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Sunday, September 18, 2011

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.

Tuesday, September 6, 2011

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.

Thursday, September 1, 2011

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.