Appeals
Federal Workers Compensation

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.

The 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:

• request a hearing within 30 days;
• appeal to the Employees' Compensation Appeals Board (ECAB) within 180 days; or
• request reconsideration of the decision and submit further evidence and legal argument within one year.
  

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.

Hearings
Once a claimant requests a hearing, the OWCP district office transfers the claim file to the Branch of Hearings and Review in Washington, DC. Previously, requests were assigned to hearing representatives, who traveled to different cities to conduct hearings. A claimant can still choose to have a hearing in person, but within the last few years the hearings office has been encouraging telephone hearings, which are scheduled faster and work well.

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.

ECAB
A claimant may not submit additional evidence to ECAB. Board members make a decision based on the claim’s record. ECAB takes many months to render a decision, and then an unfavorable decision may be final with no further appeal rights.

Application for Reconsideration
When requesting reconsideration of a decisions, a claimant must submit new evidence and/or new legal argument to obtain a merit review of his case. A merit review is important, because, if OWCP issues an unfavorable decision on reconsideration, the claimant retains 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:

• reduction of wage-loss due to a wage-earning-capacity determination;
• termination of benefits;
• denial of a recurrence claim.

There are three critical times when the claimant should seek and gain the support and assistance of an attorney: a proposed reduction of compensation; a proposed termination; and a job offer, which OWCP has determined to be suitable. Action must be taken and before the deadlines. Of course, it is also important to appeal a Notice of Termination of Compensation or a Notice of Reduction with the help of an attorney.

Notice of Proposed Reduction of Compensation
OWCP likes to decide that an injured worker is no longer totally disabled but instead is only partially disabled. In that situation, OWCP will assign a vocational specialist to a claimant’s case for the purpose of retuning the claimant to some work.

• After evaluating the worker in terms of medical limitations and vocational skills, the vocational specialist will contact the federal employer to see if any positions exist. If a return to federal employment is not possible, jobs in the private sector will be considered. Even if the claimant does not actually become employed, OWCP may still determine there are positions for which he could be hired. OWCP then will make a wage earning capacity determination and reduce wage-loss compensation accordingly. A simple illustration is OWCP reducing compensation by 50% because the claimant is now capable of earning ten dollars an hour where before he earned twenty dollars an hour in his federal job.
  
• In a notice of proposed reduction, the claims examiner gives the claimant 30 days to explain why his compensation should not be reduced. OWCP will give no extensions of time beyond the 30 days.

WHAT AN ATTORNEY CAN DO
A reduction of compensation can be challenged from two directions. An attorney can document and present the challenges to OWCP. One direction is to question the validity of the vocational evaluation. For example, sometimes the jobs listed are nonexistent or very limited in the claimant’s commuting area. The other direction is with medical records, such as a current report stating that the jobs are beyond the claimant’s limitations

Notice of Proposed Termination
OWCP routinely reviews claimants’ eligibility for compensation by obtaining updated medical information. I have seen a claimant receive a notice of proposed termination after twenty years on wage-loss benefits; however, recently OWCP has been targeting claimants who have only been on wage-loss a few years. Studies have shown OWCP that it is easier to stop the compensation of a claimant who has received compensation a relatively short time.

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.

WHAT AN ATTORNEY CAN DO
If OWCP goes ahead and sends a final notice of termination, a claimant can appeal the notice of termination but must go through the lengthy appeal process without benefits. The time to send in the Calvary is when responding to the notice of proposed termination.

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.

Job Offer
Forever Disqualified. That phrase certainly has the ring of finality, and OWCP has no greater threat in its computers. OWCP will disqualify a claimant when the claimant fails to return to work in a job OWCP has found suitable in terms of his medical limitations.

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.

WHAT AN ATTORNEY CAN DO
A claimant can appeal a disqualification, but, honestly, winning such an appeal is tough. The employer comes up with the job offer, and, if the claims examiner sticks to saying the job is suitable, the idea that the claimant should return to work becomes cemented in the claim file. By not taking the job, the injured worker is labeled uncooperative.

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.

Second-Opinion/Referee Evaluation
At various stages of a claim, the claims examiner may determine that she needs a medical opinion beyond the opinion of the claimant’s treating physician. OWCP selects the specialist, arranges for a second-opinion evaluation appointment, and so notifies the claimant.

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.

WHAT AN ATTORNEY CAN DO
The claimant may be unaware of the SOAF and the questions to the doctor. Yet, an attorney knows to review these documents before the claimant attends a second-opinion evaluation.

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.

Rondon Consulting 2011