Travel Status

There are some federal employees who are required to travel as part of their job. An employee who is required to travel as part of their job is considered to be in Travel Status.

When you are in travel status, you are covered continuously during the trip, except when a distinct departure on a personal errand is shown. This is true whether the travel is within or outside the United States.

The rules of travel status that apply are taken from Larson’s The Law of Workers’ Compensation.

The relevant passage states:

“Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.”

Injuries sustained while in a travel status would be considered work-related as long as you were considered to be in a work status. For instance, while in travel status you are considered working while driving, when boarding a plane, while flying, travel to and from the hotel, or going to eat, while in your hotel room, etc.

If physical therapy, (PT) is required of you, then approved activities would be covered if you were working out (engaging in PT). Whether or not you are covered while performing PT is dependent on the agency's authorized PT activities.

For instance, if the agency authorizes jogging/running as part of required PT and you are injured either on a treadmill or while jogging in the area, this would be work-related. But you have to be within the activities the agency has authorized.

Some agencies have specific activities that are considered required or suggested PT such as jogging, swimming, cycling, etc...If an agency specifies that jogging be done on a treadmill and you are hit by a car jogging on the street, you would not be covered under OWCP. If cycling is an approved form of PT but it’s specific to a stationary bike and you are out riding a bike and are injured, that would not be covered.

Some agencies authorize weight-lifting, but some do not. If weight-lifting is not authorized and you engaged in weight-lifting and were injured, that would not be covered. Or if you went water skiing or rock climbing as PT, but water skiing and/or rock climbing are not authorized PT activities, then you would not be covered.

So if you are engaging in required PT while in travel status but perform activities outside what the agency authorizes as PT, then you have deviated from the work-related activities and that is considered a personal decision to engage in recreational activity.

These activities would be considered a personal choice and not work-related and OWCP will deny the claim.

There are other instances where injuries that occurred would not be considered in performance of duty. These instances occur when you deviate from your work activities.

My suggestion would be that you be  aware of what the agency does and does not authorize as PT. This is because even if you are engaging in an authorized activity, the agency often fights the claim. Part of the problem is that the agency doesn’t understand what is and isn’t covered while in a travel status or if they do, they just don’t want claims to be accepted so they fight them.

For instance, if you went swimming in a hotel pool and swimming was part of authorized PT, if you were injured, that would be considered work-related. But if you went to the ocean to swim, that would be a deviation unless the agency has authorized swimming in the ocean.

If you are in travel status and went out to eat, that would be considered in the performance of duty. But if you went to eat and then went to meet a friend or went to a bar (a secondary location) or went to run a personal errand, then that would be a deviation and you would not be considered working or in performance of your duties.

If you went straight to/from the restaurant to the hotel, you're covered if injured. But if on the way back to the hotel you decided to go for a walk or sight-seeing and were injured, that would not be covered because you deviated from the route back to the hotel.

Also, you wouldn’t be covered under OWCP if you engaged in something you shouldn’t or something dangerous. For instance, if you were hailing a taxi to return to your hotel after dinner, but decided to stand in the middle of the street to do it and were hit by a car, this isn’t going to be considered work-related because you put yourself in danger by standing in traffic. Or if you were engaging in ‘horseplay’ (roughhousing or fooling around) and were injured, you would not be covered under OWCP.


An easy way to remember it is to think of it as a straight line. As long as you are going to or from without deviation, you're covered. When that straight line is broken, you're not covered.


When you deviate from the normal incidents of your trip and engage in activities, personal or otherwise, which are not reasonably incidental to the duties of your travel status contemplated by the employer, you cease to be under the protection of FECA and any injury occurring during that deviation is not compensable.

When an employee is in travel status and is injured, the first thing OWCP is supposed to do is determine if the employee deviated from their work activities. If it’s determined the employee did not deviate outside what is considered work activities, then like all OWCP claims, the medical evidence becomes crucial.

So when you give your statement of events, it should be specific about not deviating from what you were doing. In other words, you should detail that straight line. You should say that you didn’t deviate from your line of travel and that you were not on a personal errand.

