OWCP Lawyer's Blog

OPM Disability Retirement

2012-03-01T12:08:00.001-08:00

I am frequently asked how does OPM figure my disability retirement pension payment. For a FERS disability this is a fairly straightforward matter. During the first 12 months, you are paid 60 percent of your high-3, minus 100 percent of any Social Security disability benefit to which you are entitled. After the first 12 months, you receive 40 percent of your high-3. minus 60 percent of any Social Security disability benefit. Keep in mind that Social Security disability is frequently approved after OPM has already commenced paying you. In that circumstance, when you receive a retroactive payment from Social Security, you need to hold on to that money because OPM is going to come back and recalculate your pension payment from the date your Social Security started and declare an overpayment.

Social Security Disability and OWCP

2012-02-23T11:11:00.000-08:00

If you become eligible for SSDI benefits while drawing FECA benefits from OWCP, whether for wage loss or a schedule award, there is frequently an offset that will reduce your SSDI benefit. SSA has published documents that explain how the offset is calculated. Keep in mind that attorney fees paid in connection with your receipt of FECA workers' compensation payments from OWCP should be reported to SSA, as this will be used to reduce your offset amount.

http://www.socialsecurity.gov/pubs/10018.html

Submit Your OWCP Forms Online

2012-01-19T12:17:00.000-08:00

OWCP has gone live with a new function that allows for web submission of forms and documents. You can submit a new claim form to create your case without going through your agency if you follow the instructions to first file the OSHA form. CA-7 and CA-7a forms can be submitted as well. There is a separate function to upload documents. This is pretty amazing, I wonder if it really works. I submitted a document in one of my cases today to see what happens. Here is a link: https://www.ecomp.dol.gov/#/

Do I need a lawyer to represent me with my OWCP claim for FECA benefits?

2012-01-04T13:30:00.000-08:00

This is a question that I get asked quite often. OWCP sends claimants form letters telling them that they do not need a lawyer to represent them. When asked this question, I try to explain that after almost 20 years, there is a lot that someone like me can bring to the table. While speaking with a prospective client the other day I ran across a situation that answers this question pretty conclusively. Unfortunately, Ms. X's OWCP claim has recently been terminated. The termination was premised upon the report from a physician, Menachem Meller, MD, who the Employees Compensation Appeals Board indicated in a July 26, 2011 decision should not perform referee examinations. Based upon that decision, OWCP stopped sending my clients to that doctor, but this injured worker was sent a notice in September 2011 to attend an examination with this doctor who predictably wrote a report indicating she had fully recovered from her injuries when her own doctors continue to explain she has most certainly not recovered. If I had been representing her at that time, OWCP would not have sent her to this doctor, and if they did, I would have known to object. Even though FECA is supposed to be a noneadversarial process, and OWCP has an obligation to protect injured workers, in practice, OWCP treats injured workers in an adversarial manner and pretends that an injured worker is fully informed about all nuances of this process. So the answer to that common question in this case is that if I had been representing Ms. X she would most likely not even have been sent to this doctor, and if she had, I would have known to object to them selecting him, and she would then most likely not have had her benefits terminated. There is a great deal that a knowledgeable and zealous representative can bring to the process, OWCP is not looking out for you.

Be careful about the standard of causation

2011-11-01T20:13:00.000-07:00

The clever term "tort reform" has been used by insurance companies and corporations to press their agenda of stripping Americans of the traditional protections found in the law and creating many situations where those responsible for injuries escape liability and leave the taxpayer responsible for paying public assistance to those suffering from what should be considered work related injuries. To this end, many state workers compensation laws have been amended to make it more difficult for injured workers to receive workers compensation benefits for injuries that were once considered work related. One way of doing this is to change the traditional standard of causation to one that is less inclusive.

I recently saw this effect in the case of a client from Florida whose FECA benefits were rejected by OWCP based upon a directed medical examination report. Florida has enacted many rules that have stripped injured workers of the the traditional protections once thought to be basic concepts of workers compensation by making it more difficult to establish that a medical condition is related to factors of employment.

The standard of causation utilized by OWCP in a FECA case is whether a work factor contributes in any way or to any degree to a medical condition. In Florida, that traditional black letter standard was tossed aside by requiring a work factor to be a “major contributing cause.” My client was sent to a directed examination by OWCP with a physician who claimed his work factors were not a "major contributing cause" of his medical condition.

On review, OWCP agreed that the physician had erroneously applied the much more limited standard of causation under Florida's workers compensation law rather than the traditional standard of causation that is applicable in a FECA case.

OWCP ridicules injured workers

2011-10-26T13:30:00.000-07:00

The article below from the Dayton Daily News documents the continuing shameful actions of those running OWCP whose contempt for injured workers continues to permeate and poison the adjudication of claims by OWCP employees. Unfortunately, OWCP fails to meet its responsibility to protect injured workers as its present mindset is to focus on its relationship with "stakeholders", a term that refers only to employing agencies and contractors. Injured workers seem to be far less important to OWCP than "stakeholders."

"Atomic workers ridiculed in training manual Labor info on handling illness claims filled with pop culture references."
Tom Beyerlein, Staff Writer
10:45 PM Sunday, September 25, 2011
DAYTON -- Advocates for atomic workers sickened by on-the-job radiation exposure at places like the Miamisburg Mound Plant say they're outraged by a training manual for a federal compensation program that refers to a hypothetical claimant as "Freddy Krueger," the name of a horror movie character whose face was badly burned. The undated Labor Department manual, used in training people who screen applicants for possible compensation and medical benefits, also refers to the pathologist in a hypothetical dead worker's case as the fictitious serial killer Dr. Hannibal Lecter. The manual's jocular attitude toward workers who have suffered from cancers and other serious illnesses is "indicative of the disrespect that's shown to claimants" by Labor Department officials, said worker advocate Deb Jerison of Yellow Springs, who heads a nonprofit that helps sick atomic workers and their survivors obtain federal benefits. Some of the workers have died from their illnesses. Labor officials did not return repeated phone calls seeking comment.

The Energy Employees Occupational Illness Compensation Program, administered by the Labor Department, provides medical benefits and compensation for sick atomic workers, if it is shown their illnesses were caused by occupational exposures. Workers suffering from cancers and some other illnesses known to be caused by radiation exposures can receive lump-sum payments, as can certain survivors.

For decades, the Energy Department claimed that none of its workers was sickened by radioactive exposures. Since the program was established in 2001, it has paid $7.4 billion in compensation and doctor bills for more than 86,000 claimants.

Jerison obtained the manual in a Freedom of Information Act request to Labor and found it riddled with pop-culture references. "None of the (hypothetical) claims examiners had names like this. It was like 'Jane Doe.' Bland names, which is appropriate (for the tone of a training manual)," said Jerison, whose father, Mound physicist James Goode, died in 1960 at age 36. After a six-year process, Jerison helped her mother win survivor benefits, but her mother died in 2008 before the money arrived.

In a letter to Labor officials, chemist David Manuta of Waverly, a member of the Alliance of Nuclear Worker Advocacy Groups, called the humor "examples of (a) history of disrespect" for applicants.

Manuta also criticized the "shameful comments" in May of program Director Rachel Leiton, who, according to a meeting transcript, told an advisory board that sick workers couldn't be trusted to tell the truth in affidavits about their work history at atomic plants. Many cases involve decades-ago employment for which records are hard to find.

