Episode 14 Federal Workers Compensation Coffee Break Podcast - Scheduled Awards Part 1 of 2

Federal Workers Compensation Coffee Break Podcast is about all things related to Federal Workers Compensation, FECA, OWCP, DOL & Longshore claim filing as an injured federal worker.  The podcast is an educational and informative training on how to navigate the DOL -OWCP claims filing process for all types of injured US government and federal workers. The podcaster has 27 years in assisting with federal workers compensation as a consultant and trainer. The podcast is free and is educational. If you need help with anything related to a federal workers compensation claim...help is just a cup of coffee away.

Schedule Awards are monetary payments for a prescribed number of weeks to federal employees who suffer the permanent total or partial loss of use of those anatomical members, functions or organs of the body that are listed on the OWCP website. There are many body parts that are covered and some that are excluded. I would suggest you go over the body part list on the OWCP website. For the sake of brevity we will not cover each body part. This is 2 part podcast series. The firs podcast is me narrating the exact wording of the DFEC procedure manual on all of the legislated rules and provision of impairment rating and scheduled awards. 

The schedule award is payable whether the employee is working, sick or on annual leave, receiving retirement benefits, or is no longer employed by the federal government. However, an employee cannot receive a schedule award while receiving compensation for wage loss at the same time they receive the schedule award.

DFEC Procedure Manual Part 2 Scheduled AWARDS

Entitlement to Schedule Awards. Permanent impairment to certain parts of the body will entitle the claimant to an award of compensation payable for a set number of weeks. The Claims Examiner (CE) should monitor medical reports for the possibility of eventual impairment to a schedule member and the date by which maximum medical improvement (MMI) is expected. If it appears that a schedule award may be payable, the CE should advise the claimant via Form CA-1053, or the equivalent, of his or her possible entitlement to such an award.
Here is the link to the DFEC Procedure Manual portion addressing the federal rules associated with Scheduled Awards, MMI, and Impairment Ratings:
https://www.dol.gov/agencies/owcp/FECA/regs/compliance/DFECfolio/FECA-PT2/group2#20808
Happy Hunting! :)
Dr. Taylor's educational podcast utilizes his experience and history as a DOL - OWCP provider and his years of consulting and teaching all things federal workers compensation related. This is an educational short form format for learning how to successfully file federal workers compensation claims. So grab a cup of coffee and lets begin.

Dr. Taylor's contact information for more information or assistance is:
https://fedcompconsultants@protonmail.com

If you need a provider or assistance with a DOL claim in Tampa, Jacksonville or other areas of Florida you can make an appointment to see him and the other providers at his clinic at 813-877-6900.

Transcript

Schedule Awards are monetary payments for a prescribed number of weeks to federal employees who suffer the permanent total or partial loss of use of those anatomical members, functions or organs of the body that are listed on the OWCP website. There are many body parts that are covered and some that are excluded. I would suggest you go over the body part list on the OWCP website. For the sake of brevity we will not cover each body part. This is 2 part podcast series. The firs podcast is me narrating the exact wording of the DFEC procedure manual on all of the legislated rules and provision of impairment rating and scheduled awards. 

The schedule award is payable whether the employee is working, sick or on annual leave, receiving retirement benefits, or is no longer employed by the federal government. However, an employee cannot receive a schedule award while receiving compensation for wage loss at the same time they receive the schedule award.

DFEC Procedure Manual Part 2 Scheduled AWARDS

Entitlement to Schedule Awards. Permanent impairment to certain parts of the body will entitle the claimant to an award of compensation payable for a set number of weeks. The Claims Examiner (CE) should monitor medical reports for the possibility of eventual impairment to a schedule member and the date by which maximum medical improvement (MMI) is expected. If it appears that a schedule award may be payable, the CE should advise the claimant via Form CA-1053, or the equivalent, of his or her possible entitlement to such an award. ( most of the time Claims examiners do not notify you of how you are qualified to receive financial settlement for your injuries) But that is a rant I will have with you some day on another podcast…😊

a. General Considerations for Scheduled Awards

(1) The length of the award is determined by the provisions of 5 U.S.C. 8107, which also lists the parts of the body which may be considered for such an award. Additional parts of the body which may be considered are listed in 20 CFR §10.404.

NOW listen up to this next part…this is written into federal LAW under the FECA act.

(2) In some instances a schedule award may be payable even if the claimant had a pre-existing loss or loss of use of 100 percent of a member or function of the body. DID YOU GET THAT??”?