Don't Sign That Medical Release!

When you're injured at work, most people have no idea what the process is and you end up trusting your agency. You're told what to do, what to sign, what doctor to go to and what to give the agency. Because it’s your first time and you don't know…you do what your agency tells you.

There's a lot agencies do wrong, but today I want to focus on additional forms your agency may tell you to sign...specifically a medical release.

Sometimes these forms are signed without reading them because you don’t know what’s required and your agency is telling you to sign specific forms to file your claim.

The ONLY forms you are required to sign and submit through your agency are the proper claim form (CA-1, CA2 or CA-2a) and a claim for wage-loss compensation (CA-7/CA-7a) if relevant. No other forms are required by OWCP to file a claim. 

When it comes to medical documentation, your agency is only entitled to your physical restrictions. This is done on either a CA-17 or an OWCP-5. Your agency is not entitled to medical reports, medical records, test results or any other personal medical documents.

You are not required or obligated to sign any other forms your agency provides. You are not required to submit any information to your agency other than what is contained on your claim form. OWCP will notify you if they require further information on your claim. 

Your responsibility for documentation is to OWCP not your agency. Your agency makes NO decisions on your OWCP claim.

Some agencies have developed their own medical release and tell an injured employee they have to sign it when they file their OWCP claim. The agency makes it appear that this is part of the OWCP claim process. 

These extra forms are not required by OWCP in order to file your claim. These forms are generated by and for the sole benefit of your agency.

Let me be clear, your agency does not have the right to your medical documents in an OWCP claim. OWCP is the sole holder of the medical information and medical records in any OWCP claim. Your obligation is to submit medical information and any other relevant information to OWCP...not to your agency.

If your agency requires information about your OWCP claim, they should be told to contact OWCP. OWCP will determine if your agency is legally entitled to the information.

The agency-generated medical releases I've seen make it clear the agency will use any medical documentation they receive AGAINST you if they choose to. By signing a medical release, you are agreeing to allow the agency to use your medical information against you if the opportunity arises. 

So if you have a pre-existing condition that is aggravated by work, the medical release allows the agency to obtain records that cover the pre-existing condition. With a signed medical release, your agency doesn't just have the right to collect work-related medical documents, they can collect your past medical records as well.

Most medical reports do not include information that ONLY pertains to your OWCP claim. Often medical reports or notes include other information that has nothing whatsoever to do with an OWCP claim. Things like medications you take, family history, past medical or surgical history, etc...By signing a medical release, the agency can receive medical information that has nothing to do with your OWCP claim. 

In my opinion, these medical releases are extremely broad. For instance, there is one currently being used by a Law Enforcement agency that states that the agency can obtain "any medical records or other information that is paper, oral or electronic." To me that says the agency can receive any medical record they want, past, present or future. 

Your agency cannot force or bully you to sign these forms and the agencies know they are not entitled to your medical records...which is why they require your signature allowing the agency access.

I would wager if you read these agency medical releases, you'll see the word:

VOLUNTARY

My advice is DO NOT sign any form that is not required by OWCP and know you have no obligation to provide your agency with your personal medical information if you file an OWCP claim. 

If you’ve signed one of these releases, you can rescind it.

• Ask your agency to give it back.
• If that doesn’t work, write a letter to the agency and tell them you rescind any medical release you signed. 
• If you have to, notify your physicians and other providers you’re rescinding any medical release the agency has. 

Field Nurse-Is Yours Legit?

As if there wasn’t enough to contend with, a new issue for claimants has come to my attention and it's getting more widespread. It is important that this information gets to ANY claimant who finds themselves with a nurse on their claim.

Agencies are assigning nurses to OWCP claims and in some cases, these nurses are misrepresenting to a claimant and/or their providers that they were assigned by OWCP or that they are contracted by OWCP.

In some cases, the agency nurses are misrepresenting that even though employed by the agency, they have the right to access your medical records and get involved with your providers because you were injured at work.

THIS IS NOT TRUE

In some cases, the agency and/or its nurses are preventing an injured worker from seeing a qualified physician by recommending a physician or telling the injured worker they have to see a particular physician. You do NOT have to have an agency-recommended physician as your treating physician.

