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Friday, December 18, 2009

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

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.

Monday, November 23, 2009

Open Season Is Here

If you need to change you health insurance enrollment, you can download or print-out all of the information you need at

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.


Monday, October 26, 2009

OWCP Requests for Medical Reports

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.

Friday, October 23, 2009

VA Employees May be Owed Back Pay

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, 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: or

Friday, July 31, 2009

OWCP Whistleblower!!

Here's an interesting story

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.

Saturday, June 13, 2009

OWCP Hides The Rules and Takes Away Your Rights

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.

Wednesday, May 20, 2009

New OWCP Tactic

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! 

Wednesday, April 1, 2009

Beware of Biased Claims Examiners

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.
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.

Tuesday, March 24, 2009

No COLA for FECA Claimants

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.

Friday, February 13, 2009

Rep. Hilda Solis for Secretary of Labor

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.