends at OWCP and a couple of their current decisions.

We have two parties involved, the Claims Examiner, (CE) and a "Reconsideration Specialist". Now, I would love nothing more than to name these two by name, but in the interest of keeping this blog online and protecting the Claimant's identity, let's call the CE Ms. Cheaterson and the reconsideration specialist, Ms. Liesalot.

It starts with Ms. Cheaterson the CE, as most OWCP tales do. Ms. Cheaterson denied the Claimant consequential injuries. Ms. Cheaterson's decision said she relied on the "comprehensive medical report" of the OWCP'S District Medical Advisor, (DMA). Seems reasonable, until you actually use the facts.

So let's first look at the DMA and the comprehensiveness of not one, but two medical reports. The two reports together, yes, I said combined, constitute three paragraphs. My first question to you is, what is wrong with this? The answer is; a "Comprehensive Medical Report" will absolutely contain more than three paragraphs even if it's your first day in OWCPland. So we can be pretty sure something's amiss based on the DMA's economy of words.

Next, we're looking for what the three anorexic paragraphs boil down to. What is the medical opinion? Here, it is this one sentence:
"At this time I do NOT feel that OWCP should expand the accepted conditions in this case."
Ms. Cheaterson then assigned weight of medical evidence to the DMA's reports and denied the consequential injuries. Yes folks, when the report is on the side of OWCP, weight of medical evidence can be placed on three paragraphs that boil down to their physician's 'feeling'. Show of hands; how many of you out there think this would fly if it was the Claimant's physician's 'feeling'?? Anyone?

But wait, there's more. The DMA stated in both reports that the Claimant had established that bulging discs were in fact work related. Now wouldn't you know, bulging discs were one of the consequential injuries the Claimant was asking for. Wow, what a coincidence. Break it down and the DMA says bulging discs are established yet he doesn't 'feel' any conditions should be accepted. So which is it? Are they consequential or not? Are they established or not? We don't know because the DMA didn't tell us...which they are required to do.

So, what should a Claimant do if this is also their situation? Well, let me ask you this, is a feeling now considered a medical opinion? No, it is not. First, what kind of feeling is it? The doctor doesn't provide any explanation of why he has this feeling or what feeling it was. How do we know he isn't just hungry? Maybe it's gas. We don't know because he didn't explain why he was feeling whatever it was he was feeling and what caused the feeling he was having.

Also, there is no medical rationale connected to this sort of statement. When a physician declares that medical conditions are not consequential, they must explain how the injuries could NOT be related to the original injuries. The doctor has to state what intervened to break the chain of causation. No physician can make a statement about a Claimant's medical conditions without explaining in detail how they arrived at that specific medical opinion and what evidence they based the opinion on.

Then of course there's the contradictions....the Claimant and her physicians indicate the Claimant has bulging discs related to her original accepted conditions. OWCP then sent the Claimant to a second opinion. OWCP's second opinion physician agreed that all of the Claimant's claimed conditions were not only consequential but indicated that each of the conditions was permanent. OWCP then added three of the consequential injuries, but ignored the rest. OWCP cannot use a medical report to accept some of the conditions and not all the conditions. They can't just cherry-pick what they want, especially when it's THEIR doctor saying it. Once they use a report to accept one condition if that report indicates other conditions are work-related, OWCP has to accept those conditions as well.

On the Claimant's side we've got the treating physician, one of OWCP's own secops and diagnostic tests. On OWCP's side we've got a physician with a feeling who states the Claimant established bulging discs but then goes on to say no conditions should be accepted. Ms. Cheaterson then assigns weight of medical evidence to the DMA, the single opinion that denies the consequential injuries...sound familar? Well, I'm getting sick of it. It does nothing but waste everyone's time and taxpayer money. They know they're wrong, but they just can't bring themselves to admit it.

If you read an OWCP medical report and can ask yourself; which is it? the medical opinion is contradictory. If you're thinking; hey, make up your mind...it's contradictory and an OWCP medical report cannot be contradictory. Your doctor can't do it and either can OWCP's doctors. What applies to you applies to them, even if they haven't figured that out yet.

A three paragraph report does not even cover the history of most claims. So if your OWCP medical report is short, that's an indication it's not proper. They can't say I reviewed the file. They have to say what they reviewed. They can't just review OWCP's doctor reports, they have to consider ALL the evidence, including any evidence they receive on the date of the decision.

As our saga continues, Ms. Cheaterson then issued the formal decision denying the consequential injuries. Shocking. Of course, the Claimant appealed the decision.

Enter Ms. Liesalot, the so called "Reconsideration Specialist". All I can say is, after reading Ms. Liesalot's decision, I can say for sure and for certain there is nothing special about her and she should relinquish her 'specialist' title. Her decision is a blatant violation of FECA policy.

First Ms. Liesalot says that bulging discs have been accepted by the Office. Then goes on to explain that bulging discs aren't going to be accepted. I know, right? Where do they get this stuff?

She then discounts the Claimant's argument against the DMA by suddenly promoting him to the District Medical Director. These are two very different jobs. She also declared the DMA's reports, "Qualified Medical Opinions" Of course, these errors are easily proven, but that requires another appeal which means another delay to the Claimant, which I'm pretty sure is the point.