In some cases, the agency and/or their nurses are directing claimants away from certain physicians, saying the physician is under investigation when they are not. This is currently most widespread in Arizona.

I’ve said it before and I’ll say it again, DO NOT believe your agency without proof what they’re saying is true. It’s hard enough to find a physician that will take an OWCP patient, now the agencies are trying to eliminate physicians, especially the good ones, that do accept OWCP claimants by telling lies about the physicians to scare claimants away.

For injured Border Patrol employees, there is at least one agency nurse in Arizona that is currently not licensed in the state of Arizona and is inappropriately inserting herself into claims as if she has a legitimate right.

In some cases, the agency and/or their nurses are inappropriately obtaining your medical records from your medical providers. When you’re injured, your agency does not receive or manage your medical records…OWCP does.

In some cases, the agency and/or their nurses are contacting your providers in person or by telephone. The agency and/or their nurse CANNOT contact your medical providers in person or by telephone.

However, your agency can contact your providers in writing. If any agency is contacting a provider, it MUST be in writing and a copy of the letter must be provided to both you and OWCP at the same time it’s sent to your provider. The agency can ask your provider about work limitations and possible job assignments.

If the agency writes your provider and the provider is going to respond, they should respond to OWCP. The doctor has no obligation to respond to the agency. Your agency is not involved in the decisions of your claim. Your agency doesn't review or weigh medical evidence. Your agency does not manage any part of your claim. Your obligation is to OWCP not your agency.

Your obligation to your agency is to notify them when you have been released to work and to provide any physical restrictions through a completed CA-17. 

If the agency needs information, they can contact OWCP and if they are legally entitled to the information, OWCP will give it to them. 

If your agency contacts you for medical reports, you should send the reports to OWCP and NOT the agency, but you can and should provide the agency a current CA-17.

The agencies and/or their nurses are inserting themselves into claims and asking providers for information such as billing codes. Legitimate OWCP Field Nurses don’t need to ask for billing codes. Since all your bills go through OWCP, they can easily find out what’s being billed. They don’t need ask your providers for billing codes.

Your agency and/or their nurses CANNOT attend medical appointments, CANNOT participate in your treatment, CANNOT make treatment recommendations, CANNOT schedule appointments and CANNOT discuss your claim or your injuries with your medical providers.

Because of these new agency tactics, ANY nurse assigned to your claim should be properly identified as an OWCP Field Nurse. 

When OWCP assigns a Field Nurse to your claim, you will be notified in writing. If you did not receive a letter from OWCP assigning a Field Nurse to your claim, there is a chance the nurse contacting you is not assigned by OWCP but is an agency nurse.

ALL claimants should ask their Field Nurse for the letter OWCP sent them and identification to confirm they are in fact the OWCP Field Nurse assigned and not an imposter sent by the agency to wrongfully obtain your medical information and documents.

Once you know the nurse's name, you should also confirm the nurse has a current and valid license in your state.

If an agency nurse inserts themselves into your claim, I suggest you contact OWCP in writing and let them know the agency is acting outside its bounds of the Act.  A copy should also be sent to your agency and the agency should be told to remove their nurse from your claim immediately. That the nurse is not to contact you or any of your providers again. And most important, your providers need to be notified in writing that the agency nurse has no legal right to any information involving your claim.

If an agency nurse is or has been assigned to your case and improperly obtained medical information, you can also file a complaint with your state’s nursing board for improperly inserting themselves into your claim and/or directing the course of medical treatment, possible Privacy Act and/or HIPAA violations and violating 20 CFR §10.506. You can also talk to your union about filing a grievance.

You do NOT have to interact in any way with an agency nurse or an OWCP Field Nurse for that matter. 

It is not in your best interest to allow your agency access to your medical records or your providers. They are not entitled to the information and if the agency requires information regarding your claim, they should be told to contact OWCP. 

A CA-17 indicating your physical restrictions is all the medical documentation your agency should require. If they need anything else, the agency should be told to contact OWCP. 

