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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.