Ms. Liesalot then states that the consequential injuries that are being requested are already accepted. Again, an easily proven error since there would have been no appeal if the consequential injuries had previously been accepted. Duh.

Ms. Liesalot's decision was so utterly pathetic, that of the four arguments made by the Claimant, she didn't actually address any of them. Really, if you could read it, it's just a bunch of stuff made up, without even one ECAB citing to back her up. If they can't cite an ECAB case to back them up, that's an indication your arguments are sound. If it wasn't so pathetic, it might be comical.

Sometimes, you get a really bad decision and there's not one thing you can do about that except appeal. Obviously, this Claimant isn't going to get anywhere in her District. The decisions speak for themselves in the lack of knowledge of the FECA Manuals, ECAB precedent and Larson's on Workers' Compensation Law. The Claimant now has an appeal on its way to the ECAB and I expect it will be kicked back in the Claimant's favor.

The behavior just disgusts me. It's all a game with people's lives hanging in the balance. It's not enough that your mental status has changed because your physical status has changed. No, they have to add the stress of bogus decisions that they know are wrong. Is it so awful for them to just adhere to the rules and regulations governing the system? Some appeals are not so cut and dry and sometimes you have to make a couple of runs at it before you get everything you need. But other times it's obvious there were errors, it's obvious the Claimant has proved their case beyond a shadow of a doubt. When that happens, they should at LEAST have to cowboy up and approve the Claimant's claim.

Sure, everyone is concerned with their own OWCP case, but think about how many of these decisions are being written every day, five days a week in 12 Districts. How many Claimant's are out there struggling with this system. All Claimant's are asking for is what they're entitled to by the written rules, but OWCP refuses to play fair. This is why no matter how beaten you feel, you must fight back and remember that there are others out there just like you. Feeling the same way you are. You can't let them get away with it, because that's exactly what they want.

Can anyone reading this explain how this system is still being called non-adversarial? It does make me wonder though...is the waste of time, effort and money to both Claimant's and the taxpayers due to ignorance or just plain obstinate? And when is someone going to pay attention to this behavior?

Sunday, July 10, 2011

Attorneys and Representatives

We're lucky, we're living in the information age. I can't imagine how hard it was to handle an OWCP claim without the Internet. This is interesting to me since I fought technology for so long, I didn't even have a computer when my OWCP saga started.

Maybe you find yourself in a position where you need or want help with your OWCP claim. There are several attorneys out there that do nothing but OWCP claims and you may or may not have heard their names. In an OWCP claim, you don't have to hire an attorney, you can hire anyone to represent you. In addition to attorneys, there are also representatives that handle OWCP claims. Representatives usually come about by starting with their own claims. Through time and effort, these Claimants become "experts" in OWCP. Somewhere out there now is a Claimant on their way to becoming another OWCP expert.

In the very beginning, since I knew absolutely nothing, I found myself in a position to need representation. I hired an attorney and paid the $5,000.00 retainer. I hired this particular attorney because a fellow employee was using him and he had successfully battled OWCP with his own claim and had been doing it ever since, more than twenty years.

It only took a few weeks for my retainer to be spent. One of the things my attorney did was file an appeal with the ECAB. Within just a few weeks a response came back that the appeal could not be filed because there had been no formal decision from OWCP. It was at that moment I began to question the abilities of my attorney. I had just learned the hard way my attorney didn't know the basic facts of OWCP procedure. Unfortunately, what I didn't know then was a lot.

It was then I caved in to technology and found the magic of the Internet. I Googled my attorney and what I found was that he had in fact been an attorney up until the California Bar Association suspended his license (several years earlier) for financial abuse against ten of his OWCP Claimants. He never got his attorney's license back, yet still called himself an attorney and last I saw, still advertises as an attorney.

I guess the moral of the story is, check with your State Bar Association and make sure your attorney has a valid license. Google your attorney and see what's there.

Just because an attorney or representative has been doing OWCP cases for years, decades even, it doesn't mean they're any good at it. Likewise, someone who's only been doing OWCP cases a few years might be great at it. For example, there are two attorneys that are pretty good at Schedule Award claims, but not great in other areas. There's an attorney who only wins 1-5% of the time, yet somehow gets a lot of Claimants to sign on with him. There are rumors of representatives who illegally charge on a contingency basis.

So how do you know if your attorney is any good at OWCP cases? That's an excellent question. The only way that I know of is the ECAB decision web sites (links to both are on the "LINKS" page). On the site by month and year, you can go to any month and year and by looking at all the decisions that month, you can see how many appeals the attorney or representative filed and what the win, lose or remand record is for the month. By going to the searchable ECAB site, you can type the attorney's name into the search bar and see what comes up.

There is a problem with this limited information. First, it doesn't have anything to do with the win/loss record on any other appeal such as a reconsideration, review of the written record or a hearing. We can only assume any prior appeal was lost, as most people consider the ECAB the last resort. Second, the attorney or representative may not have many or any appeals in front of the ECAB, so you may not find any record. A lack of ECAB appeals could indicate the representative has a better win record and doesn't need to constantly appeal to the ECAB.

Hiring an attorney or representative is an important decision. I suggest researching and talking to the person. Will they talk to you? Do they charge a fee for talking to you? Will they answer your questions? Do they know what they're talking about? I suggest having a few questions ready that you know the answer to. If the person can't answer those questions accurately, move on to someone who can.