OSHA finds that USPS management ignores hazards and injuries

2011-10-06T05:38:00.000-07:00

A recent news article from the APWU contains important information for USPS workers who have OWCP claims arising from injuries caused by DBCS machines. The full article, which has embedded links to the documents referenced in the article, can be found at the APWU website at the following link:

http://www.apwu.org/news/webart/2011/11-007-osha-dbcsmachines-110114.htm

OSHA determined that Delivery Bar Code Sorter machines pose a direct risk to workers’ health, and that there is a “general lack of understanding about the hazards and injuries” associated with the equipment among postal managers. OSHA also reported that supervisors have ignored injury complaints; encouraged clerks to “work through” the pain, or have discouraged the reporting of injuries. “This fosters a perceived ‘lack of caring’ about the worker,” the agency reported.

If you are pursuing a FECA claim with OWCP with regard to repetitive motion injuries arising from using DBCS machines, you should read through the materials posted by APWU.

ECAB recognizes appearance of bias and throws out referee report

2011-09-18T11:59:00.000-07:00

If OWCP tries to send you to Menachem Meller, M.D., be sure to object prior to the examination that the Employees Compensation Appeals Board has found that Dr. Meller's conduct gives rise to the appearance of bias and you are entitled to select your referee from a list of three physicians. In a recent ECAB decision, J.S., docket no. 10-2198, issued July 26, 2011, the Board recognized and accepted my objections to the selection of Philadelphia area physician Menachem Meller, M.D. A Pennsylvania court held Dr. Meller's "testimony as a whole preposterous throughout, offensive at times, ill willed and entirely not credible and ill prepared." The Board held in J.S. that this gives rise to the appearance of bias and that OWCP should have recognized this appearance of bias and provided us with a list of three physicians from which J.S. should have been allowed to select his referee. The failure of OWCP to do this meant that the office could not rely upon the report from Dr. Meller and that OWCP must now send us a list of three physicians and schedule a new referee examination. Interestingly, it has now been almost two months and OWCP still has not acknowledged or acted upon the remand order from the Board. The Board also noted that OWCP's argument that I had only cited one court decision criticizing Meller was unpersuasive. If OWCP attempts to refer you to this physician, you must object PRIOR to attending the examination and request that because of the appearance of bias you are entitled to be given a list of three physicians from which you can select your referee.

Help your doctor to write good reports

2011-09-06T00:01:00.000-07:00

In a FECA case, OWCP always expects your doctor to write narrative reports that discuss how you were injured and explain how that event caused or aggravated your medical condition. Many people receive letters from OWCP telling them that their doctor did not provide a sufficiently rationalized report or otherwise did not explain how their work activity caused or aggravated the medical condition(s) at issue. Frequently, someone in this situation then provides me with copies of reports from their doctor starting out with a background such as "Mrs Jones returns, her shoulder is killing her, examining her shoulder I find..."

A doctor is trained to walk into the exam room, ask you what problem you are having, dictate this into her notes, and then go on and examine you, and complete the treatment note or report based upon the exam. The problem here is that the doctor is just putting down what you told her.

When you are in the exam room and the doctor comes in and greets you, you must provide a brief summary of your injury. The doctor is not their for a social visit, you need to provide a brief factual summary of your situation such as: "Nice to see you doctor, I was injured on xx/xx/xxxx, when xxxx happened, I felt xxxx symptoms, since then I have had xxxx treatment. I still have xxxx symptoms." You get maybe 20-30 seconds of the doctor's attention, USE IT. Once you have given this brief summary of just the facts, the doctor should dictate this into her notes and go on and complete the exam. Now when OWCP sees your treatment note, it will start out with a summary of how you got hurt and what has happened since.

ECAB finally provides notice of the right to seek reconsideration following an ECAB decision

2011-09-01T22:41:00.000-07:00

An interesting development I have noticed is that 33 of the approximately 295 ECAB decisions issued by ECAB since May 25, 2011 have some version of the following language at the end of the decision or in a late footnote:

"Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 USC § 8128(a) and 20 CFR §§ 10.605 through 10.607."

It has always irked me that there was no notice by OWCP or ECAB that the right to request a Reconsideration from the district office follows from an ECAB merit review decision. I have had many FECA claimants tell me that their case was over because ECAB ruled against them. Its easy to see how this incorrect assumption arises since there is no notice that a new reconsideration of the merits of the case can be requested within one year of an ECAB decision.

Based upon the Board having decided to start including this language in decisions, perhaps the Board would be receptive to finding that a claimant who failed to seek reconsideration within one year of a prior ECAB decision that did not include this notice must be given a merit review of his reconsideration request.

I am still trying to understand why only 15% of decisions are including suddenly this notice rather than all decisions.

USPS Proposing to Break Contracts and Withdraw from Federal Health and Pension Plans

2011-08-12T04:40:00.000-07:00

According to an article in the Washington Post, the U.S. Postal Service is proposing to cut its workforce by 20 percent and to withdraw from the federal health and retirement plans because it believes it could provide benefits at a lower cost. Read the article here:

http://www.washingtonpost.com/politics/usps-proposes-cutting-120000-jobs-pulling-out-of-health-care-plan/2011/08/11/gIQAZxIM9I_story.html

Loss of Wage Earning Capacity Determinations

2011-07-26T09:26:00.000-07:00

Many FECA claimants who have returned to work, or simply had their check reduced based upon a determination that they were capable of working even though there was no job available, can later apply to have OWCP determine that they are once again unemployable. This sort of a determination can be reviewed at any time. For instance, if OWCP determined you were capable of working ten years ago and now your work related condition has followed its natural progression (not worse due to an intervening events) and you are no longer employable, you can request that OWCP modify the Loss of Wage Earning Capacity Determination and determine that you are once again unemployable.

Be Very Careful With Your Health Insurance Decisions

2011-07-19T22:47:00.000-07:00

I received a call the other day from a gentleman who had been disabled and unable to work for several years. He is getting by on his CSRS retirement pension and is being overtaken by bills. He wanted to know how to stop his federal health insurance from his pension so he could switch to a much cheaper plan that he had learned about via a telephone call pitching this inexpensive health insurance. I warned him that he needed to be very careful.

If you cancel your federal health insurance, you generally will not be allowed to pick it back up later. Currently there are many low cost health insurance plans that provide meager benefits. While these plans are called health insurance, benefits can be capped as low as just a few thousand dollars per year. If something sounds too good to be true, its not true. Few Americans can say they know they will have regular health insurance for the rest of their lives. Federal employees can. First while during working years, then, through pensions or workers compensation. If you become disabled before completing your career, you will get your health insurance through the disability aspect of your pension, or through workers compensation benefits, from which the premiums will continue to be deducted. Health insurance, unfortunately, is expensive. But, as I suggested to this gentleman, you need to look a little more carefully at this; what sort of health insurance is somebody really going to give you for $79 per month when your current health insurance is paying $450 per month for their share of your prescriptions alone?

Secret Shopping and OWCP

2011-06-28T08:25:00.000-07:00

A Postal Inspector tactic to trick injured workers has recently been brought to my attention. An injured worker was contacted by someone from a “marketing” company who wanted her to work as a secret shopper. She met with them, was given some gift cards to use, and proceeded to “work” by occasionally buying things. Turns out, the various representatives of the company were all Postal Inspectors. The injured worker even went to a bowling party with other “employees” of the “marketing” company. Her new friends were all Postal inspectors. The injured worker was successfully prosecuted for fraud.

If you are receiving benefits because you are unable to work, you cannot work. You cannot engage in any activity that could be construed in any way as working or operating a business.