Your agency has NO authority to insert themselves into your claim. If the agency requires information about your claim, they should be told to contact OWCP. If the agency is legally entitled to the information, OWCP will provide it to the agency.

If I haven't said it enough: The agency should contact OWCP if they need information about your claim. 

Also something to remember, Field Nurses are Voluntary. Even if you’re assigned a Field Nurse by OWCP, you do not have to allow them access to you, your home, your providers or your medical records.

Claimants unfortunately have to protect themselves and the best way to do that is by knowing your rights. You are NOT required to cooperate with an agency nurse in any way, shape or form and if one has inserted themselves into your claim, you should immediately put a stop to it.

owcpslayer@gmail.com

Lenin "Lenny" Perez and AmeriMed Diagnostic Services-Update

See original article at: 
http://theowcpclassroom.blogspot.com/2015/09/lenin-lenny-perez.html 


03/31/2016 Lenin "Lenny" Perez whose company claimed they were advocates for injured federal employees pleaded guilty to conspiracy and receiving illegal remuneration (kickbacks), charges which each carry up to five years in federal prison. 

The amount of the kickbacks exceeded $1,000,000.00 with approximately $250,000.00 paid to his daughter.

Mr. Perez' daughter, Liane Perez-Rodriguez pleaded guilty to making a false statement and faces up to five years in federal prison. By pleading guilty, Ms. Perez-Rodriguez admitted lying to investigators.

Ms. Perez-Rodriguez had a "no-show" job at AmeriMed Diagnostic Services in Florida which according to documents, was created to funnel AmeriMed clinic money to her father, Mr. Perez. 

Ironically, Ms. Perez-Rodriguez's real job was as a legal secretary in the Public Defender's office. 

Lois Luis who helped run AmeriMed also pleaded guilty to conspiracy and receiving illegal remuneration (kickbacks) and also faces up to five years in federal prison for each charge. 

Mary K. Manso, chief executive officer at AmeriMed pleaded guilty to obstructing a health care investigation and also faces up to five years in federal prison. According to her plea agreement, Ms. Manso lied to federal investigators about kickbacks at AmeriMed and helped AmeriMed launder $2,500,000.00 obtained through fraudulent billing practices. 

Department of Justice news release:https://www.justice.gov/usao-mdfl/pr/federal-workers-compensation-kickback-conspirators-plead-guilty-0

10/18/2016: Mr. Perez died at the Pinellas County jail while awaiting sentencing. 




owcpslayer@gmail.com

The CA-20 Trap

When you first file an OWCP claim a lot of times your employer will give you a CA-20 (Attending Physician’s Report) form and tell you to have your doctor complete the form.

Sometimes it’s not just the employer but OWCP might also tell you to have a CA-20 completed and even the FECA Manual says a CA-20 can be used as a medical report. Everyone makes it seem as if this is what you need from your doctor to get your claim accepted…but it’s not.

The CA-20 is an official OWCP form, but it’s a trap and not actually considered a medical report that can or will get your claim accepted. While everyone might tell you that it’s all you need from your physician, it isn’t.

This is because the CA-20 does not constitute a rationalized medical opinion on causal relationship; simply checking the box that indicates the injuries are work-related and writing a brief description isn’t enough and can actually cause the claim to be denied. If you submit a CA-20 you can expect OWCP to either ask for more information or use the CA-20 to deny your claim.

Once your claim is accepted you can use a CA-20 in between yearly medical narratives but a CA-20 will not be considered rationalized medical evidence and will never be considered a medical report that will get your claim accepted.

In order to get your claim accepted, your doctor must write a complete medical narrative. This is the only medical evidence that will get the claim accepted. Until your claim is accepted, avoid the frustration and skip the CA-20 and have your doctor write a complete medical narrative as required by OWCP.

For more information on medical narratives see these articles:

http://theowcpclassroom.blogspot.com/2011/03/narrative-reports-your-physician.html

http://theowcpclassroom.blogspot.com/2011/07/more-on-medical-narratives.html

http://theowcpclassroom.blogspot.com/2015/03/painin-your-report.html

owcpslayer@gmail.com

OWCP Attorney-The Best Choice?