If you find yourself in this position, these are the FECA rules governing attorney and representatives fees, which can be found in the FECA Manual part 2 at 2-1200...

Under FECA part 2 at 2-1200-2, A Federal employee may act as a representative only on behalf of an immediate family member or while acting as a Union representative. In both cases, no fee or gratuity can be charged.

Under FECA part 2 at 2-1200-4, A Claimant is solely responsible for the fees of their representative, however, fees must be approved by OWCP prior to the fees being paid. Collecting fees without OWCP approval is a misdemeanor under 18 U.S.C. 292. OWCP DOES NOT pay the fee, the Claimant is solely responsible for the payment of fees, but OWCP must approve the fees.

Fees with no relation to your claim will not be approved by OWCP.

Time spent in preparing the request for fees, writing letters, holding conferences, or any other activity connected with the preparation of the representatives bill may not be considered.

Fees for work in front of other areas, such as the ECAB must be approved by the ECAB and not the OWCP under 20 C.F.R. 501.11.

Mailing, copying, messenger services, travel costs and the like should not be included in your bill. These are services OWCP has determined to be "Administrative" costs between the representative and his/her client. However, secretarial services, paralegal, legal assistant and legal intern can be included in your bill.

Any retainer or pre-paid fees must be held in an escrow account by the representative and cannot be removed until OWCP approves the fees.

Your bill must include an itemized statement showing the representatives hourly rate, the number of hours worked, a description of the specific work performed and the total charge less administrative costs. A statement with the amount charged must be signed by the Claimant. This statement must also include an acknowledgement that the Claimant is aware that s/he has to pay the fee. If any of this information is missing, OWCP should return the bill to the representative advising them to submit a corrected bill.

OWCP does not recognize any contract or agreement between representatives and clients for payment of a fee for services on a contingency basis. In other words, a representative cannot collect a percentage of your compensation or your Schedule Award. Any contingency contract or agreement will not be considered. In Angelea M. Sanden the ECAB ruled that the representatives contingency fee arrangement was illegal. The ECAB determined the contingency contract null and void and the representative had to calculate the money owed on an hourly basis. Here's the link to the Sanden case http://www.dol.gov/ecab/decisions/2004/Sep/04-1632.htm

Since this is what I do for a living now, obviously I'm not saying don't hire someone if you need them. I'm saying make sure you make an informed decision on the subject because in OWCPland, whatever your representative says on your behalf is counted by OWCP as coming from the Claimant. So you want to make sure you see anything before it's submitted to OWCP to check it for accuracy. It's easy for a representative to get dates, places or events wrong. The Claimant knows their case better than anyone and has a vested interest in the outcome of OWCP's decisions. You might need help, but you have the right to know what's being said or done on your behalf.

Remember, your representative fees can be challenged. If the rules above are not being followed, you believe you're being overcharged or you don't agree with the fees, write to OWCP, quoting the FECA Manual and/or Angelea M. Sanden and challenge your fees. At some point OWCP will have to make a formal decision on the subject and you'll get appeal rights. If you're right, the fees can be reduced or eliminated by OWCP.

Saturday, July 9, 2011

Standard Operating Procedure, (SOP)

Today's topic is what has become standard operating procedure but in reality should be classified as 'scare tactics' commonly used in OWCPland by both OWCP and your Agency. Let's take them one at a time...

First, your Agency. When Claimant's are first thrown  into the OWCP system, they believe that their injuries will be properly attended to without having to fight tooth and nail for proper medical care and treatment. You were injured while working, why wouldn't you think it would be taken care of? Unfortunately, most Claimant's find out the hard way just how wrong they are about that. Your injuries should be properly attended to, but sadly, the system really doesn't work that way.

Many Claimant's speak to their Agency for advice with their OWCP claim. Most Agencies are required to help a Claimant with their claim. To be honest at the very least. Well, if you're reading this, you may have already figured out your Agency will lie to both OWCP and you. Or you're constantly being told, 'I don't know'. When it comes to a choice between believing you or believing your Agency, OWCP will most likely side with your Agency. So you want to counter anything mis-stated.

I've said it before and I'll say it again. Anyone reading this should also spread the word...your Agency will lie to you so verify EVERYTHING you're told by your Agency. Don't just blindly believe what you're told and if you're new and have been blindly following your Agency...stop now.

My experience is the more Agency lies or erroneous information you can prove, the better you can use it to your advantage. It's a credibility argument that you can make. You are honest...they are not. Depending on what/where they lie, there are laws you can cite.

Suggestion number one; Get it in writing. This applies to everything that involves your OWCP claim. Proof is the name of the game and believe me, you may be pleasantly surprised by what some people will put in writing that you can use later. If you have a telephone conversation, get the Who, What, When, Where, Why and How. Take notes and then type those notes up and send a copy to OWCP. Now your side of the story is in your file.

Telephone conversations are supposed to be put on a form called a CA-110. When you get copies of your file, you get copies of the CA-110's. Once you see them, you may notice that OWCP's version of your telephone conversations are quite different that what actually took place, so it's always good to get your side in your file.

Federal Agencies run on policy, procedure and regulations. So if your Agency tells you anything you must do or anything they cannot do, ask for it in writing with the corresponding policy, procedure or regulation. Then you can look it up yourself and see if what you're being told is true. Or you may find that policy, procedure or regulation doesn't apply to you or isn't accurate to the situation.