Hot Coffee - The Movie

2011-06-26T10:17:00.000-07:00

Anyone struggling with the workers compensation process recognizes how our society now treats injured workers as second-class citizens. Since the 1960's, insurance companies and big business interest groups have pushed the many myths that have together turned workers compensation and other critical safety nets of our society into decisions that cause people to feel shame and draw the scorn of those who have not had the misfortune of needing to draw these benefits.

With this in mind, I encourage you to watch Hot Coffee, a documentary about the well-known incident of the woman burned by McDonalds’ coffee. Hot Coffee shows just how a story that should be about corporate greed can be turned on its head to blame the victim. You will be shocked to learn how corporate interests spend enormous amounts of money to influence public debate to the point where ordinary citizens no longer understand their own self-interest!

Susan Saladoff produced and directed this film as an article of faith and a labor of love. Years of hard work paid off when Hot Coffee was shown at this year’s Sundance Film Festival. Shortly after that, HBO optioned the film. I had the honor of being invited to an early screening last year.

Be sure to watch this Monday at 9 pm (EST), June 27, the HBO premiere of Hot Coffee -- a documentary about the fictions and false alarms that threaten the civil justice system.

Mail Sorters

2011-06-09T18:58:00.000-07:00

Postal Service Mail Sorters
After losing almost 57,000 jobs between 2004 and 2009, the BLS expects a further 30% decline in this occupation by 2018. With more automated processes for mail sorting and increasing correspondence via e-mail and fax, this job is quickly becoming unnecessary.

DOL officials ask congress to reduce benefits

2011-05-25T07:19:00.000-07:00

Department of Labor officials who are supposed to be protecting injured workers in the administration of FECA, are continuing their scorched earth policy of partnering with employing agencies in various efforts to reduce or eliminate FECA benefits. Most recently, DOL personnel from OWCP testified to congress about ways they want to strip benefits from the FECA process. It is quite telling to see how the testimony from DOL personnel, agency personnel, and private contractors is all in lock step versus the testimony from federal unions. You can read an account of the recent hearing:

http://www.lexisnexis.com/community/workerscompensationlaw/blogs/workerscompensationlawblog/archive/2011/05/24/feca--federal-employees-compensation-act-reform-proposals-webcast-witness-statements.aspx

Work Injuries Are Heavily Unreported

2011-05-06T09:29:00.000-07:00

Despite what we tend to hear in the media from insurance companies and entities like OWCP who try to create the impression of rampant fraud on the part of injured workers, work injuries are heavily under-reported. Many workers suffer injuries and simply "tough it out" because they either don't realize they have suffered a work-related injury, or they do not want to deal with the perceived (and sometimes true) career implications and hassle factors. Recently, I have heard from many USPS employees who are afraid to file OWCP cases because of the current work environment at the USPS with the continuing effects of the NRP.

Workers who perform the most physically demanding jobs tend to get hurt the most, yet they are often the least prepared to handle this type of paper process.

Injuries that typically go unreported, in my experience, include hearing loss due to loud noise on the job and many types of repetitive motion injuries. For example, federal law enforcement officers and firefighters are are frequently exposed to loud noise during training and in the field, loud noise exposure may occur in situations where safety issues preclude the use of proper noise protection equipment. USPS employees working around large mailhandling machinery are also frequently exposed to long term loud noise that damages their hearing as well.

Whether such injuries are under-reported because of ignorance, fear of reprisal, or a work environment that encourages a tough guy attitude, its not smart to ignore your health. Ignoring an injury does not make you tough!

Online Survey - a chance to tell OWCP what you think

2011-05-03T08:40:00.000-07:00

OWCP currently has an online survey, so let them know about your experience with the federal workers compensation (FECA) process, click on the link below, then scroll down the letter and click on the link towards the bottom right:

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

Be Prepared for Your Periodic Roll Review

2011-04-27T11:00:00.000-07:00

The Federal Employees' Compensation Procedure Manual indicates at 2-0700-17, Periodic Roll Review, that the Claims Examiner should review each case at least once a year to verify continuing entitlement to benefits, ensure that benefits are being paid at the “proper” level, resolve third party issues, and discontinue benefits when warranted. The annual review of a case often begins during the month prior to an injured worker’s birthday when form letters are mailed requesting information about entitlement to other government benefits, status of dependents, third party settlements, and possible work activity. Simultaneously, a request for medical evidence is made seeking to verify continuing presence of objective findings, an ongoing relationship of the accepted condition to the work injury, and the extent of disability.

Like a series of forks in the road, what happens next depends on many factors, some of which pertain to the specifics of your case, and some of which are the programmatic emphases of the day, the workload, or most anything else. As the Scout motto says, your best move is always to “Be prepared.” Regular medical care and timely comprehensive reports, medical testing as needed, surgery when prudent, are all obviously required. If you have moved, been divorced, or had any other change in your situation, don’t wait for the review to report it.

If you know that you are not totally disabled from the work injury, but have preexisting conditions that are also disabling, or another condition that has not yet been accepted as compensable, ensure that you have complete medical records available to prove it.

Finally, if you suspect that the axe may soon fall, the best time to seek help from a knowledgeable source is before that actually occurs in order to have the best chance of preserving benefits before you open the Notice of Decision reducing or terminating your benefits. Declining workloads at OWCP coupled with today’s economic environment and budgetary issues all mean that your number may come up sooner rather than later. Be prepared!

Department of Labor is advocating reduction in FECA benefits

2011-04-15T14:17:00.000-07:00

The Labor Department has proposed what they characterize as an "overhaul" of the FECA process. It is noteworthy that OWCP has been presenting the proposed changes to employing agencies, "stakeholders" in their parlance, but has not made any effort to communicate this to injured workers who apparently get in the way of the process of managing FECA, the federal workers' compensation benefits program for federal employees. This is being presented as a way to move older, injured workers into retirement and remove alleged "disincentives" for younger employees to return to work. They propose that injured claimants should receive 70 percent of their salaries, tax free, until they reach retirement age. When they reach retirement age, under Labor's proposed plan, benefits would be reduced — called the "conversion entitlement benefit" — to 50 percent of their gross salary at the time of their injury, with cost of living adjustments, still tax free.

http://www.federaltimes.com/article/20110414/BENEFITS01/104140301/1001

Get SSA to "pay" attorney fees arising from your OWCP claim

2011-04-13T10:56:00.000-07:00

If you are receiving FECA benefits from OWCP and a reduced Social Security Disability payment from SSA, you can get SSA to "pay" your attorney fees as an "excludable expense." SSA has a document available online explaining how to report your attorney fees paid in connection with receiving FECA benefits from OWCP. The attorney fees will be used to reduce the offset amount. See SSA POMS - DI 52150.050 - Excludable Expenses

http:/policy.ssa.gov/poms.nsf/links/0452150050

Facebook and Other Social Media

2011-04-09T18:30:00.000-07:00

When you are receiving federal workers compensation benefits you are a second class citizen. Your actions are scrutinized and interpreted against you. It is always important that your activities are consistent with your physician’s restrictions. If you can’t push a mower around at work, you better not show up on a video pushing one around at home. With the explosion of social media has come a new world of risk for injured workers. Comments, pictures, friends, all of this information that gets posted becomes possible sources of negative information about you. If you are posting online, realize that it will likely be read by people who are not looking out for your best interest. That picture of you attending a sporting event or together with your friends may give a false impression of your ability to function. I recommend that my clients always assume that they are under surveillance by their employing agency or OWCP. If you must post to social media sites such as Facebook, assume that what you post is going to get reviewed by someone from your job.

