Be careful about the standard of causation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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?

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 ___.