Second, your Claims Examiner, (CE)/OWCP; we could cover this topic for weeks, months even and not be done talking about it. The main thing I want to bring up here is intimidation tactics. Sometimes, your CE will threaten to send you to an OWCP second opinion physician. This is often used simply as a scare tactic. If your CE uses this tactic, simply don't respond to it. They're going to do what they're going to do and you have no control over that. It doesn't take long in the system to learn about OWCP's physicians. There is absolutely nothing a claimant can do if a CE schedules a second opinion except go to the appointment. So there's no use in being in a panic over it. The examination is not the important part, it is the report that's important and I've discussed before what to look for in an OWCP medical report.

Even if you don't do it yourself, there are people out there that know what to look for, how to challenge an OWCP medical report.

Another common scare tactic is to threaten to cut off your compensation. Again, make sure you get it in writing. If the CE won't put it in writing, there's a good chance it's an intimidation tactic. It's simply meant to scare you. It's much better for your Agency and OWCP to have you afraid. It makes it easier for them to control you.

Suggestion number two; Don't Show Fear or Emotion. Really, this should be a rule and it should be number one. Being injured and then thrown into this wacky system is extremely emotional. You're banged up, the future seems scary and unknown, and Bam, the crazy train stops in OWCPland and drops you off. Those running the system rely on that fear and emotion. OWCP actually refers to this system as non-adversarial. Personally, I don't think that word means what OWCP thinks it means. I don't know about you, but I find the system extremely adversarial.

Suggestion number three; Whatever you put in writing to OWCP read it over and remove anything emotional....Just stick to the facts. Same goes for telephone conversations. Scream bloody murder and curse all you want...curl up in the closet and cry like a little baby, AFTER you hang up the phone. AFTER you type up your correspondence to OWCP or your Agency.

If the CE will put their scare tactic in writing, did the CE use the proper regulation? For instance, CE's love to confuse Field Nurses and Vocational Rehabilitation Counselors. They send one Claimant after another letters threatening to suspend their compensation. They do this because under the Vocational Rehabilitation process, your compensation CAN be suspended for non-cooperation. The Field Nurse program is voluntary and OWCP CANNOT suspend your compensation for non-cooperation. It doesn't stop the CE from threatening you, but using the FECA Manual and cited regulation, you can prove you are right and OWCP is wrong and your benefits can't be suspended.

These are just two common tactics used. The bottom line is, for every move OWCP makes, there is a counter move for the Claimant. All is not lost. CE's and Agencies often don't seem to understand their own rules and regulations or purposely mis-quote or mis-cite them. Use that to your advantage. If you can get lies and inaccuracies in writing, consider yourself lucky. And remember, you don't have to live in fear, because there are counter moves and they might just be trying to scare you. Remember, it works to their advantage if you are afraid, if you don't know the 'rules'.

The sad fact is, no one is coming to the rescue of an injured Federal employee. You have to take responsibility for your own claim...which you can do. An educated Claimant is a powerful Claimant.

Wednesday, May 11, 2011

New OWCP Survey

The Department of Labor has published a new survey, go to the link below and Let Your Voice Be Heard.

Take the survey and let's start letting OWCP know what we think of them. The survey can be completed by both Claimant's and Providers. If your physician, physicial therapist, surgeon, diagnostic testing facility, or any other Provider has had trouble with OWCP, they can take the survey as well. Everyone  should be encouraged to complete the survey if they've had issues with OWCP.

http://www.dol.gov/owcp/OWCPSurveyLetter.pdf

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.

Saturday, April 30, 2011

The Mailbox Rule

The Mailbox Rule is another one sided rule used by OWCP. The Mailbox Rule is simply this:
"In absence of evidence to the contrary a letter properly addressed and mailed in the due course of business, such as in the course of the Office's daily activities, is presumed to have arrived at the mailing address in due course"
What this means for Claimant's is all OWCP has to do is show that there is a letter and that letter was properly addressed. OWCP does NOT have to prove the letter was actually mailed to you. If you cannot prove this is inaccurate, then as far as OWCP goes, you got the letter whether you actually got it or not.

That's how it works for OWCP, but Claimant's have to be able to prove they mailed their items. A Claimant can do this in two ways...
1) You can locate the document(s) in question in your OWCP file. This is all well and good unless OWCP conveniently removes the document(s) from your file. In this case, you have no proof the document(s) were actually mailed and received by OWCP. Where OWCP simply has to show there is a letter and that letter has your last known address on it, a Claimant has to prove the letter was actually mailed.

2) A Claimant can prove they actually mailed document(s) by sending everything that goes to OWCP either delivery confirmation or certified mail. This is the cheapest way to track your OWCP correspondence. Delivery confirmation is slightly cheaper than certified mail, but either one will do.

In addition to sending your OWCP correspondence via delivery confirmation or certified mail, you should also write the tracking number on the document(s) you're sending. This way the document is identified by a specific tracking number. When I write to OWCP, I type the delivery confirmation number in the 'footer' of each page.

You don't have to use a separate tracking number for every document. If you're sending several documents, you can send them under the same tracking number, just make sure that tracking number is on every page you're sending so the documents can be identified later.