Time Limitations Do Not Always Apply

2011-04-01T07:51:00.000-07:00

Last spring I commented on time limits for filing a federal workers compensation (FECA) claim with OWCP. It bears repeating that just because an injury occurred long ago, the claim can sometimes still be filed now. Not that procrastinating is a good idea, and certainly the passage of time can make it impossible to get benefits approved that would have been winnable had the claim been pursued in a timely manner; nonetheless, a claim that is seemingly out of time can still be successful under some circumstances.

The time limitation to file a claim for an occupational exposure such as hearing loss and asbestosis is three years from when you were last exposed to the work factor or three years from when you knew or should have known of the illness, whichever is later. “Notice” is the key word. If your employer conducted screenings for asbestos exposure or hearing loss, those records in your personnel file can sometimes be used many years later, when your claim is seemingly far out of time, to establish “notice” of your claim to your employer.

Another area where time limitations may not apply is with schedule awards. So long as your claim has not been terminated, you should be able to claim a schedule award or an increase in a schedule award. The critical time limitation is that you must be alive to claim it. That means the CA-7 requesting the schedule award and sufficient medical evidence to establish your rating must be in the workers compensation file while you are alive.

Even when someone has received an unfavorable decision in a FECA case from OWCP and they have missed the one year for requesting further review, there are limited circumstances where a Reconsideration can successfully be pursued. However, the standard of proof is much more difficult, described by OWCP as “clear evidence of error.” Generally, new medical evidence will not get you over this hurdle. In my experience, one must usually point to an error by OWCP to meet this standard.

A claim for compensation for lost wages in an accepted case may be claimed well after the fact as may an election of benefits if you are in receipt of an OPM annuity. Claims for consequential injuries and recurrence of disability do not have a firm deadline for submission either.

A request to modify a Loss of Wage Earning Capacity determination can also be submitted at any time. This is especially relevant presently for many USPS workers who are being put out of work due to the NRP who were previously given erroneous LWEC determinations.

Computer Problems Delay 3/1/11 COLA for FECA Recipients

2011-03-12T16:00:00.000-08:00

I have in recent days received many phone calls from FECA recipients wondering why they had not received the March 1, 2011 COLA adjustment to their periodic roll wage loss and schedule award payments. The March 1, 2011 COLA is 1.7%.

I have spoken with several knowledgeable persons who confirm that some sort of computer glitch has delayed implementation of the 1.7% COLA. The next periodic roll payments should reflect the COLA; OWCP will send FECA recipients a separate supplemental check to cover the COLA adjustment effective March 1, 2011 or they may include it in the next periodic payment.

At least one claimant who called District 2 (NY) was told that there will not be a COLA adjustment this year which I am advised is incorrect. Unfortunately, FECA claimants will actually see their net check go down once again in 2011 as the cost of health insurance continues to increase far more rapidly than the COLA on their wage loss and schedule award payments.

Beware Bad Advice About A Schedule Award

2011-03-12T05:33:00.000-08:00

These days, there are some lawyers advertising heavily who really just want to handle schedule award cases. But be careful. If you pursue a schedule award recklessly, you may be putting your approved workers’ compensation benefits at risk.

I met with a gentleman the other day who has spoken to me on numerous occasions over the last decade regarding his long-standing workers compensation case. This time he was poking around on the internet and stumbled on the website of a lawyer who apparently only wants to focus on getting FECA claimants schedule awards from OWCP. The website brags about how much this lawyer can get injured workers for schedule awards. A link pops up inviting you to speak with the lawyer. Next thing he knew, they were discussing his case on the phone. This lawyer starts explaining how he can get him a schedule award, and that he should be entitled to a lot of money.

Now this gentleman has had a hard life and, fortunately, has learned to think twice about things. We sat down and talked about the case and the various pluses and minuses of the situation. Sure, he could pursue a schedule award. But a schedule award is most valuable to someone who is back to work earning a salary or to someone receiving a pension under CSRS. This gentleman is not eligible for a pension and cannot work which means that his schedule award must be collected INSTEAD of his wage loss check. So all he would get is a slightly larger check temporarily, probably less than a year in this case. Much of the gain would end up in the pocket of the internet lawyer. AND, the danger is that when you poke OWCP, you never know where it might lead.

I advised the gentleman that I would not open anything up with OWCP on a case like this without first making sure that his current entitlement is rock solid. A small net schedule award payment is not worth the risk that his check could be significantly reduced for the rest of his life, or maybe even cut off, as a result of a new round of directed medical examinations with OWCP-selected physicians. Pursuing a schedule award without considering the repercussions is reckless. I was not surprised that I had NEVER seen the internet lawyer’s name on an ECAB decision, which indicates that he does not have much experience handling these cases.

Be careful, there are a lot of predators out there, and not just OWCP.

Benefits for Same-Sex Married Couples Under FECA

2011-02-23T17:01:00.000-08:00

The Obama administration has now formally stated that government discrimination against gays and lesbians is unconstitutional under the equal protection principles of the Fifth and Fourteenth Amendments. I would be interested in hearing from any FECA claimants who are in a same-sex marriage but are not receiving the augmented compensation rate that a married person living with their spouse is entitled to receive. The following link contains the Department of Justice announcement.

http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

Q&As about FECA benefits

2011-02-17T09:00:00.000-08:00

OWCP has released a publication that describes in non-technical language the basic provisions of the Federal Employee Compensation Act (FECA). It is written in a question-and-answer format and addresses the most common issues about entitlement and claims processing. Injured workers may want to read this document to get an overview of the benefits that they are entitled to receive.

Here is a link: http://www.neguard.com/HRO/documents/ca-550.pdf

How do I change my attending physician in my OWCP case?

2011-01-03T08:16:00.001-08:00

I am frequently asked by FECA claimants "how do I change my attending physician for my OWCP case?" This can be a problem because many claims examiners will at first ignore your inquiry, then send you a letter telling you to explain why you want to change physicians, and then send you a response to your explanation telling you that your current physician, in the opinion of the claims examiner, is giving you proper care. All of which will likely have wasted six months. The simple way to change physicians is to get a note signed and dated by your current attending physician addressed to OWCP in which the current physician writes "Please be advised that I turn over the function of attending physician to (fill in the name, address, tel number of the new doctor)." Under this circumstance, there is nothing for the claims examiner to do other than document to the file that the prior attending physician has turned you over to another physician. I find that by the time you want to change, the physician's office is often happy to see you go. You can bring in the note needing only a signature to your physician's office and explain that you need a note like this from the doctor. Frequently, the doctor will sign that note. Put your claim number on it and send it in to OWCP, you now have a new attending physician.

Of course, if the reason you need to change is that your current attending physician has retired, relocated out of the area, or has stopped accepting FECA claims, you should simply write the examiner explaining your physician has retired (etc) and you have selected a new attending physician who is ___.

Filing Deadlines

2010-10-31T08:00:00.000-07:00

Typically, a claim for compensation must be filed within three years of an injury. The three-year time period begins to run from the time the employee knew or should have known that her condition was caused by her job.

This deadline may not apply if the injured employee’s immediate superior was notified of the injury within 30 days of its occurrence. The employee must show not only that the supervisor knew of the injury, but also that he/she knew that it occurred on-the-job. Section 8119 of the Act gives specifics of notification requirements.