Cases of this type should be developed to determine the prior usefulness of the member or function and whether the injury WHILE IN Federal employment has diminished any such usefulness, in whole or in part. I bet you did not know that!

(3) A schedule award is payable consecutively but not concurrently with an award for wage loss for disability for the same injury. See, e.g., S.W., Docket No. 10-2071 (issued July 11, 2011). However, a schedule award may be paid concurrently with salary reimbursement under the Assisted Reemployment Program. 

(4) If a claimant loses wages to obtain medical treatment during the period of a schedule award (e.g. claims hours due to a medical appointment with the treating physician), compensation for the hours lost may be paid concurrently with a schedule award, as time lost for medical appointments is not considered disability. As noted above, however, time lost for disability surrounding the appointment (if any) cannot be paid concurrently with a schedule award. 

(5) A schedule award for one injury may be paid concurrently with compensation for wage loss paid for another injury, as long as the two injuries do not involve the same part of the body and/or extremity. For example, a claimant is currently receiving a schedule award for 10% permanent partial impairment of the right arm due to a work-related right rotator cuff tear. The claimant files for total disability under another claim for the same period due to undergoing right carpal tunnel surgery. Compensation claimed for total disability cannot be paid since compensation involves the same extremity, the right arm. See J.B., Docket No. 08-1178 issued December 22, 2008; and V.P., Docket No. 07-1158 issued December 17, 2007.

(6) Lump sum schedule awards. In certain situations, a claimant may be entitled to receive a lump sum payment of his or her schedule award. Lump sum schedule awards are discussed in FECA PM 2-1300.

(7) Schedule awards unpaid at death. Under 5 U.S.C. 8109, if an individual has sustained impairment compensable under section 8107(a) of this title; has filed a valid claim in his lifetime; and dies from a cause other than the injury before the end of the period specified by the schedule, the compensation specified by the schedule that is unpaid at his death, whether or not accrued or due at his death, shall be paid in accordance with the order of precedence specified by the statute. 

Evaluation of Schedule Awards.

a. Method of Evaluation. For impairment ratings calculated on and after May 1, 2009, the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment, Sixth Edition, should be used to report findings.

b. Evidence Required. To support a schedule award, the file must contain competent medical evidence which:

(1) Shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred ("date of maximum medical improvement" or MMI);

(2) Describes the impairment in sufficient detail for the CE to visualize the character and degree of disability; and

(3) Gives a percentage of impairment based on a specific diagnosis, not the body as a whole (except for impairment to the lungs). In members with dual functions, the physician should address both functions according to the AMA Guides.

c. Special Considerations.

 (1) Impairment to the lungs should be evaluated in accordance with the Guides insofar as possible. The percentage of "whole man" impairment will be multiplied by 312 weeks (twice the award for loss of function of one lung) to obtain the number of weeks payable; all such awards will be based on the loss of use of both lungs. Thee is more here but we will skip it because it is lengthy. 

(2) Impairment due to pain. Impairment applicable to pain is inclusive as a component of the medical condition (diagnosis) and not measured separately unless the pain does not correlate with objective findings or body part dysfunction. Chapter 3 of the Guides discusses evaluation of pain if it is not classifiable in the diagnosis based impairment. An example would be fibromyalgia, or pain due to a sprain where no objective findings or identifiable abnormalities are noted. In no circumstances, though, should the pain-related impairment developed under Chapter 3 be considered as an add-on to impairment determinations based on the criteria listed in Chapters 4 – 17. When pain is the sole impairment, the physician should have the claimant complete Appendix 3-1 of the AMA Guidelines, Sixth Edition - Pain Disability Questionnaire (PDQ), or obtain the necessary information in some other format.

(3) Impairment resulting from an injury to the spine. THIS IS THE MOST MISUNDERSTOOD of all body areas…so pay close attention….While the FECA does not allow payment for impairment to the spine, a schedule award can be paid for the extremities if a spinal injury leads to impairment of the arms or legs. Impairment to the upper or lower extremities that is caused by a spinal injury should be rated consistent with the article "Rating Spinal Nerve Extremity Impairment Using the Sixth Edition" which requires specific medical evidence to confirm this impairments (i.e NCV/EMG testing etc)

(4) Impairment of the skin. With the most recent regulatory update at 20 C.F.R. §10.404, effective August 29, 2011, a schedule award can be paid for impairment to the skin, for up to 205 weeks of compensation, for injuries sustained on or after September 11, 2001. A schedule award for the skin can be paid in addition to any disfigurement award.

This is a whole page of information of qualifications so if you are a skin injury I recommend you look this part 4 up in the DFEC procedure manual part two under Scheduled awards online. 