If you don't write the number on the document(s), then OWCP can simply say we didn't receive those items. OWCP can say something was sent delivery confirmation or certified mail, but it wasn't the document you say it was. Unless the tracking number is written on the document(s) OWCP can simply deny, deny, deny.

Once you mail your items, keep an eye on the tracking number and when the item is received by OWCP, print out a receipt showing it was received. You can track your items through the postal services Track and Confirm website. I usually staple the original receipt onto the track and confirm receipt so that I can easily make a copy of both on one page if I need to. You can find Track and Confirm on the "Links" page.

You can pick up a stack of delivery confirmation or certified mail receipts at your post office along with Priority Mail envelopes. If you keep a stack around the house, then you'll always have them when you need to send OWCP any correspondence.

I cannot tell you how many times a tracking number with proof of receipt put OWCP back in its place and proved the documents were actually mailed and received by OWCP. I'm always able to prove that I did in fact send the document(s) and exactly when OWCP received document(s) because I don't send anything to OWCP without a tracking number on it.

You can find more information about the Mailbox Rule at 20 C.F.R. 10.127 and in the following ECAB decisions:

http://www.dol.gov/ecab/decisions/2008/May/08-0202P.htm
http://www.dol.gov/ecab/decisions/2003/March/02-0713.htm

I've put a link for the Code of Federal Regulations, (CFR) on the "Links" page.

Wednesday, April 20, 2011

I Feel A Rant Coming On

How many people out there reading this have noticed the exorbitant amount of money OWCP pays for its nurses, District Medical Advisors, (DMA), vocational rehabilitation counselors and physician's?

An OWCP field nurse will receive a minimum of $5,000.00 for their services. I've seen a nurse paid up to $20,000.00 for their so called services. This amount might be reasonable if the nurses actually did anything other than bill for services they do not or cannot render. A vocational rehabilitation counselor can spend an hour on your case and charge $1,000.00-$1,500.00 for their time and no one at OWCP questions the bill.

It seems to me that any claimant in vocational rehabilitation who is asked what job they want to do could respond that they want to be a vocational rehabilitation counselor. You don't have to do much and you get paid an extreme amount of money.

Recently, I saw a DMA report that consisted of one and a half pages and the DMA charged $225.00 for it. When OWCP went back for clarification, the same DMA charged an additional $225.00 for one paragraph of clarification. $450.00 for two pages. And as usual, the finished report was thrown out due to inaccuracies, inconsistencies and policy violations.

Then there's OWCP hired gun physicians. A second opinion physician can charge as much as $1,000.00 or more for a report and the Independent Medical Evaluation, (IME) physicians can charge $4,000.00 or more for their reports and receive it. Not only do they receive the full amount they charge, they get paid by "Prompt Pay" which means they get their money paid quicker than anyone else.

I'm working with a claimant right now who was sent to a second opinion and an IME. I expect both reports to be thrown out on appeal since neither is accurate or complete and neither report actually addresses the issues OWCP requested. As with any OWCP medical report, neither are up to OWCP's standards, yet OWCP has determined they carry the weight of medical evidence. One claimant, two reports with a cost of $4,900.00. And again, I expect that money will have been paid for nothing since the reports should be thrown out on appeal.

This particular IME boasts he has done 10,500 IME examinations for one company. He charged OWCP $4,250.00 for one report. If my math is right, that's $4,462,500.00 for writing medical reports that are easy to get thrown out. And remember, that's just for one company.

Think about how many medical reports are thrown out on appeal. How much money wasted for the cost of those reports only to determine later the report wasn't up to OWCP's standards. If we knew the actual figures, the amount of wasted money is in the multi-millions.

If you were a doctor, why wouldn't you exclusively write these types of reports? The money is better than a physician in private practice and you don't have to deal with those pesky patients. Of course the four million dollar price tag doesn't include the physician going to court as an expert witness or any of the reports written for other companies or the reports s/he may write for State workers' compensation, Social Security, etc...Factor in the 10 minutes to half an hour the physician spends doing his 'exam' and the profit margin to the physician really becomes clear.

Just for a minute imagine what would happen if a claimant's physician charged $650.00-$4,000.00 for one report. If it was a claimant's physician, I can almost guarantee OWCP would come after the physician for fraud, but they don't blink an eye if the physician is one of their hired guns. A claimant's physician can write a complete, thorough report and charge $200.00-$300.00 and not receive the full amount charged because OWCP determines the cost is too high. Yet OWCP's physicians seem to be able to charge any amount and receive that amount promptly and in full without any questions whatsoever.

The problem for claimant's is when a physician does these sort of reports as their exclusive way of making a living, they come to rely on the money and in order to continue on the gravy train, they must produce reports against claimants or risk OWCP dropping them in favor of a physician that will write the reports OWCP wants. The physician becomes biased. That's not my opinion, it's a fact that can be verified by searching the physicians through Employees Compensation Appeals Board, (ECAB). If you look, every physician that works regularly for OWCP consistently writes reports against claimants. In a lot of cases, the reports are contrary to all the medical evidence in the file and yet are accepted as factual by OWCP and given weight of medical evidence.

It's no wonder these people work exclusively for OWCP. Why wouldn't they? The money is way more than any amount you could make in the 'real' world. It's more than any other person in their field can make for doing the same job.