In the case of occupational disease, the time for filing begins to run when the employee knows or should have known that her condition was caused by her employment. Where the employee continues to be exposed to the work factors causing the condition, the time limitation starts over every time the person is exposed again, and will run from the date of the last exposure to the work factor. For instance, if you are exposed to loud noise or asbestos on the job, if you learn that you have a medical condition caused by that exposure, but you continue being exposed while continuing to perform your federal employment, your time limitation does not start running until the last day you are exposed to that work factor in your job.

Flaws in the AMA Guides, 6th Edition

2010-10-14T11:21:00.000-07:00

There is a crisis occurring with schedule awards. OWCP has adopted the AMA Guides, 6th Edition. Unfortunately, the AMA appears to be completely in the pocket of the insurance industry as impairment rating percentages have plummeted under the 6th Edition. OWCP with its complete focus on pleasing employing agencies and complete disregard for the well being and rights of injured workers will likely characterize this immense cost savings as the result of good management practices, not merely the adoption of an anti-worker methodology for determining schedule awards. Doctors now complain bitterly about how much more complicated and time consuming it is to do a rating under the 6th Edition and how frustrating the process is because they are forced to provide ratings that vastly underrate workers' impairment. The design of the 6th Edition prevents them from rating all of the conditions impairing a rateable body part, which is in direct conflict with the FECA requirement that all impairments to the rateable body part due to the injury or pre-existing conditions must be included in the rating.

Recently, the Employees Compensation Appeals Board had an opportunity to correct this violation of FECA, unfortunately they also chose to go along with the anti-worker sentiment that is entrenched at OWCP. Obviously, OWCP should have done what many other jurisdictions have been doing and rejected the AMA Guides, 6th Edition, as fundamentally flawed and unfair to the injured worker.

OWCP is hiring!

2010-08-17T19:23:00.000-07:00

Turn your experience as a claimant into a job working for these folks in Florida:

http://federalgovernmentjobs.us/jobs/Workers-Compensation-Claims-Examiner-2006590.html

Noise Exposure and Federal Workers' Compensation

2010-08-07T14:14:00.001-07:00

Federal employees who are exposed to noise in the course of their job are entitled to workers compensation benefits for the damage this causes to their hearing. If you have worked around loud machinery in the USPS or for other federal agencies, or have been otherwise exposed to noise on the job, you must file for your workers compensation benefits within three years of when you learned that noise has damaged your hearing. If your work environment then continues to expose you to noise, your workers' compensation claim needs to be filed within three years of when you were last exposed to noise on the job. There are many errors that can arise in OWCP's handling of this sort of case that can cause your benefits to be denied or be far lower than they should be. If you think your federal job has damaged your hearing, you should be sure to protect your rights by acting within the relevant time limitations. If you are not sure of your time limitation, you should investigate this immediately in order to avoid losing your entitlement to benefits on a technicality.

USPS fails to submit CA-7 forms

2010-08-03T07:57:00.000-07:00

I presently have several clients with accepted permanent restrictions from their workers compensation claims who have lost all or most of their working hours as a result of the USPS NRP. These folks are entitled to receive workers compensation pay for the hours that the USPS does not have work. And they would, if the USPS would complete and submit CA-7 forms. Unfortunately, families are going without income for weeks, and in some cases months, because the USPS will not process CA-7 forms, and OWCP will do nothing about it.

The claims examiners tell us that there is nothing they can do until the USPS provides the missing information. But I challenge that notion. Why can’t OWCP start paying the workers based on an educated guess as to their pay rate? OWCP could easily obtain a paycheck stub or an SF-50 from the injured worker. If the USPS later documents that the injured worker was overpaid, there would be a without fault overpayment because the overpayment was created by the USPS’ failure to respond.

OWCP’s refusal to take simple steps like this continues to document its complete alignment with employing agencies and the lack of concern for protecting injured workers.

Sun Exposure Can Cause Work-Related Cancers

2010-07-17T16:45:00.000-07:00

I recently reviewed an article, “Skin cancer as an occupational disease: the effect of ultraviolet and other forms of radiation”[1] that explained: “Members of several occupational groups appear to be at a higher risk of skin cancer. There is an increased risk of skin cancer amongst outdoor workers, such as farmers, welders,…police officers, physical education teachers…. Although sun exposure is thought to be a common etiologic factor, some studies have suggested alternative explanations, such as irradiation from the welding arc in welders, [and] nonionizing microwave frequency radiation from radar use in police officers….Occupations in which there is an increased exposure to ionizing radiation, such as radiation technicians and radiologists, showed an increased risk for melanoma and NMSC” (non-melanoma skin cancers.)

Historically, federal workers compensation claims for skin cancer seem to be geographically distributed; letter carriers in the Southwest United States seem to file more skin cancer claims while such claims are quite rare in the Northeast.

Eczema is a less significant occupational disease for which health care workers are at risk as well as those engaged in printing, metal machining, motor vehicle repair, and construction.

In addition, NIOSH, the National Institute for Occupational Safety and Health
has published a list of occupational carcinogens: http://www.cdc.gov/niosh/topics/cancer/npotocca.html
listing substances that cause a variety of cancers.

One tends to think of occupational disease claims as orthopedic in nature, to a lesser extent, psychological, along with some lung conditions and hearing loss, but there are a wide variety of complaints and disease types that may arise from the performance of duty in federal employment. Many occupational illnesses are underreported due to lack of awareness or fear. It is important to remember that occupational illnesses that can take many years to develop are also work-related, entitling injured workers to medical care, wage loss payments, and schedule awards.

NRP Withdrawal of Modified Work is a Valid Basis for a Recurrence

2010-06-30T07:46:00.000-07:00

The Postal Service National Reassessment Program (NRP) has caused countless USPS employees to lose their jobs or have their hours reduced to as little as one hour of work per day. I get many calls these days from USPS employees who have been put off the clock, partially or totally, with the Postal Service saying that they don't have work available. If you have an approved federal workers compensation claim, and this happens to you, you should file a Recurrence immediately. On the Recurrence Form (CA-2a), where you are asked to describe the Recurrence (box 21), you should indicate that your temporary modified duty job was taken away or your hours were reduced. You must also start filing CA-7 forms at the end of every pay period. DO NOT PROCRASTINATE regarding any of this.

OWCP should approve your Recurrence based upon the USPS withdrawing work. Make sure you have in writing from the USPS what has happened, and send a copy of that letter directly to OWCP. Remember, as always, to put your claim number on every piece of paper you send to OWCP.
 
If OWCP responds by telling you that you are not entitled to a Recurrence because a wage earning capacity decision was issued previously in your case, you should call me. Many such decisions were issued improperly over the last 20 years and can be overturned.

Metal Spray Powders

2010-06-18T16:24:00.000-07:00

I was recently reminded of a client who passed away some time ago who had worked as a welder on a military base repairing parts from fighter jets. Unfortunately, this mission-critical task exposed him to metal spray powders that caused him to develop Nasopharyngeal cancer, and he eventually passed away from complications from this illness. When he came to me, his benefits had been denied repeatedly and it was very satisfying to help straighten out his case. He was able to receive life-prolonging treatments that his health insurance was not willing to pay for, and his family continues to receive support from OWCP by way of survivor benefits now that he is gone. Welders who used metal spray powders are at risk of developing serious health problems. Nasopharyngeal cancer is just one of various life-threatening illnesses that is tied to exposure to nickel and other metals found in these products. If you worked with metal spray powders, or have a friend or loved one who did, and have been diagnosed with cancer or other illnesses, it may well be due to that work-related exposure.

