Norman R. McNulty, Jr.
Federal Compensation Attorney

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Norman McNulty Represents Federal Workers' Compensation Claimants Nationwide

Federal Compensation Claims and Appeals

Unlike other disability programs, such as social security, there is no set sequential way to contest adverse actions by an OWCP claims examiner. Decisions list appeal options, and the claimant must somehow pick the best appeal route for his claim.

The federal regulation 20 C.F.R. § 10.0 explicitly states that proceedings under FECA are non-adversarial in nature. However, the adjudication of claims often seems adversarial. OWCP does not view compensation as a retirement program and looks to returning a claimant to work. As in baseball, OWCP’s game is a game of outs. At every step of a claim, the claimant faces threats to his eligibility for benefits.

To contest a denied claim, the claimant or his representative must decide on one of three appeal options:

1. request a hearing within 30 days;
2. appeal to the Employees' Compensation Appeals Board (ECAB) within 90 days; or
3. request reconsideration of the decision and submit further evidence and legal argument within one year.

The facts, merits, and posture of the claim determine the proper way to appeal. Decisions contain an explanation of appeal rights and an Appeal Request Form.

Mail requests for hearing by certified mail. Requests must be postmarked within 30 days of the decision.

An appeal to ECAB must reach the board by the ninetieth day, although reasons for being late will be considered.

Finally, count the date of any decision or notice from OWCP as day one. For example, in requesting reconsideration of a decision dated November 4, 2007, one would need to postmark the application for reconsideration by November 3, 2008.

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Hearings

I recommend telephone hearings. First, your hearing will be scheduled more quickly. In the past, a hearing representative would travel from city to city and hold hearings. The wait could be up to 18 months. A short wait was six months. Now, telephone hearings are typically held within three to five months.

Secondly, I can attest that telephone hearings work well. The hearing notice clearly sets out the date and the time (adjust for your time zone) and provides a toll-free number to call at the time of the hearing and informs you of a code to link you to the hearing representative assigned to your case. Your attorney calls in as well, plus any witnesses. The hearing representative directs the hearing and allows participants to testify and state argument. Hearings are scheduled to last about 45 minutes. The record can remain open for 30 days to permit submission of additional evidence.

Once a claimant requests a hearing, the OWCP district office transfers the claim file to the Branch of Hearings and Review in Washington, DC.

The claimant's employer may not participate in the hearing. However, both the claimant and the employer are provided with a transcript of the hearing, and the employer may comment on the transcript in writing. A claimant may respond to the employer’s comments.

In his decision the hearing representative often remands the claim back to the claims examiner with an order to obtain additional information, usually medical opinion, to decide the issues. (See Second-Opinion/Referee Evaluations below.) Sometimes, he will simply rule in the claimant’s favor.

Or he may agree with the claims examiner and deny the claim again. His decision will state a new set of appeal rights.

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ECAB

An appeal to ECAB must reach the Board by the deadline date. A claimant may not submit additional evidence to ECAB. Board members make a decision based on the claim’s record and argument. An ECAB unfavorable decision may be final with no further appeal rights.

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Requests for Reconsideration

When requesting reconsideration of a decision, a claimant must submit pertinent new evidence and/or new legal argument to obtain a merit review of his case. A merit review is important, because, if OWCP issues an unfavorable decision on reconsideration, the claimant has a year to request reconsideration of that decision.

OWCP sends the claimant's employer a copy of the application for reconsideration, and the employer can comment on the appeal. A claimant may respond to the employer’s comments.

Increasingly, supervisory or senior claims examiners are ordering second-opinion or referee medical examinations before deciding on the reconsiderations. (See Second-Opinion/Referee Evaluations below.)

At various stages of a claim, the claims examiner may determine that she needs a medical opinion beyond the opinion of the claimant’s treating physician. OWCP selects the specialist, arranges and pays for a second-opinion evaluation appointment, and so notifies the claimant.

The claims examiner prepares two documents. One is the Statement of Accepted Facts (SOAF); the other is a list of questions to the doctor. Both are sent to the second-opinion doctor before he conducts his evaluation of the claimant.

If a conflict exists between the opinions of the claimant’s treating physician and the second-opinion doctor, OWCP must send the claimant out for a referee examination. The claims examiner also provides the referee physician with questions and a SOAF.

The claimant may be unaware of the SOAF and the questions to the doctor. However, if the details of how the injury occurred are wrong, already the doctor, who is a stranger to the claimant he is examining, may be headed in the wrong direction. In addition, a claims examiner may not ask a leading question, which is a question where the asker is suggesting the answer. A claims examiner may not ask a question that gives the doctor an opportunity to exercise his own prejudices.

There are three critical times when the claimant should quickly seek the assistance of an attorney: a proposed reduction of compensation; a proposed termination of compensation; and a job offer that OWCP has determined to be suitable. Action must be taken before the deadlines. Of course, it is also important to appeal a Denial, Notice of Termination of Compensation, or Notice of Reduction of Compensation with the help of an attorney.