In light of the recent comments from OWCP's current Director about the cost of caring for claimant's, and how OWCP needs to cut benefits and services to claimant's because claimants receive too much, it seems the obvious choice for saving money is through OWCP's own medical personnel.

Before OWCP decides claimant's are receiving too many benefits at too high a cost, their own medical personnel should be put under the microscope and caps on their fees should be put in place. Not only would that save OWCP more money than cutting services for claimants, it just might eliminate physicians, nurses and vocational rehabilitation counselors that only work for the big bucks OWCP will pay them.

All of us have to start writing to OWCP with our complaints against the fees OWCP's medical personnel receive. We have to write complaints against the physicians, nurses, vocational rehabilitation counselors and DMA's who regularly work for OWCP and consistently go against claimant's no matter what the evidence shows. If we continue to sit back and do nothing then we will change nothing.

Tuesday, April 12, 2011

Types of Claims; What's the Difference?

Some claimant's get confused over what type of claim they have. Today, we're going to discuss the different types of claims (except death claims, which are obvious). The type of claim you have depends on what caused the injury.

No matter what type of claim you file, you have the burden of establishing the claimed condition is causally related to the factors of your Federal employment and you must show sufficient cause for OWCP to proceed with processing and adjudicating a claim. In order to do this, you must submit medical evidence including a medical narrative and any diagnostic tests. OWCP's responsibility is to aid you in the process by giving detailed instructions for developing the required evidence.

Traumatic Injury: FECA Manual part 2 at 2-0807 describes a traumatic injury as:
"A condition of the body caused by a specific event or incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by external force, including stress or strain, which is identifiable as to the time and place of occurrence and member or function of the body affected."
What this means is your injury occurs due to a specific event or series of events during one work shift. For instance a car accident, or you were hit by a car, something fell on you, a wrench hit you in the head, you lifted something and couldn't move or heard something pop, you sprained your ankle, you fell off a ladder or the wing of a plane, you broke a bone, a dog attacked you, you slipped on ice, etc...

For your claim to be a traumatic injury, you and your physician must be able to say; on this day, at approximately this time, this specific event occurred and you were injured because of it. If you can pinpoint the exact date and event or you require immediate medical care, your claim is traumatic.

A traumatic injury is filed using form CA-1.

Occupational Injury: The FECA Manual part 2 at 2-0800-2(d) describes an occupational injury as:
"A condition which is produced by continued or repeated exposure to elements of the work environment such as noxious substances or damaging noise levels over a period longer than one work day or shift"
This means your injury happens over time. For example, your job is repetitious which requires you to perform the same physical tasks everyday and over time a medical condition develops such as carpal tunnel syndrome, or a shoulder condition or a spinal condition or your job caused a pre-existing condition to worsen or become symptomatic.

An occupational injury is filed using form CA-2. You have three years from the date you first realized the injuries were work-related unless you were being exposed to something and you weren't aware you were being exposed, then the clock starts on the date of the last injurious exposure. Asbestos, toxic fumes, etc...fall under this category.

Recurrence of Disability (a work stoppage which occurs after an employee has returned to work after a period of disability: FECA Manual part 2 at 2-1500-3(b) describes a recurrence of disability as:
"(a) A spontaneous material change, demonstrated by objective findings, in the medical condition which resulted from a previous injury or occupational illness without an intervening injury or new exposure to factors causing the original illness;

(b) A return or increase of disability due to an accepted consequential injury; or

(c) Withdrawal of a light duty assignment made specifically to accommodate the claimant's condition die to the work-related injury. This withdrawal must have occurred for reasons other than misconduct or non-performance of job duties."
A recurrence injury claim is extremely difficult to prove because you need to show a spontaneous change in your condition. A spontaneous change means the condition developed without any apparent external influence, force or cause of treatment. This means if you were bending, pushing, pulling, reaching, lifting, etc.... and something happens, it is not a recurrence because the act of bending, pushing, pulling, reaching or lifting is an external force.

When you file a recurrence claim, you have to prove the spontaneous change. If you describe your injury by saying you were doing this or that and the injury occurred, this is NOT a recurrence because whatever you were doing is an external force.

Agencies often tell an employee to file for recurrence. Your Agency does not always accurately inform a claimant of which type of claim they have and what paperwork to file. To avoid complications later, do not listen to your agency without verifying the information is accurate.

A recurrence injury is filed using a CA-2a.

Consequential Injury: FECA Manual part 2 at 2-0805-6 describes a consequential injury as:
"This kind of injury occurs because of weakness or impairment caused by a work-related injury, and it may affect the same part of the body as the original injury or a different area altogether. For instance, a claimant with an accepted knee injury may fall at home because the weakened knee has buckled. This incident will constitute a consequential injury whether the affected part of the body is the knee or some other area, such as the back or arm. Or, a claimant with an injured eye may compensate for loss of functioning by overuse of the other eye, which may result in a consequential injury."
Consequential injuries happen because of a worsening or progression of your original conditions or because of your original injuries, another part of your body is affected. If your right knee was damaged and you develop a limp that causes hip problems, the hip conditions are consequential to the knee conditions. If Stenosis is accepted you may develop Myleopathy (spinal cord compression). The Myleopathy is consequential to the Stenosis. If you have an accepted shoulder condition and the other shoulder develops problems because of overuse, the new shoulder injuries are consequential to the original shoulder injuries.