Beware the Intervention Nurse

2010-06-03T08:43:00.000-07:00

One way that OWCP likes to “bully” injured workers is to assign an intervention nurse soon after an injury or following surgery. The nurse’s goal is to get your doctor to curtail treatment and return you to work, despite your health.

Although the nurse does not have the right to sit in on your appointment with your doctor, many will try. If you allow the nurse in to the examination room during your appointment, this can cause several problems. You are no longer free to discuss your situation with your doctor. The nurse’s presence will increase the time it takes for your examination. And, the nurse may annoy your doctor by questioning his treatment plan and/or harassing him to release you back to work.

You should discuss this situation with your doctor. One solution is for your doctor to advise the assigned nurse that any meeting should occur after your appointment, and the nurse will need to prepay for the amount of time that the nurse wishes the doctor to set aside.

YOU need to have a good rapport with your doctor. Do not let the intervention nurse jeopardize this!

OWCP Ignores Mandate for Open Gov't

2010-04-15T13:54:00.000-07:00

President Obama has called for more transparency in government and has required all Departments to execute this concept. Unfortunately, OWCP has not gotten the message. They continue a decade-long pattern of pretending to serve injured workers, while focusing all of their energy upon pleasing employing agencies.

For example, OWCP has added Skype links to “facilitate” calling key personnel such as Regional Directors and top National Office Administrators, but if you search for such key personnel, you do not find any of their names in Skype. Other DOL agencies are issuing frequent accessible news releases, but not OWCP. Other DOL organizations have had live video recorded chats, but not OWCP. OWCP’s presentation of their “Strategic Plan” held on March 25, 2010, was not video-taped for public viewing nor were there any outside participants other than some former OWCP employees who now work for other government agencies. This continues a pattern of OWCP mistakenly viewing its “customer” as the employing agency, and ignoring the plight of the injured worker.

2010 COLA

2010-02-17T11:41:00.000-08:00

OWCP has published the 2010 annual cost-of-living adjustments (COLA):

Pay Rates: The new maximum compensation rate based on the salary of a GS-15, step 10, is now $129,517 per year. The minimum compensation rate is the salary of a GS-2, Step 1 or $20,017 per year. The weekly minimum is $288.71 and the maximum is $1,868.03. Thus a newly calculated payment as of January 18, 2010 for 28 days would be $1,154.83 for the minimum and $7,472.13 for the maximum. In death cases, the monthly pay is a minimum of $1,668.08 and a maximum of $8,094.81.

Cost-of-Living Adjustments for March 1, 2010 based on the “Consumer Price Index for Urban Wage Earners and Clerical Workers” (CPI-W) is 3.4 percent. The increase is applicable where disability or death occurred before March 1, 2009. The maximum compensation rates are $7,472.13 per four weeks or 1,868.03 per week after rounding to the nearest $1.00 monthly or the nearest $.25 weekly. By contrast, for SSA beneficiaries there is no cost of living adjustment for 12/01/2009–11/30/2010.

Debts: The interest charge on overpayments has also been changed to 1.0 percent for January 1, 2010 through December 31, 2010. This compares to a rate of 3% last year. The rate will be reviewed again on July 1, 2010 to determine if the Treasury has changed the rate.

Mileage: Effective January 1, 2010 the reimbursement for use of privately owned automobiles necessary for medical treatment has been reduced to $.50 per mile compared to $.55 last year.

Change in Mental Health Law May Help With Claims for Emotional Conditions

2009-12-18T08:37:00.000-08:00

The Wellstone-Domenici Mental Health Parity and Addiction Equity Act, effective on January 1, 2010, ends health insurance benefits inequity between mental health/substance use disorders and medical/surgical benefits for group health plans with more than 50 employees.

How does this apply to federal workers? If you have an emotional condition caused or exacerbated by your job, or if you develop a psychiatric condition as a result of your physical injury, this Act may make mental health treatment more affordable. Later, if you file a workers' compensation claim, your treatment records provide the evidence necessary to establish the existence of your work-related condition. Without treatment records, it is virtually impossible to support a claim. Once a claim is approved, OWCP is responsible for paying for your past as well as future work-related treatment.

Note: In a federal workers' compensation claim, OWCP will only consider reports from “physicians” including psychiatrists or Ph.D. level Clinical Psychologists. Other providers such as social workers, Master’s degree level psychologists and spiritual counselors are not considered “physicians” in a federal workers' compensation claim, and their reports cannot be used to establish a claim.

Open Season Is Here

2009-11-23T08:44:00.000-08:00

If you need to change you health insurance enrollment, you can download or print-out all of the information you need at http://www.opm.gov/insure/

Remember, open season runs November 9 - December 14, 2009

Federal regulations require an annual Open Season to be held each year from the Monday of the second full workweek in November through the Monday of the second full workweek in December. You can find more information about the annual Open Season dates in the FEHB Handbook.

You must submit your Open Season enrollment change before midnight, Eastern Standard Time, on the last day of Open Season to be considered timely filed. Open Season enrollment changes take effect the first day of your first full pay period in January of the following year. You can find more information in the FEHB Handbook.

from http://www.opm.gov/insure/federal_employ/index.asp?AnswerId=76

OWCP Requests for Medical Reports

2009-10-26T11:51:00.001-07:00

Periodically, OWCP sends letters to claimants requesting a current physician’s report and a completed OWCP-5 form as part of their annual review process. Note that OWCP’s letter may include a list of accepted medical conditions, but it NEVER includes a copy of the Statement of Accepted Facts (SOAF). This is unfortunate because a physician's report is frequently worthless if it does not incorporate the SOAF.

If you receive such a letter, be sure to tell your physician that his/her report needs to include an accurate discussion of the history of your work injury as found in the Statement of Accepted Facts (SOAF); otherwise, OWCP can choose to disregard it.

If you don't have a copy of the SOAF to share with your physician, you should request a copy in writing (not by telephone) from OWCP.

VA Employees May be Owed Back Pay

2009-10-23T06:33:00.001-07:00

FEDERALDAILY.COM reports that a recent court decision may award back pay to some VA health care workers (see complete news release below). If you end up receiving back pay as a result of this court decision, you may also be owed an adjustment from OWCP if your pay rate on your OWCP case should have included this pay.

Court Decision Would Award Back Pay to Some VA Health Care Workers
Current and former health care employees at the Department of Veterans Affairs (VA) who worked nights and weekends may be eligible for up to $10,000 each in back pay under a recent federal court ruling. The case affects VA health care employees who either currently or formerly worked at VA on Saturdays or at night after 6 p.m. from September 1995 up until the present. The U. S. Court of Federal Claims ruled that VA should have paid these employees the customary weekend premium pay of 25 percent or night premium pay of 10 percent whenever they took paid leave instead of working their weekend or evening shifts. Under the court ruling, all claims must be filed by Feb. 9, 2010. The court is still working out ways to calculate the back pay and interest in each individual claim, according to an Oct. 16 statement posted online by the National Federation of Federal Employees. The case is Quimby v. United States, No. 02-101C. The judge in the case said that current and former VA employees should not call the U.S. Clerk's office because all the necessary explanations are contained on the Web site www.VAbackpay.com, according to a statement by the American Federation of Government Employees. Those who may qualify for an award in the case include registered nurses, nurse anesthetists, licensed practical nurses, licensed vocational nurses, pharmacists, licensed physical therapists, occupational therapists, respiratory therapists and employees in over two dozen other specialized health care positions. -Federal Daily

To see more, go to:
www.afge.org/index.cfm?fuse=content&contentID=2042 or
www.nffe.org/ht/display/ArticleDetails/i/16112

OWCP Whistleblower!!

