Interesting new ECAB precedent

It is not unusual to receive a letter from OWCP "denying" entitlement to some aspect of your benefits that does not include appeal rights. Without a final decision and appeal rights, if you asked for review, the Employees Compensation Appeals Board and the Branch of Hearings and Review would simply dismiss your request for review as there was no final appealable decision. In a very recent decision, the Board has explained that even if appeal rights are not attached to correspondence denying you benefits, that the Board still has jurisdiction to review the denial. This is a concept long recognized by the MSPB and in many other jurisdictions. It is a small step in the long process to rein in the Kafkaesque manner in which OWCP conducts itself.

If you receive a letter denying benefits that is not framed as a formal decision with appeal rights, you can still appeal that denial to the Board. In B.C., docket 11-1903, issued March 26, 2012, the Board writes:

On July 14, 2011 an OWCP claims examiner advised appellant that her case (xxxxxx595) had been formally denied by decision dated March 12, 1993. OWCP further explained that it could not consider a recurrence on a denied claim and, therefore, no further action would be taken concerning the June 14, 2011 recurrence claim. It effectively denied appellant's recurrence claim. However, the July 14, 2011 correspondence did not provide any appeal rights. The Board considers the claims examiner's July 14, 2011 action a final, adverse decision subject to review under 20 CFR §§ 501.2(c) and 501.3(a).

This represents a long overdue recognition that the Board has jurisdiction to review a denial even where the formatting of the denial document is flawed.

OWCP contractor files for bankruptcy after allowing claimant records to be stolen

A company called Impairment Resources was recently burglarized and computer drives with confidential claimant information was stolen. This is relevant to OWCP claimants because physician Christopher Brigham, who has contracts to review schedule award requests for OWCP, performs that work as Impairment Resources.

A report from the Wall Street Journal yesterday (see link below), advises that rather than deal with the time and expense of helping people with their problems created by this breach, Impairment Resources is being liquidated in a Chapter 7 bankruptcy.

It is very troubling that OWCP continues to send confidential OWCP claimant information to Christopher Brigham / Impairment Resources under these circumstances.

Even more troubling is that OWCP has not bothered to notify claimants of the theft of their personal information nor taken any steps to advise OWCP claimants what steps they can take and what resources are available to them to protect themselves from identity theft and other problems caused by the failure to have appropriate measures in place to secure claimant records.

http://blogs.wsj.com/bankruptcy/2012/03/12/burglary-triggers-medical-records-firm%E2%80%99s-collapse/

Getting records into your OWCP file

OWCP has created a new function that allows you to "upload" records directly into your workers compensation file instead of mailing or faxing. I have been using this function for about a month and it seems to work very well. Yesterday I was speaking with a Hearing Representative about an upcoming hearing and she was able to see a document that I had uploaded to that file just a few minutes before I called her. Here is the link: https://www.ecomp.dol.gov/#/

OPM Disability Retirement

I am frequently asked how does OPM figure my disability retirement pension payment. For a FERS disability this is a fairly straightforward matter. During the first 12 months, you are paid 60 percent of your high-3, minus 100 percent of any Social Security disability benefit to which you are entitled. After the first 12 months, you receive 40 percent of your high-3. minus 60 percent of any Social Security disability benefit. Keep in mind that Social Security disability is frequently approved after OPM has already commenced paying you. In that circumstance, when you receive a retroactive payment from Social Security, you need to hold on to that money because OPM is going to come back and recalculate your pension payment from the date your Social Security started and declare an overpayment.

Social Security Disability and OWCP

If you become eligible for SSDI benefits while drawing FECA benefits from OWCP, whether for wage loss or a schedule award, there is frequently an offset that will reduce your SSDI benefit. SSA has published documents that explain how the offset is calculated. Keep in mind that attorney fees paid in connection with your receipt of FECA workers' compensation payments from OWCP should be reported to SSA, as this will be used to reduce your offset amount.

http://www.socialsecurity.gov/pubs/10018.html

Submit Your OWCP Forms Online

OWCP has gone live with a new function that allows for web submission of forms and documents. You can submit a new claim form to create your case without going through your agency if you follow the instructions to first file the OSHA form. CA-7 and CA-7a forms can be submitted as well. There is a separate function to upload documents. This is pretty amazing, I wonder if it really works. I submitted a document in one of my cases today to see what happens. Here is a link: https://www.ecomp.dol.gov/#/

Do I need a lawyer to represent me with my OWCP claim for FECA benefits?

This is a question that I get asked quite often. OWCP sends claimants form letters telling them that they do not need a lawyer to represent them. When asked this question, I try to explain that after almost 20 years, there is a lot that someone like me can bring to the table. While speaking with a prospective client the other day I ran across a situation that answers this question pretty conclusively. Unfortunately, Ms. X's OWCP claim has recently been terminated. The termination was premised upon the report from a physician, Menachem Meller, MD, who the Employees Compensation Appeals Board indicated in a July 26, 2011 decision should not perform referee examinations. Based upon that decision, OWCP stopped sending my clients to that doctor, but this injured worker was sent a notice in September 2011 to attend an examination with this doctor who predictably wrote a report indicating she had fully recovered from her injuries when her own doctors continue to explain she has most certainly not recovered. If I had been representing her at that time, OWCP would not have sent her to this doctor, and if they did, I would have known to object. Even though FECA is supposed to be a noneadversarial process, and OWCP has an obligation to protect injured workers, in practice, OWCP treats injured workers in an adversarial manner and pretends that an injured worker is fully informed about all nuances of this process. So the answer to that common question in this case is that if I had been representing Ms. X she would most likely not even have been sent to this doctor, and if she had, I would have known to object to them selecting him, and she would then most likely not have had her benefits terminated. There is a great deal that a knowledgeable and zealous representative can bring to the process, OWCP is not looking out for you.