Likewise, if you're sent to a Functional Capacity Evaluation, (FCE) and you're injured or your conditions worsen, those injuries are consequential. If you attend physical therapy for your accepted conditions and you're hurt or your conditions worsen during your physical therapy those injuries are consequential. If you're approved for surgery and any complications arise because of that surgery, those injuries are consequential. Any new injury or worsening of your original injuries because of any treatment you receive is a consequential injury.

The most common consequential injury is a psychological condition due to pain. When you're injured and in constant or chronic pain, or you can no longer do the things you used to do, it affects you psychologically. Both the chronic pain and the resulting psychological condition is consequential.

There is no specific form for consequential injuries. To request consequential injuries, send a letter with your medical narrative and request the consequential injuries be added to your files. You can also read the 04/03/2011 post titled "Consequential Injuries" for more information.

You will have to fight to get any additional conditions added to your claim. Just because your claim is denied, does not mean you should stop fighting to get your conditions accepted. With any denial of services or any claim, get a formal decision so you have appeal rights. If your CE does not provide a formal decision with appeal rights, send a letter to OWCP requesting the formal decision. If OWCP doesn't reply within 30 days, go up the "food chain" to the District Director.

If the District Director doesn't reply to your request send a letter to your Congress person requesting help in getting a formal decision.

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.

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.

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.

Friday, March 25, 2011

FECA Manuals

When claimant's begin the claims process with the OWCP, they tend to believe what they're told by their Claims Examiners, (CE's) and their Agency, and later find that the information is less than truthful or completely inaccurate, sometimes to the detriment of their claim. It's understandable that a claimant would believe their CE and/or Agency, why wouldn't you?, you were hurt on the job and these are the people assigned to help you, it seems reasonable they'd know what they're doing. The problem is, most claimant's have never been through the OWCP process, some don't even learn of OWCP's existence until their claim is filed and by the time they figure out the information they've been given is wrong, they have to play catch-up to fix it.

Unfortunately, no one is going to come to your rescue. You must be your own advocate in the OWCP process and in order to do that, you must know the rules. How can you know the rules, if you don't read the rule book? 

The FECA Manuals are the most important weapon an OWCP claimant has. These Manuals are the rule books of the game, the rules everyone, including your CE, your Agency and you must follow. A claimant cannot fight an OWCP decision, conclusion or opinion without the FECA Manuals. Flying blind or just winging it with OWCP is going to end up with denials from OWCP and/or financial and mental frustration while dealing with the injuries you've suffered. This is not a good place to be.

OWCP and your Agency are required to follow the FECA Manuals but the sad fact is, they often misinterpret or just plain ignore them. This works in a claimant's favor if the claimant takes the time to read the FECA Manuals. If you're familiar with the FECA Manuals, the errors of the CE's or Agency's 'wisdom' will stand out. If you receive a letter, decision or any documents from OWCP or your Agency and you see errors or something just doesn't sound right,  then it's a good bet you need to look in the FECA Manuals. You don't have to read the Manuals cover to cover or become an expert, but you should read the parts of the FECA Manuals that pertain to your situation.

When you're a claimant in the OWCP system, there are circumstances you have no control over; OWCP-directed medical examinations, vocational rehabilitation, wage earning capacity determinations, job offers, etc...and although you must cooperate during these situations, OWCP has a responsibility to follow its own procedures. If OWCP doesn't follow the FECA Manual, you can use that to your advantage to overturn whatever decision OWCP has made.

For example, if you've been placed in vocational rehabilitation, read FECA part 2 at 2-0813. If OWCP denies your claim because causal relationship wasn't established, read FECA part 2 at 2-0805. Whatever your situation, there's a corresponding FECA chapter that pertains to you.

Finding what you're looking for in the FECA Manuals isn't hard to do. At the beginning of each FECA Manual there's a List of Chapters that shows you exactly what the chapter covers and the section where you can find it. It's as easy as scrolling down the page to find what you're looking for. If you don't see what you're looking for immediately, or you want to search deeper, you can search by typing what you're looking for into the search bar at the top of the page.

Once you've confirmed OWCP or your Agency did not follow the rules of the FECA Manuals, you must bring it to OWCP's attention. It's not enough to tell OWCP there's an error, you must show them the errors. In most cases, OWCP won't just fix a mistake without a little push from you or in some cases, a shove. The best way to do this is to quote the incorrect information you received and then cite and quote the FECA Manual passage that proves the error.

The FECA Manuals are not just for OWCP to use against you. You can and should use them against OWCP and/or your Agency if they don't follow those same rules. OWCP counts on you not knowing what's contained in the FECA Manuals, it makes their job easier if you don't know they've made a bad decision, if you blindly follow whatever they tell you. Don't be afraid to throw the FECA Manuals back at OWCP or your Agency. You can't get in trouble for bringing errors to their attention. OWCP expects you to abide by the rules of the FECA Manuals, you should expect them to do the same.  
You can find parts one and two of the FECA Manuals on the "Links" page.

Thursday, March 17, 2011

Field Nurse

Today, I want to talk about what it means when a field nurse is assigned to your case. I've heard from a lot of claimant's how a field nurse seems to march in and take over as if they're the new boss. I've heard horror stories of Privacy Act violations and intimidation. The field nurse may tell you that you and your physician's have to do what they say and/or ask...or else...but this is not true. Unlike Vocational Rehabilitation where you must cooperate, your cooperation with the field nurse intervention program is voluntary.