2009-07-31T18:16:00.000-07:00

Here's an interesting story
http://www.propublica.org/feature/plan-to-pay-sick-nuclear-workers-unfairly-rejects-many-doctor-says-731

The Energy program is run by the same people in charge of the FECA program. Perhaps we are finally going to see things start to crack open and some accountability for the bad acts of those running this program.

The entire OWCP focus is on massaging statistics to make the program look good. There is NO focus on providing quality work.

OWCP Hides The Rules and Takes Away Your Rights

2009-06-13T17:58:00.000-07:00

Since the late 90's OWCP has posted the procedure manual and other reference materials explaining how claims are to be adjudicated and otherwise addressing specific policy issues. That was a tremendous improvement over the situation when I first started handling these cases when there was a massive paper procedure manual. Updates would arrive in the form of pages that needed to get replaced in the enormous paper document and you would need to replace pages that had been revised.

Keep in mind that FECA is a unique law in that it creates what is essentially a self insurance process for the federal government. There is no appeal out of this process into any court, it is a closed system. The people setting policy are the same people responsible for overseeing the claims process. The statute contains a section, called a "door-closing provision", that bars you from appealing this process into any court. Federal courts consider this system to be "non-adversarial" and there is a long tradition of rules that were designed to protect the injured workers. OWCP has an obligation to help you with your case. This is not like a normal litigation system where each side is simply protecting itself and wins by beating you out of benefits.

Unfortunately, the powers that be at OWCP no longer understand their obligation to the injured worker. Today, this is a system that views injured workers as whining frauds who get in the way of demonstrating to Congress that costs have been reduced and interferes with OWCP management's ability to keep the employing agencies happy.

This shift seemed to reach a tipping point about 5 - 6 years ago. It was at that point that the people running the fed comp process at OWCP decided to get rid of the old way of doing things where they put all the rules applicable to these cases out there for anyone to find and understand. Obviously, they could not do this in an open and honest way, they had to do this by stealth in a way that would not seem obvious.

One of the first things they did was to take down the easily searchable versions of the procedure manual and other policy documents, and replace them with non-searchable gigantic pdf files. Instead of being able to do a text search for a term, now you need to read through pdf documents, some of which can be a thousand pages long, just to find references to a term.

In the same vein, OWCP also simply stopped updating the procedure manual. If you look at the table of contents you can see from the dates that sections were last updated that the procedure manual seems to have been abandoned. It is the same with FECA Bulletins, Memos, and Circulars. They no longer put any substantive rules out there for you to find.

How can this be? There used to be dozens of updates and policy memos every year. There used to be a quarterly summary of significant ECAB decisions alerting examiners to new issues and to recurring errors. In 1999 and 2000 there were two substantial policy documents discussing steps the district offices must take to make the directed medical selection process more fair.

Now, instead of updating the published rules and issuing policy statements explaining how the program is supposed to run, they now do the updates by way of telephone conference calls and internal emails, that they refuse to release in response to FOIA and PA requests, to district directors addressing updates to the program. It used to be that when they released these documents listing the rules, you could then point out that a claim was not being adjudicated in accordance with the published rules. What an inconvience, OWCP being held to a set of rules rather than just deciding cases on an ad hoc basis. Horror of horrors, decisions overturned and deserving claimants awarded benefits that had been denied. We can't have that anymore.

All of this secretiveness seems to be part of the world view shift that happened at OWCP earlier this decade.

The federal comp process has lost its way. Its horribly obvious that the people running this program would abolish the program if they could get away with it. Instead, they are eviscerating it. To these folks, their "customer" is the employing agency. The injured worker is just an inconvenient whiner getting in the way of servicing the employing agency.

Why doesn't the procedure manual get updated any more? Seemingly, this allows OWCP to hide its actions from scrutiny.

The shift away from openness has also come with an increasingly hostile approach at ECAB, the only review of cases that is not completely under the thumb of OWCP. Clearly, ECAB is also now comprised of persons who view the protection of employing agency whims as far outweighing concern for protecting injured workers. ECAB has steadily eliminated rules that once protected injured workers from unfair decisions. This process culminated in the waning months of 2008 with the issuance of a new rule cutting in half to six months, the time one has to appeal a decision to ECAB.

Typical of the disingenuous manner in which ECAB has conducted itself they issued a statement explaining that they were actually increasing the time for an appeal from three months to six months. While technically, the old rule said you had 90 days to appeal, but for good cause you could appeal for a year. In practice, they have always accepted all appeals for one year. Now the rule is six months, and they can waive that under special circumstances and extend it to a year. Clearly, all but the most extraordinary circumstances will result in an appeal after 6 months being denied.

When ECAB described the rule change, they explained that the old rule only allowed an appeal for 90 days, and they had doubled that to 180. They neglected to mention that the old 90 day rule was NEVER interpreted as 90 days, that ALL appeals were accepted automatically for one year. Now you only have six months.

So if you can't find information to help you understand your situation, don't be surprised. OWCP seems to want it that way.

New OWCP Tactic

2009-05-20T08:00:00.000-07:00

I have noticed a sneaky, new tactic being used by claims examiners to get rid of unwanted medical reports. It is based on a long-standing rule that when OWCP sends you to a directed medical examination (i.e., a second opinion or referee exam), and that doctor does not provide an adequate medical report, then OWCP is supposed to request an addendum from the doctor. If the doctor still does not give a good enough explanation, then that doctor's report is set aside and OWCP must send you to a new doctor.

What seems to be happening with increasing frequency is that this rule is being used as a pretext for getting rid of doctors' reports that do not fit with the claims examiner's view of a case.

I have had several clients over the last few months who were sent out for directed exams. The doctors wrote reports that were no better or worse than other reports they'd written in dozens of other cases. EXCEPT this time their reports supported the injured workers' cases. The claims examiners proceeded to invent reasons why the reports were not good enough, requested clarifications, and then declared that the clarifications were not good enough either. In this way, they were able to send the claimants to new doctors hoping to get an opinion they liked.

This tactic also sends a message to physicians that if they want more patients sent to them for evaluation and reports, they better say what they think OWCP wants them to say!

Be on guard and don't let yourself fall victim to this new trick!

Beware of Biased Claims Examiners

2009-04-01T08:02:00.000-07:00

FECA is considered a “non adversarial” system. Therefore, you would expect the program administrators to be helpful rather than hostile to the injured workers they are obligated to protect. My experience has been just the opposite. Here are some examples:

I have one client who was serving in a civilian capacity at a military base high in the mountains of Afghanistan when he suffered a fall and ended up needing a hernia repair, hip replacement, and knee surgery. It is almost four years later, and the claim was again denied by the same claims examiner for the third time. Hearings and Review keeps remanding the case, telling the examiner that he has adjudicated the case in error. The examiner then sits on the case for nine months to a year, and denies it again disregarding the remand instructions.

