Initial Acceptance- first of all if your claim is initially accepted congratulations you just came a unicorn… because in recent years especially …I find nearly 100% of all claims are denied. OWCP stats demonstrate over the last 10 years initial claim acceptance is 3%... that means 97% of all claims are denied! WOW
| •When the Office of Workers’ Compensation Programs (OWCP) has determined that there is sufficient factual and medical evidence to accept the claim, a formal decision is issued which explains which conditions were accepted as arising out of the claimed factors.
•Where medical evidence establishes that a pre-existing condition was aggravated, an aggravation should be accepted, not the underlying condition itself.
•Whether the claim is a Traumatic Injury or an Occupational Disease, the same criteria need to established.
•In Traumatic Injury cases with resulting disability, continuation of pay (COP) should be authorized unless one of the nine reasons to controvert COP have been established.
•In either type of case, with resulting disability, the claimant should be notified of placement into disability management (QCM) and the purpose of the QCM program.
Additional Conditions:
•If either the physician or claimant indicate that the accepted conditions require expansion or modification, OWCP should request a detailed explanation as to how the additional conditions are related to the original injury or resulting residuals.
•Claims for consequential conditions should be referred to the District Medical Advisor for review ( not to the claims examiner)
Initial Denial ---Burden of Proof:
•The claimant has the burden to establish the components of his/her claim.
•However, the Office of Workers’ Compensation Programs (OWCP) is not a disinterested arbiter.
•Thus OWCP shares in the responsibility to establish the claim if prima facie evidence has been established. ( I know that is what the DFEC procedure manual says but the level of attempts to share in this responsibility is simply astounding in my experience.
OK…SO…If OWCP denies your initial claim, a formal denial will be issued. Now this is the tricky part. You need to make contact with your claims examiner ASAP. Get an ECOMP account opened ASAP. Many claims examiners will denial a claim and then you do not know about the denial or have not received any denial in the mail but the claims examiner will put it in ECOMP and the injured worker does not know it is there for weeks or months and there are deadlines in the initial denial paperwork that you need to aware of.
The DENIAL decision will contain the following:
•describe the nature of the injury;
•summarize the evidence initially submitted with the claim and provide an explanation as to why it was deficient;
•summarize what was requested upon development;
•describe all evidence received after development; and
•explain why the evidence is insufficient to support the claim.
•A denial decision should describe which of the five basic elements have or have not been met, the specific element upon which the claim is being denied, and a clear discussion of the necessary evidence to support the claim. (remember if you receive a denial and it list one of the five basic elements as having not been satisfied go back and listen to podcast # 11 & 16 for assistance with your denial response.
•Formal denials must always include appeal rights! These appeal rights are usually listed on the last page of the denial letter and require you to sign and date that appeals page and return it to your claims examiner by the deadlines that are assigned to the type of appeal you choose. (more about that later …lets continue)
•Someone unfamiliar with the case should be able to read the decision, and understand how the claimant was injured, what was claimed, what evidence was submitted with the claim, and why it was insufficient to accept the claim.
Reasons Why OWCP Denied Your Claim
One of the most common reasons that OWCP denies claims is the claimant not having been able to satisfy the burden of proof with regard to injuries, often gleaned from your medical records. There must be causation between your injuries and a work event that caused them. In particular, your doctor must clearly show causation via an objective narrative that goes into detail regarding what tasks you were carrying out at the time of your sustaining your injuries.
You are typically granted three types of appeals:
Oral Hearing for OWCP Denials
You may choose to go for an oral hearing which is typically carried out in the presence of a Hearing Representative who will usually come from outside the District Office that you received the denial because this maintains a sense of impartiality and neutrality. The oral hearing is a one-time thing, meaning that you cannot come back and appeal once this process is done.
OWCP Request for Reconsideration
If you choose to file a request for reconsideration, you will have to present new and compelling evidence as to why your injuries are compensable. You will need to submit this appeal within a year of receipt of the denial, (remember I told you each of these type of appeals have specific expiration dates. Request for reconsideration will be handled by officers in the same District Office that rejected your compensation claim as an injured federal worker.
In my experience, once you're thrown into the OWCP appeals process, you're going to be on what feels like a merry go round of denials ...know matter how good your new evidence may be. Claims Examiner's have the discretion to make changes, but generally won't.
Your hearing will be conducted by a hearing officer from the Branch of Hearings and Reviews, not your Claims Examiner.
Requests for reconsideration cannot be filed just because the you disagree with the OWCP's denial decision. Instead, you must be able to provide new information or new arguments. Reconsideration requests typically are denied if they simply re-argue the same case. However, you can get your case reconsidered if you present new information or have a new legal arguments that apply to the case.