Evaluation of Schedule Awards.

a. Method of Evaluation. For impairment ratings calculated on and after May 1, 2009, the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment, Sixth Edition, should be used to report findings and d must contain competent medical evidence which:

(1) Shows that the impairment has reached a permanent and fixed state and indicates the date on which this occurred ("date of maximum medical improvement" or MMI);

(2) Describes the impairment in sufficient detail for the CE to visualize the character and degree of disability; and

(3) Gives a percentage of impairment based on a specific diagnosis, not the body as a whole (except for impairment to the lungs). In members with dual functions, the physician should address both functions according to the AMA Guides.

c. Special Considerations.

Chapter 8 in the AMA Guides outlines specific criteria to be considered when calculating permanent impairment of the skin. In assessing skin impairment, the physician must evaluate the severity of the condition; the frequency, intensity, and complexity of the medical condition and treatment regimen; and the impact of the condition on the ability to perform Activities of Daily Living (ADLs). ADLs include bathing, dressing, eating, personal hygiene, etc. Burden of Treatment Compliance (BOTC) must also be considered, as it can be significant for skin disorders. BOTC includes, but is not limited to, the following kinds of activities: soaking affected skin daily; applying topical medications on a regular basis; avoiding sun exposure; and attending phototherapy sessions on a routine basis. A schedule award for the skin can be paid in addition to any disfigurement award.

d. Rated impairment should reflect the total loss as evaluated for the scheduled member (i.e. arm, leg, etc.) at the time of the rating examination. There are no provisions for apportionment under the FECA. As such, schedule awards include permanent impairment resulting from conditions accepted by the OWCP as job-related as well as and any non-industrial permanent impairment present in the same scheduled member at the time of the rating examination. There it is folks in black and white…your claims examiner does not want you to know that part of the FECA act. We will discuss this in detail in part two of this two part podcast scheduled award series.

As long as the work-related injury has affected any residual usefulness, in whole or in part, of a scheduled member, a schedule award may be appropriate. Similarly, an increase in schedule award may be appropriate as long as a material change in the work-related injury is at least in part contributory to an increase in impairment of the scheduled member.

An  example of this , lets say….if you have an aggravation of left hip osteoarthritis and it is accepted as work-related but the claimant also suffers from non-industrial (aka pre-existing) left knee osteoarthritis, both of which have resulted in permanent impairment, an assessment of impairment should reflect the total loss of the left leg, to include both the industrial and non-industrial(pre-existing) injuries. How many of you have been told by your claims examiner …something different than that?

e. Adjoining Members. In general, loss of less than one digit should be computed in terms of impairment to the digit itself (thumb, finger, etc.), and loss of two or more digits should be computed in terms of impairment to the whole hand or foot. Where the residuals of an injury to a member of the body specified in the schedule extend into an adjoining area of a member also enumerated in the schedule, such as an injury of a finger into the hand, of a hand into the arm or of a foot into the leg, the schedule award should be made on the basis of the percentage loss of use of the larger member. 

Back to Chapter 2-0808 Table of Contents

6. Obtaining Medical Evidence. The Claims Examiner should review the case file to determine if medical evidence meeting the criteria in paragraph 5(b) above has been submitted. The attending physician should perform the evaluation whenever possible; however, the claimant may submit an examination from another physician if the regular attending physician does not wish to or cannot provide an impairment rating. We do these all the time for other physicians in our office by the way!

 a. The report of the impairment evaluation by a physician should provide the evidence to include the following:

(1) A detailed report that includes history of clinical presentation, physical findings, functional history, clinical studies or objective tests, analysis of those findings, and the appropriate impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was calculated.( including what part of the guides the doctor used)

(2) Impairment due to amputation is based on the level of the amputation. The physician's report must include functional history, physical examination and clinical studies. Impairment based on proximal diagnosis or range of motion may be combined with the amputation impairment. However, the physician must explain the reasoning for combining the additional impairment.

b. If the claimant has not reached MMI, but evidence establishes that there may be impairment, the CE should advise the claimant in writing that once MMI is established he/she should submit the medical evidence establishing MMI and request that the claim for the schedule award be re-reviewed.

c. Listen up….If you do not provide an impairment evaluation from a physician when requested, and there is no indication of permanent impairment in the medical evidence of file, the Claims Examiner may proceed with a formal denial of the award. If in doubt, the Claim Examiner should obtain an opinion from the DMA prior to such a denial.

d. If you do not provide an impairment evaluation from your  physician when requested, and there is an indication of permanent impairment in the medical evidence of file, the CE should refer the claimant for a second opinion evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion examination to determine if the evidence in the file is sufficient for the DMA to provide an impairment rating. So it is important that you get your MMI/ IR performed first. 