Some time ago, a claims examiner in the Philadelphia district office told me that all of my clients are liars, and the only reason they need to have a lawyer is because they are dishonest. This same examiner telephones injured workers and uses various scare tactics to make them think their cases will go badly because they have a lawyer representing them. Telling them the only reason they need a lawyer is because they are frauds. Workers that rebuff his threats have received unfavorable decisions and written accusations of fraud. When these wrongful actions are brought to the attention of the Philadelphia district office and the National office, the decisions are vacated, but this examiner continues his job without recrimination. He recently sent one of my clients (a decorated and disabled veteran) a letter terminating his benefits for allegedly committing fraud, without any basis for doing so. That decision was quickly vacated by his superiors who blandly dismissed the entire episode as a routine error. This is a system that is run by people who think are obsessed with outsourcing to the private sector, think that workers are frauds, and view this entire process as one that ought to be abolished.

I recently came across this posting on the Internet from someone who appears to be an examiner in the Dallas district office. Her comment indicates that, in her opinion, all but 2% of claimants are frauds: http://bighollywood.breitbart.com/bgale/2009/02/05/attach-strings-to-everyone-taking-taxpayer-money-not-just-corporations/ (scroll down to PAM L’s comment dated 2/5.). This is what many OWCP employees think about you. Keep in mind, this is a "non-adversarial" process.

Thankfully, not all claims examiners act or feel this way. But always be on your guard. You may find that the person whose job is to help you is actually completely insensitive to your plight as an injured worker.

No COLA for FECA Claimants

2009-03-24T12:14:00.000-07:00

In FECA Bulletin 09-02, OWCP explained that federal employees receiving federal workers compensation benefits will not be receiving a COLA this year:

The cost of living adjustments granted to a compensation recipient under the FECA are
based on the “Consumer Price Index for Urban Wage Earners and Clerical Workers” (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent, determining the amount of the CPI increase granted to claimants. 5 U.S.C. §
8146a establishes the base month as December.

December 2007 had a CPI-W level of 205.777 per BLS. The CPI-W level for December 2008 was reported as 204.813 by BLS, which is in fact a decrease of 0.5% from the December 2007 level. As a result of this decline in the CPI-W level, there will not be a cost of living increase for FECA recipients in 2009.

At the same time, SSA gave Social Security recipients a 5.8% increase. While OWCP personnel have their explanation as to why they gave no increase, you can see the disparity between how a politically powerful group (SSA benefit recipients) versus recipients of benefits from a program that does not care about the welfare of recipients are treated.

Rep. Hilda Solis for Secretary of Labor

2009-02-13T10:36:00.000-08:00

The nomination of Rep. Hilda Solis (D-CA) for Secretary of Labor seems to have bogged down. I urge anyone concerned about workers rights to call and write their Senators and Representative urging them to see to it that she is confirmed. You can call the US Senate switchboard at 202-224-2131.

OPM Tells Agencies to Accept Late Open Season Enrollments

2008-12-10T06:47:00.000-08:00

Federal employees should take note. Your enrollment deadline for health benefits may have been extended this year, and you should pay special attention to the options available to you. The following excerpt is taken directly from www.federaldaily.com:

"In response to widespread concerns over benefit changes that would have required many Federal Employees Health Benefits Program (FEHBP) subscribers to pay a new $7,500 co-payment for out-of-network non-emergency surgeries, the Office of Personnel Management has asked FEHBP carriers to reevaluate those benefits—and has instructed federal agencies to accept belated enrollments for the 2009 open season. The new co-payment in question would have affected enrollees in the FEHBP Blue Cross/Blue Shield (BC/BS) Standard Option. OPM told insurance carriers to propose changes no later than Dec. 8. OPM also said it would not allow changes to premiums or to other types of benefits in 2009. The extension and request for changes comes in the wake of a Dec. 3 hearing on the matter by the House Subcommittee on the Federal Workforce. At that hearing, Dr. Peter Petrucci, president of the medical staff at Sibley Memorial Hospital in Washington, D.C., noted that the new BC/BS policy would make it “financially prohibitive for the majority of patients to obtain surgery and many commonly performed procedures from the doctor of their choice,” and instead force them to obtain those services from providers who had contractual agreements with insurers. BlueCross/Blue Shield insures more than half of federal employees and retirees. To see more, go to: www.opm.gov/news/opm-to-provide-additional-protections-in-2009-for-fehb-enrollees-who-use-outofnetwork-surgeons,1443.aspx."

You can subscribe to a daily email from www.federaldaily.com regarding issues of importance to federal employees.

OWCP Demands Reports, But Won't Pay Much If You Can Even Figure Out How To Bill

2008-12-03T18:00:00.000-08:00

In an OWCP claim, it really all comes down to medical reports. Medical reports explain how your medical problem was caused by your job. And medical reports document, on an ongoing basis, how your injury or condition continues to limit your ability to work. Accurate, thorough and timely medical reports are the cornerstone of a successful OWCP claim.

That is why OWCP’s unfair and one-sided handling of medical reporting is so egregious. Here’s how it works:

Once your claim is approved, OWCP requires periodic medical reports from your doctor. These reports are to be written in the form of a narrative, discussing how you were hurt, what has transpired from then until now, and how your condition or need for treatment relates to that injury. This can be a complicated and time-consuming report for your doctor to prepare. But, here's just one of the many places that OWCP plays “gotcha.” Their letter will tell you that your doctor should bill them for this medical report, but they don’t provide explicit billing instructions. If you ask for clarification, they will tell you that the doctors' offices are supposed to know how to bill for what they do. (Guess what, they often don’t know how to bill OWCP.)

The billing code for this sort of a medical report is 99455 (for your treating doctor) and 99456 (if it is any other doctor). But, be advised that this code can only be used once a year on a case, and the doctor cannot bill for units of time, just the code. Your doctor will then get paid a set amount that is far below what OWCP pays their selected second-opinion and referee examiners. And what happens if you have two doctors--an orthopedic surgeon and a psychiatrist? What happens when your claims examiner asks for another report or wants to ask follow up questions from your doctor? What happens if you have a new or additional doctor who needs to spend a significant amount of time reviewing your records in order to prepare a report? According to OWCP, that's your problem; they are not going to pay for this.

Whereas your doctor will only get paid for one report per year, OWCP will frequently send you to multiple doctors and get multiple “clarification reports” in any one year. You better believe their doctors are paid for each and every report, and they are paid the going rate for their services.

USPS Rural Carriers May Be Entitled To Retroactive OWCP Payments

2008-11-20T11:17:00.000-08:00

The USPS has approved retroactive pay raises for USPS rural carriers with an effective date of November 25, 2006. This means that if you are a rural carrier with a date of injury on or after 11/25/06, you should fill out a CA-7 form to claim your additional pay. This form should include the date range since 11/25/06 that you received workers' compensation pay or a schedule award. The form needs to be submitted through your injury compensation office so that the agency representative can certify your pay rate. You may want to include a cover note with the CA-7 to explain your reason for submitting this form.

Even if your date of injury was before 11/25/06, you may be entitled to an adjustment if your compensation pay or schedule award was based upon a Recurrence that occurred on or after November 25, 2006.

OWCP determines your pay rate based upon either your date of injury or your last day of work (if you continued working after the date of injury). If you return to work full time for more than six months, and you then need to stop working again because of that same injury (for instance to get surgery), you will have a new pay rate based upon the Recurrence date that you stopped working.

Do You Need a Federal Workers' Compensation Lawyer?

2008-09-15T17:44:00.000-07:00

There are many things that cause someone to look for an OWCP attorney to help them with their FECA case. I speak with injured workers who have returned to work or retired, and never knew that they were entitled to a schedule award. Others call me when they are concerned that they are at risk of losing their benefits or being forced to return to work against their doctor's orders. And still other people call me when they have already had their claim terminated or denied.

This can be a complicated process and a lawyer can help you to get through it.