The following is a general discussion about the processing of federal compensation claims and some of the legal issues OWCP claimants face. Since it is not intended to be inclusive, not every situation or possibility can be covered. This discussion is not legal advice on any specific claim. Each claim proceeds according to its particular set of facts.
most prevalent method for a claims examiner to deny a claim is by not
asking the right questions. We ask the right questions. Per the Federal
Employees Compensation Act, the system is supposed to be self-executing
so that you do not need an attorney, however, this is not the way it works.
Federal Compensation Claims and Appeals
Unlike other disability programs, such as social security, there is no set sequential way to contest adverse actions by an OWCP claims examiner. Decisions list appeal options, and the claimant must somehow pick the best appeal route for his claim.
Claims examiners are federal workers serving federal workers. The federal regulation 20 C.F.R. § 10.0 explicitly states that proceedings under FECA are non-adversarial in nature. However, the adjudication of claims often seems adversarial. OWCP does not view compensation as a retirement program and looks to returning a claimant to work. As in baseball, OWCP’s game is a game of outs. At every step of a claim, the claimant faces threats to his eligibility for benefits.
To contest a denied claim, the claimant or his representative must decide on one of three appeal options:
The facts, merits, and posture of the claim determine the proper way to appeal. Decisions contain an explanation of appeal rights and an Appeal Request Form.
Mail requests for hearing by certified mail. Requests must be postmarked within 30 days of the decision.
An appeal to ECAB must reach the board by the ninetieth day, although reasons for being late will be considered.
Finally, count the date of any decision or notice from OWCP as day one. For example, in requesting reconsideration of a decision dated November 4, 2006, one would need to postmark the application for reconsideration by November 3, 2007.
The claimant's employer may not participate in the hearing. However, both the claimant and the employer are provided with a transcript of the hearing, and the employer may comment on the transcript in writing.
In his decision the hearing representative often remands the claim back to the claims examiner with an order to obtain additional information, usually medical opinion, to decide the issues. (See Second-Opinion/Referee Evaluations below.) Sometimes, he will simply rule in the claimant’s favor.
Or he may agree with the claims examiner and deny the claim again. His decision will state a new set of appeal rights.
OWCP sends the claimant's employer a copy of the application for reconsideration, and the employer can comment on the appeal. Increasingly, supervisory or senior claims examiners are ordering second-opinion or referee medical examinations before deciding on the reconsiderations. (See Second-Opinion/Referee Evaluations below.)
Once on wage-loss compensation and/or medical benefits, a claimant should heed every written notice from OWCP and respond to requests for information. A claimant needs to attend OWCP-ordered medical examinations and cooperate with nurses and vocational experts assigned to his case.
During the course of receiving compensation, an injured worker may encounter alarming situations, including:
of Proposed Reduction of Compensation
AN ATTORNEY CAN DO
of Proposed Termination
At any rate, a claimant should see, on a somewhat regular basis, the doctor who treats his work-related condition. That way, the client’s own doctor is at the ready to weigh in on OWCP’s opinion on medical improvement.
In a notice of proposed termination, the claims examiner gives the claimant 30 days to explain why his compensation should not be terminated. OWCP will give no extensions of time beyond the 30 days.
AN ATTORNEY CAN DO
An attorney can write the treating physician and ask for a medical report that sets out the doctor’s opinion thoroughly and with wording convincing to the claims examiner. Then, the attorney can write a persuasive response that ends OWCP's idea of terminating compensation. In that case, the claims examiner will not go forward and issue a notice of termination.
A response used to cause the claims examiner routinely to pause and not automatically issue a notice of termination at the end of 30 days. Unfortunately, that is no longer true: a notice of termination often quickly follows.
That is not to say a response has no value. It can stop the termination or, if the claimant's response raises enough doubt, the claims examiner will seek a second-opinion report or a referee report. (See Second-Opinion/Referee Evaluations below.) While OWCP acquires this additional medical documentation, the claimant's compensation continues.
The situation starts with a job offer from the injured worker’s employer, usually some light-duty position. If the claims examiner finds the job offer suitable, he sends a notice to the claimant giving the claimant 30 days to accept the job offer or explain in writing why he thinks the job is not suitable considering his medical condition. If the claimant responds to the notice by arguing the job is not suitable but OWCP disagrees with his argument, OWCP will give her another 15 days to accept the job or forever be disqualified from wage-loss compensation for the particular injury.
AN ATTORNEY CAN DO
A claimant wants to stay away from a job that just isn’t going to work out because of his disability. When OWCP sends its notices about the suitability of a job, an attorney must determine if medical documentation exists to establish that the job is beyond the claimant’s physical or mental limitations, as indicated by the claimant’s treating physician. An attorney must review the job offer: does it clearly state the job’s tasks and the amount of exertion or lifting needed in a work day? Simply, is the job offer in good faith?
If the job offer is deemed suitable and the claimant can’t show that his doctor prohibits him from doing the described work tasks, an attorney may have to counsel the claimant to take the job to avoid the disqualification. A claimant may quit a job found suitable by OWCP only with strong written medical justification from her doctor and with OWCP’s okay. Otherwise, Quitting that job may result in permanent disqualification from wage-loss compensation.
The claims examiner prepares two documents. One is the Statement of Accepted Facts (SOAF); the other is a list of questions to the doctor. Both are sent to the second-opinion doctor before he conducts his evaluation of the claimant.
If a conflict exists between the opinions of the claimant’s treating physician and the second-opinion doctor, then OWCP must send the claimant out for a referee examination. The claims examiner also provides the referee physician with questions and a SOAF.
AN ATTORNEY CAN DO
If the details of how the injury occurred are wrong, already the doctor, who is a stranger to the claimant he is examining, may be headed in the wrong direction. A claims examiner may not ask a leading question, which is a question in which the asker is suggesting the answer. And a claims examiner may not ask a question that gives the doctor an opportunity to exercise his own prejudices.
by Law Offices of Capp Taylor. All rights reserved.