If the case is referred for a second opinion, the report should contain the information that we just finished describing. If it does not contain this information, clarification with the second opinion should be sought. 2nd opinion doctors tend to only rule on things that they are provided with. So again it is important that a thorough eval with your chosen doctor be done in advance of a second opinion doctor to give you the best chance that all of the relevant facts are submitted by your doctor to the 2nd opinion doctor. 

e. If the claimant's physician provides an impairment report, or after the second opinion is received, the case should be referred to the DMA for review. ( no futher medical evaluations are required)

f. District Medical Advisor (DMA) Review. After obtaining all necessary medical evidence, the file should be routed to the DMA for opinion concerning the nature and percentage of impairment.

(1) When referring the case to the DMA, the CE should ask the DMA to verify the calculations of the attending physician or second opinion examiner and determine the percentage of permanent impairment based on the standards outlined in the AMA Guides, Sixth Edition. The DMA should also be asked to provide the date MMI was reached. The DMA should provide rationale for the percentage of impairment specified. When more than one evaluation of the impairment is present, it is especially important for the DMA to provide such medical reasoning.

(2) The CE should review the DMA's findings and take follow-up action.

(a) If the DMA neglects to provide rationale for the percentage of impairment specified, the CE should request a clarification or a supplemental report from the DMA.

(b) If the DMA selects a retroactive MMI date (i.e. one preceding the date of the impairment evaluation), medical rationale should be provided. Usually MMI dates selected based solely on criteria such as "one year post surgery or return to full duty status" should not be considered sufficiently rationalized unless the DMA uses the findings of examination from such a date to calculate the impairment. If sufficient rationale is not present, the CE should request a supplemental report from the DMA.

(c) If the DMA believes that the impairment has not been correctly described by the claimant's physician or the second opinion examiner, the DMA should specify the missing information so that it can be requested. The response should then be routed back to the DMA for further opinion concerning impairment. If the missing information cannot be secured, a new or supplemental evaluation should be obtained.

(d) If the DMA and examining physician are in agreement as to the work-related permanent impairment, the schedule award should be processed.

(e) If the DMA provides a detailed and rationalized opinion in accordance with the AMA Guides but does not concur with the claimant's physician's impairment rating, and the claimant has been provided an opportunity to submit the necessary evidence, the CE should weigh the medical opinions to determine if a conflict exists or whether the award can be paid based on the weight of medical evidence

If there was a second opinion examination, and the DMA provides a detailed and rationalized opinion in accordance with the AMA Guides but does not concur with the second opinion doctor's impairment rating, the CE should seek clarification or a supplemental report from the second opinion examiner. After receiving clarification, the CE should refer the case back to the DMA for review.

(f) The CE should not attempt to assign a different percentage of impairment than assigned by the DMA without the benefit of further medical clarification. 

(g) If after reviewing the reports it is determined a conflict of medical opinion exists between the DMA and the claimant's physician regarding work-related impairment, the CE should refer the claimant for an independent medical examination with a referee examiner to resolve the conflict. 

g. If a case has been referred for a referee evaluation to resolve the issue of permanent impairment, it is not necessary to route the file to another DMA to review the referee calculations as long as the referee's report fully resolves the conflict and provides a thorough explanation of impairment, citing to the applicable tables and charts in the AMA Guides. If the CE feels the opinion of a DMA is necessary to clarify or verify findings of the referee examiner, a referral can be made so long as the file is not reviewed by a DMA that was a party to the conflict in medical opinion. Otherwise, the CE may process the schedule award based on the report of the referee examiner.

(1) The ECAB has held that while a DMA may review the opinion of a referee specialist in a schedule award case, the resolution of the conflict is the specialist's responsibility. The DMA cannot resolve a conflict in medical opinion. If necessary, clarification to the referee examiner may be needed. 

(2) In reviewing a referee report, the DMA should not:

(a) Resolve the conflict of medical opinion or attempt to clarify or expand the opinion of the medical referee. 

(b) Telephone the specialist for clarification or elaboration of the report, as information obtained in this manner cannot be considered probative medical evidence, and inference of bias may result. 

(c) Comment that the facts on which the opinion is based are not in the Statement of Accepted Facts (SOAF), or that the report fails to address or resolve the issue, or that the opinion is speculative. All of these assessments are the CE's responsibility.