Provide New Evidence
Requests for reconsideration will also be considered if the claimant provides new evidence that was not included with the original claim. For example say... a new witness to the accident comes forward, for example, his statements could be included as the basis for reconsideration if they provide new evidence not considered in the earlier decision. Another example of new evidence would be a new medical report that provides new medical justifications, explanation or additional reasons for the injury… these are just some of the examples of new evidence that could be considered as the basis for a request for reconsideration.
The most important thing to remember when you get a denial letter is to sign it and meet the Deadline and Include the Right Details of evidence that OWCP is requesting.
YOU must submit you reconsideration request no later than one year after the date of the decision that your are contesting, regardless of the date of injury. The request must be in writing and signed and dated by the you the claimant or your attorney or representative. Along with the new evidence or arguments, the request must include the original decision and identify the specific issues for which the you the claimant requests reconsideration. Requests do not have to be on any special form, and the request does not have to use the word "reconsideration."
Decision on Reconsideration ---it is important to note that..
A reconsideration request is assigned to a senior claims examiner who was not previously involved in the case. If the request is granted, the senior claims examiner notifies the employing agency, which has 20 days to respond to new legal arguments or facts. Then you the claimant now have 20 days to respond to the employing agency's comments. Medical evidence, however, is not given to the employing agency for response. The senior claims examiner then issues a new decision independent of the previously issued decision.
OK in review… let’s go over the three forms of appeals that you can ask for when one’s OWCP federal workers compensation case is denied.
1. Oral Hearings or Review of the Written Record
The provision for this appeal is found under 5USC.8128 (a) which states: “Before review (reconsideration). A claimant not satisfied with a decision of the Secretary of Labor (OWCP) is entitled, on request made within thirty days after the date of the issuance of the decision, to a hearing on his claim before a representative of the Secretary.” An oral hearing or review of the written record is not permitted if the employee has previously been granted reconsideration. In other words, an oral hearing or review of the written record can precede, but not follow, reconsideration by OWCP.
Telephonic Oral Hearings
OWCP Oral Hearings can now be conducted telephonically saving you the trouble and cost of attending your OWCP Oral Hearing in person. Federal Workers Compensation Consultants, attorneys or you the claimant can be used to represent your hearing presentation during your OWCP Oral Hearing via telephone conference call.
2. Reconsiderations [also under 5USC 8128 (a)]
A request for Reconsideration must be made in writing within one year of the last merit decision of record. The Reconsideration asks the Secretary of Labor (OWCP) to review legal arguments not previously made, or to examine new evidence which is also substantial in nature, such as:
(A) A statement of a reliable witness not previously submitted which supports the employee’s claim that an accident occurred during the performance of duty.
(B) A new medical report which provides medical rationale that is not contained in a previous medical report. (Note: An employee may be represented by any responsible individual before or at an OWCP Hearing. This individual can be a friend, an attorney, or an OWCP Consultant.)
3. ECAB… so what is ECAB…a very common question…
The ECAB is an appellate body in the Department of Labor separate and apart from OWCP. Decisions are issued by a three-member panel, each member which is appointed by the Secretary of Labor. The ECAB Appeal must be made within 180 days of the OWCP decision. This Appeal can be after a decision of an OWCP hearing representative, and for an OWCP decision from an Oral Hearing as review of the written record, or following a decision on a Motion for Reconsideration.
No new evidence can be submitted at this Appeal. ( very important thing to remember) Only the evidence of record at the time of Appeal is considered. After a decision is ordered, one can file for Reconsideration within one year of a decision rendered at ECAB by submitting either new medical evidence or new legal argument. So you choose this one mostly when your initial evidence is well done and satisfies all of the OWCP denials with ample evidence from the very start.
So, that is a lot of information…. This is definitely not a simple one step process. This podcast is an introduction into the basic understandings of what to do. You can reach out to me anytime with questions and or feel free to make an appointment for a nexus report.
Well that does it for this episode of Federal Workers Comp Coffeebreak Podcast.
I want to thank you for listening and want to remind you to share this podcast with other federal workers you think would benefit from this information. Also if you need an approved medical provider for your DOL -OWCP Or Longshore case in Florida you can find me in Tampa at two different locations and in Jacksonville. To make a consult with me to discuss your case or if you know someone if Florida who is recently injured you can call the clinic at 813-877-6900.
Hearings and Reviews of the Written Record
http://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECA-PT2.pdf
OWCP Oral Hearings - Revised
http://pages.prodigy.net/steveburt/oralhear.htm
Appeal Rights
http://www.nalc.org/depart/owcp/PDF/comp2003.pdf