The ECAB decisions for January 2016 show that 33 appeals were filed through attorneys. Of these 33 appeals, 26 of them were affirmed, meaning the claimant lost. 26 out of 33 attorney filed appeals lost, the other seven were remanded back to OWCP. None of them were reversed. One attorney had eight appeals decided in January and lost all eight.

I have a problem with this. Yes, it’s true that there are some issues that are difficult to get accepted. I’m not talking about the difficult, complicated issues. I’m talking about basic issues of getting a claim or disability accepted.

If you are in the business of helping OWCP claimants with their claims, there are things you know or should know. If you don’t know the basics about OWCP, you have no business taking on an OWCP claim. More importantly, in my opinion you have no business taking a claimant’s money.

The most basic of things with OWCP is that ALL claims hinge on medical evidence. We all know this. Claimants learn this pretty quickly so attorneys and non-attorney representatives who do OWCP claims for a living should know it better.

Whenever a claimant comes to me for help in getting a claim accepted, one of the first things I do is look at the medical evidence. If the medical evidence is lacking, there’s no point in charging the claimant to appeal a decision until the medical evidence is up to OWCP’s standards and if you’re helping claimants for a living, you should be able to easily tell whether or not the medical evidence is sufficient. If the medical evidence isn’t sufficient, you shouldn’t be taking the claimant’s money to appeal when you know they’re going to be denied again for insufficient medical evidence.

We all know OWCP doesn’t play fair. Even when the medical evidence is sufficient, OWCP likes to deny a claim. But it seems to me that the attorneys aren’t playing fair either. In all the cases at the ECAB level that were denied based on a lack of medical evidence, how many previous appeals were done? How much did it cost the claimant to get to the ECAB level only to lose again on a lack of proper medical evidence?

The ECAB is the top of the OWCP food chain. A claimant shouldn't go to the ECAB unless or until all of the evidence to overturn the decision has been submitted. So why go to the ECAB if the claimant is still missing the evidence to overturn the decision?

One case in particular is: 

http://www.dol.gov/ecab/decisions/2016/Jan/15-1120.htm 

In this case, in addition to lacking and contradictory medical evidence, nurse’s notes and a physician's assistant reports were submitted. A nurse and a physician’s assistant are not considered physicians under the Act so this does not constitute medical evidence and it’s confusing to me why these reports would be submitted in support of the claim when this isn’t even considered medical evidence by OWCP.

Twenty six claimants who had an attorney lost their ECAB appeals in January. It’s true that I don’t know the details of these cases, but the numbers don’t lie.

It’s no secret I’m not a fan of the OWCP attorneys. I personally think a lot of non-attorney representatives and advocates do a better job and most charge less and I'm not saying all the attorneys that handle OWCP are bad at their job.

Five appeals were decided in January where the claimant had a non-attorney representative. Two of those were reversed, meaning a full-blown win for the claimant. The high-priced attorneys had no reversals out of 33 appeals that were submitted, but the non-attorney representatives had two out of the five appeals they submitted.

Don’t get me wrong, I have no problem with anyone making a living. But if you’re charging a claimant, the very least you should be able to do is recognize the medical evidence is insufficient BEFORE you file an appeal and most especially before you get to the ECAB level.

An attorney or non-attorney representative is supposed to help the claimant. Whatever the issue is, the job is to get the issue resolved so that the claimant gets the benefits they’re entitled to. All attorney and non-attorney representatives charge for their services. A claimant is paying for the expertise and knowledge. So at the very least, shouldn’t an attorney or non-attorney representative tell a claimant where their evidence is lacking before charging them for an appeal or multiple appeals they know are going to lose?

Most people hire an attorney under the belief the attorney can get things done. They charge a lot of money for their knowledge and expertise in their field of practice. But more and more I'm noticing that when it comes to OWCP, having an attorney doesn't necessarily increase your chances of winning. 26 people learned that the hard way in January. 

owcpslayer@gmail.com