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OWCP likes to decide that an injured worker is no longer totally disabled but instead only partially disabled. In that situation, OWCP will assign a vocational specialist to a claimant’s case for the purpose of returning the claimant to some work.

After evaluating the worker in terms of medical limitations and vocational skills, the vocational specialist will contact the federal employer to see if any jobs exist. If a return to federal employment is not possible, jobs in the private sector will be considered.

Even if the claimant does not actually become employed, OWCP may still determine there are positions for which he could be hired. OWCP then will make a wage earning capacity determination and reduce wage-loss compensation accordingly. A simple illustration is OWCP reducing compensation by 50% because the claimant is now capable of earning 10 dollars an hour where before he earned 20 dollars an hour in his federal job.

In a notice of proposed reduction, the claims examiner gives the claimant 30 days to explain why his compensation should not be reduced. OWCP will give no extensions of time beyond the 30 days.

WHAT AN ATTORNEY CAN DO

An attorney can challenge a reduction of compensation from two directions. One direction is to question the validity of the vocational evaluation. For example, sometimes the jobs listed are nonexistent or very limited in the claimant’s commuting area. The other direction is with medical records, such as a current report stating that the jobs are beyond the claimant’s limitations.

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OWCP routinely reviews claimants’ eligibility for compensation by obtaining updated medical information. (See Second-Opinion/Referee Evaluations above.) I have seen a claimant receive a notice of proposed termination after twenty years on wage-loss benefits; however, recently OWCP has been targeting claimants who have been on wage-loss a few years. Studies have shown OWCP that it is easier to stop the compensation of a claimant who has received compensation a relatively short time.

At any rate, a claimant should see, on a somewhat regular basis, the doctor who treats his work-related condition. That way, the client’s own doctor is at the ready to weigh in on OWCP’s opinion on medical improvement.

In a notice of proposed termination, the claims examiner gives the claimant 30 days to explain why his compensation should not be terminated. OWCP will give no extensions of time beyond the 30 days.

WHAT AN ATTORNEY CAN DO

If OWCP goes ahead and sends a final notice of termination, a claimant can appeal the notice of termination but must go through the lengthy appeal process without benefits. The time to send in the calvary is when responding to the notice of proposed termination.

An attorney can write the treating physician and ask for a medical report that sets out the doctor’s opinion thoroughly and with wording convincing to the claims examiner. Then, the attorney can write a response that can end OWCP's idea of terminating compensation.

In the past a response would cause the claims examiner to pause and not automatically issue a notice of termination at the end of 30 days. Unfortunately, that is no longer true: often a notice of termination quickly follows.

That is not to say a response has no value. It can stop the termination or, if the claimant's response raises enough doubt, the claims examiner will seek a second-opinion report or referee report. (See Second-Opinion/Referee Evaluations above.) While OWCP acquires this additional medical documentation, the claimant's compensation continues.

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Forever Disqualified. That phrase certainly has the ring of finality, and OWCP has no greater threat in its computers. OWCP will disqualify a claimant when the claimant fails to return to work in a job OWCP has found suitable in terms of his medical limitations.

The situation starts with a job offer from the injured worker’s employer, usually some light-duty position. If the claims examiner finds the job offer suitable, he sends a notice to the claimant giving the claimant 30 days to accept the job offer or explain in writing why she thinks the job is not suitable considering her medical condition. If the claimant responds to the notice by arguing the job is not suitable but OWCP disagrees with her argument, OWCP will give her another 15 days to accept the job or forever be disqualified from wage-loss compensation for the particular injury.

WHAT AN ATTORNEY CAN DO

A claimant can appeal a disqualification, but, honestly, winning such an appeal is tough. The employer comes up with the job offer, and, if the claims examiner sticks to saying the job is suitable, the idea that the claimant should return to work becomes cemented in the claim file. By not taking the job, the injured worker is labeled uncooperative.

A claimant wants to stay away from a job that just isn’t going to work out because of his disability. When OWCP sends its notices about the suitability of a job, an attorney must determine if medical documentation exists to establish that the job is beyond the claimant’s physical or mental limitations, as indicated by the claimant’s treating physician. An attorney must review the job offer. Does it clearly state the job’s tasks and the amount of exertion or lifting needed in a work day? Is the job offer in good faith?

If the job offer is deemed suitable and the claimant can’t show that his doctor prohibits him from doing the described work tasks, an attorney may have to counsel the claimant to take the job to avoid the disqualification. A claimant may quit a job found suitable by OWCP only with strong written medical justification from her doctor and with OWCP’s okay. Otherwise, quitting that job may result in permanent disqualification from wage-loss compensation.

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Home | My Background | Appeals | How I Charge | Contact Us

Norman R. McNulty, Jr.
Attorney at Law
Jefferson 400 Professional Center
400 South Jefferson, Suite 302
Spokane, Washington 99204
(509) 327-7012 - phone
(509) 838-7572 - fax
AttyInfo@FederalCompensation.com

Copyright 2007 by Norman R. McNulty, Jr. All Rights Reserved

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