Once the field nurse is assigned to you, you can track any payments made to the nurse from OWCP on the billing page of the ACS site if you want. You can find the ACS site on the "Links" page.

The field nurse will likely provide you with some sort of consent or release form. Most of these releases are so broad, they can entitle the nurse to your medical records from birth and are not specific only to your OWCP claims. I've seen some that even release financial information as well. I can't think of anyone who wants to sign something like that.

If  your field nurse supplies you with a release to sign and you find the release the nurse gives you too broad, you can type up a release of your own. Your release can limit the nurse to medical documents that pertain ONLY to your OWCP case. You can name specific physician's who have permission to release your records. You can put time limits on the release. The field nurse is assigned to your case for 120 days from the date of OWCP's referral. The CE may authorize an additional 30 days if need be. So your release should expire 150 days from the date of your referral. I've put an example of a release on the "How To" page. If your field nurse doesn't like it, too bad. You've provided a release for the records that pertain to your OWCP claim, which is all the nurse should be interested in.

I also suggest you type something up for your physician(s) that states no medical records are to be released without your express written permission. You should also explain to your physician(s) that s/he does not have to speak to the nurse or allow the nurse into the exam room without your permission. Doctor patient confidentiality applies when dealing with an OWCP field nurse unless you provide a signed release. If your doctor is the nervous type, explain that although the nurse may appear to be in charge, it is in fact the physician that still calls the shots in his own office.

I suggest you bring a tape recorder to any meeting with the field nurse. That way there's no confusion later as to who said what and you have documentation should the nurse's report state the events other than they actually happened. You will not automatically receive copies of your field nurse's reports, but you can get them by requesting copies of your file (see the "How To" page).

In a September 2010 case appealed to the ECAB; http://www.dol.gov/ecab/decisions/2010/Sep/10-0485.htm the Office reduced the claimant's compensation to zero for failure to cooperate with field nurse services. The Board stated the role of the Office filed nurse, as described in its procedures, is to attempt to "identify light or limited duty for the claimant" at the employing establishment, with the goal of reemlpoyment in the previous position.

The Office's procedures contemplate that such activities do not constitute vocational rehabilitation, but may result in a referral to a vocational rehabilitation specialist for a formal vocational rehabilitation plan.

The Board concluded that the claimant's failure to return a consent form did not impede efforts toward job placement, but delayed the field nurse's ability to communicate with claimant's physician. The Board reversed the Office's decision.

In the appeal of http://www.dol.gov/ecab/decisions/2006/Dec/06-0777.htm the Office advised the claimant that she had been assigned a case management nurse. The nurse was assigned to monitor claimant's medical status and progress, assist in coordinating the medical aspects of her care and facilitating the flow of information concerning her treatment.

The Board noted there was no referral for vocational rehabilitation, but a referral for nurse intervention to work with claimant on medical management to facilitate her return to work. The Board found that the field nurse's activities were limited to the role set forth in Office procedures, i.e., of attempting to return claimant to work and providing medical management services, a preliminary reemployment effort.

The Board determined this did not constitute non-cooperation with vocational rehabilitation and the Office did not meet its burden to suspend claimant's compensation. The Board reversed the Office's decision.

Another very similar case can be found at: http://www.dol.gov/ecab/decisions/2008/Jun/08-0528.htm

As with any other medical personnel assigned by OWCP, research the nurse. Does s/he have a valid certification? Are there any ECAB decisions regarding the nurse? Any red flags?

Information on field nurses can be found in the FECA Manuals at;

Part 2 at 2-600-8
Part 2 at 2-0811
Part 3 at 3-0201-3
Part 3 at 3-0201-7
Part 3 at 3-0202-1

You can find parts one and two of the FECA Manuals on the "Links" page.

Tuesday, March 15, 2011

You Are Not Alone

There's no doubt in my mind that the entire OWCP system is designed against claimant's and not for them. It's almost comical that they consider the system non-adversarial. I say almost because it's not funny to claimant's that have to live through OWCP's antics and games while injured and in pain.

It's not enough that the injured worker takes flack from fellow employees, their supervisors, their HR department, but they also have to take it from OWCP simply because they went to work and got injured. Sooner or later most claimant's find themselves wanting to give up just to be free of the system. This is exactly what OWCP wants you to do; give up your rights to the benefits you're entitled to.

All injured workers have to accept that their lives may no longer be the same, that they will forever face medical issues and pain due to their employment related injuries. This is not easy to accept and is made harder by being constantly bullied by the system that's supposed to help you. Although it may feel like it, you are not alone. There are tens of thousands, maybe hundreds of thousands of injured employees in exactly the same boat.

OWCP relies on your fear. At some point, every claimant feels it. The fear comes from the unknown. Not knowing how or what to do when it comes to your OWCP claim. Hopefully, this site will teach claimant's how to deal with their claims and how to navigate the system. For every action OWCP takes, there is a counter action a claimant can take.

I want to teach you to fight. I want you to realize that there are ways to get around the OWCP bullies and their decisions. I want you to realize that you are not alone and there are people out here who understand what you're going through and want to help you but you must stay in the fight. The best way I can put it is...Never give up...Never surrender.