Schedule Awards-Revisions to FECA Manual

There have been some new revisions to the FECA Manual part two at 2-0808 that may have a positive result for schedule awards.

The first change has to do with the District Medical Adviser, (DMA). In the past, when OWCP sent you to a second opinion about your schedule award and the DMA did not agree with the second opinion this created a conflict in medical opinion that resulted in being sent to a referee physician.

The new change indicates that the DMA cannot create a conflict in medical opinion with a second opinion physician because both the DMA and the second opinion work for OWCP. A conflict in medical opinion occurs when a doctor on your side disagrees with a doctor on OWCP's side. Since both the DMA and the second opinion are on OWCP's side, there cannot be a conflict.

Instead, the DMA must provide a medical report with medical rationale stating why they don't agree with the second opinion and the CE is to ask for a clarification report from the second opinion if the DMA does not agree with the impairment rating.

After receiving the clarification from the second opinion, the Claims Examiner, (CE) must then weigh the medical evidence to see if there is a conflict in medical opinion between your doctor's rating and one of OWCP's physicians. There can no longer be a conflict in medical opinion between two of OWCP's doctors.

The next change concerns the referee physician. In the past, OWCP would send the referee report to the DMA for review. The new change indicates that if the referee's report resolves the conflict and provides a thorough explanation of the impairment and cites the proper tables and charts, then the referee opinion is determined to be accurate and review by the DMA is no longer necessary.

The CE may send the referee report to the DMA but this is no longer automatic. Instead, the CE only has the DMA review a referee opinion if there is an issue with the referee's report.

Also, if there is an issue with the referee report, the CE should ask for clarification from the referee and not send it to the DMA to clarify. Only the doctor who wrote the report can clarify their own opinion.

The last change is a big one for some claimants. In the past, OWCP only allowed ratings only for accepted conditions even though this is not how the law is written.

The new change indicates that OWCP MUST follow the law and impairment ratings should include both work-related and non-work-related conditions to the same covered body part (arm, leg, etc).

For instance let's say that OWCP has accepted a specific condition in your shoulder and OWCP approved surgery on the shoulder but that same shoulder has pre-existing arthritis that is not accepted.

In the past OWCP would only accept ratings that included the impairment due to the accepted conditions and not the pre-existing arthritis. Now OWCP has to accept the impairment rating that includes the pre-existing arthritis even though it isn't accepted by OWCP.

Or say you have a left knee condition that is not work-related but you also have an accepted left ankle condition and both of these conditions affect your left leg and cause an impairment. OWCP must accept the impairment to the left knee which is not accepted as well as the left ankle which is accepted.

Or say that OWCP did not accept all the conditions to a body part when the claim was accepted. The conditions OWCP did not accept must now be included in the impairment rating if they result in a loss of use.

In other words, OWCP has to accept the Total loss of the covered body part at the time of the rating and OWCP can no longer 'portion' out your rating, they must accept and pay for a rating that includes ALL conditions that affect the covered body part whether the conditions are accepted or not.

This could result in higher impairment ratings for people who have conditions to the same body part that are not accepted by OWCP or that pre-existed the work-related injuries.

The FECA Manual part two at 2-0808-5(d) has been changed to read:

"Rated impairment should reflect the total loss as evaluated for the scheduled member (i.e. arm, leg, etc.) at the time of the rating examination. See Raymond E. Gwynn, 35 ECAB 247, 253 (1983). There are no provisions for apportionment under the FECA. As such, schedule awards include permanent impairment resulting from conditions accepted by the OWCP as job-related as well as and any non-industrial permanent impairment present in the same scheduled member at the time of the rating examination.

As long as the work-related injury has affected any residual usefulness, in whole or in part, of a scheduled member, a schedule award may be appropriate. Similarly, an increase in schedule award may be appropriate as long as a material change in the work-related injury is at least in part contributory to an increase in impairment of the scheduled member.

For example, if an aggravation of left hip osteoarthritis is accepted as work-related but the claimant also suffers from non-industrial left knee osteoarthritis, both of which have resulted in permanent impairment, an  assessment of impairment should reflect the total loss of the left leg, to include both the industrial and non- industrial injuries."

Hopefully this will force OWCP to follow regulations. 

These changes should mean a faster turnaround time for schedule awards because less time is wasted on the DMA and there cannot be a conflict in medical opinion between the DMA and one of OWCP's physicians. 

It should also result in higher impairment ratings for some claimants because OWCP has to accept impairment ratings that include all conditions that impair the covered body part.

Link to FECA Manual: https://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-PT2/group2.htm#20808