OWCP - DOL second opinion and referee doctors tutorials - Podcast #63

Navigating a Biased Second Opinion in Workers' Compensation Claims

If you're an injured worker whose workers' compensation claim has been accepted but now faces a second opinion examination that seems prejudiced or improperly conducted, you may be at risk of losing your benefits. This guide provides practical tips and remedies to protect your rights and ensure fair treatment when a second opinion physician’s findings appear influenced by a claims examiner aiming for a predetermined outcome.

Understanding the Situation

When a second opinion physician determines that your injury is not work-related, the claims examiner may issue a Notice of Intent to Terminate Compensation. This notice typically gives you 30 days before your benefits end. The claims examiner often supports this decision with a Memorandum to the Director, outlining the reasons for denying your claim. This memorandum is a document that you never see but has a lot of prejudicial influence on the second opinion's determinations. There is a lot of these types of memorandums that hurt injured workers looking for fairness and help but instead receive a predetermined prejudiced outcome that is negotiated in these type of memorandum that often hurt the injured worker claimant. 

If the second opinion feels biased or the examination was not conducted appropriately, you have options to challenge the findings and protect your benefits. Acting quickly and strategically is critical.

Steps to Take

1. Request Key Documents

To build a strong case, you need access to the documents influencing the decision. Take these actions immediately:

• Obtain the Memorandum to the Director: Request a copy of this document from the claims examiner. It details why your claim is being denied and is essential for your treating physician to understand the basis of the denial.
• Request the Second Opinion Doctor’s Report: Ask the claims examiner to send a copy of the second opinion physician’s report to your treating physician. This ensures your doctor has the full context of the findings to address. for more information click on the transcript: 

Dr. Taylor’s contact information is: fedcompconsultants@protonmail.com 

If you need a medical provider or assistance with an OWCP /  DOL claim in Tamps, Pensacola Florida. south Mississippi or Daphne Alabama    you can make an appointment to see Dr. Taylor, or Dr. Sullivan   at the clinic at  FWC Medical Centers. To make a consultation with Dr. Taylor  call the clinic at 813-215-4356 or go  to our website at  https://fedcompconsultants.com/

FEEDSPOT TOP 10 National Workers Compensation Podcast:

https://podcast.feedspot.com/workers_compensation_podcasts/?feedid=5557942&_src=f2_featured_email

Transcript

Welcome to Federal Workers Compensation Coffee break Podcast. I am your host Dr. Taylor. I am an OWCP consultant who has been assisting and working with clients for over 30 years in the work comp arena. Here at this podcast we discuss all sorts of topics related to federal workers compensation, Department of Labor, OWCP, FECA ACT, FERS, longshore-maritime, DOD contractors, VA benefits. I cover these relevant topics in a short coffee break style format because we like to discuss topics that are related to helping you the government employee with filing your claim, understanding your rights and responsibilities, relevant rules and provisions. I also like to cover topics that people are always wanting information on to help you successfully navigate the convoluted waters of federal claim filing. I do this to assist you, you and your doctor or your coworkers with claim filing denials or with appropriate filing of benefit claims, disability or injured worker claims. Let's get started on ….Referee and SECOP Doctors

In the course of your claim for an additional diagnosis expansion, surgical approval and/or Scheduled Awards,  OWCP may send you to a SECOP (a second opinion physician) or for a Referee Examination by a Referee Physician. 

Navigating a Biased Second Opinion in Workers' Compensation Claims

If you're an injured worker whose workers' compensation claim has been accepted but now faces a second opinion examination that seems prejudiced or improperly conducted, you may be at risk of losing your benefits. This guide provides practical tips and remedies to protect your rights and ensure fair treatment when a second opinion physician’s findings appear influenced by a claims examiner aiming for a predetermined outcome.

Understanding the Situation

When a second opinion physician determines that your injury is not work-related, the claims examiner may issue a Notice of Intent to Terminate Compensation. This notice typically gives you 30 days before your benefits end. The claims examiner often supports this decision with a Memorandum to the Director, outlining the reasons for denying your claim. This memorandum is a document that you never see but has a lot of prejudicial influence on the second opinion's  determinations. There is a lot of these types of memorandums that hurt injured workers looking for fairness and help but instead receive a predetermined prejudiced outcome that is negotiated in these type of memorandum that often hurt the injured worker claimant. 

If the second opinion feels biased or the examination was not conducted appropriately, you have options to challenge the findings and protect your benefits. Acting quickly and strategically is critical.

Steps to Take

1. Request Key Documents

To build a strong case, you need access to the documents influencing the decision. Take these actions immediately:

Obtain the Memorandum to the Director: Request a copy of this document from the claims examiner. It details why your claim is being denied and is essential for your treating physician to understand the basis of the denial.

Request the Second Opinion Doctor’s Report: Ask the claims examiner to send a copy of the second opinion physician’s report to your treating physician. This ensures your doctor has the full context of the findings to address.

Tip: Submit these requests in writing (email or certified mail) to create a paper trail. Keep copies of all correspondence.

2. Engage Your Treating Physician

Your treating physician is a key ally in challenging a biased second opinion. 

Provide them with:

A copy of the Memorandum to the Director.

The second opinion physician’s report (once received).

Ask your treating physician to review these documents and write a rebuttal report if they disagree with the second opinion. The rebuttal should:

Address specific inaccuracies or biases in the second opinion report.

Provide medical evidence supporting the work-related nature of your injury.

Explain why the second opinion examination may have been flawed (e.g., inadequate examination time, failure to consider your medical history, or signs of prejudice).

Deadline: The rebuttal must be submitted to the Office of Workers' Compensation Programs (OWCP) within 30 days from the date of the Notice of Intent to Terminate Compensation.

3. Trigger a Conflict of Medical Opinion

If your treating physician’s rebuttal contradicts the second opinion, OWCP will recognize a conflict of expert medical opinion. This conflict typically leads to the appointment of a referee physician—a neutral third doctor who conducts an independent examination. The referee physician’s findings carry significant weight and can help restore your benefits if they support your claim.

Note: Without a rebuttal from your treating physician, the claims examiner may deny your claim outright, and you may not get the chance to see a referee physician. This could result in the immediate termination of your benefits.

4. Document the Second Opinion Examination

If you suspect the second opinion physician was biased or the examination was inadequate, document your experience in detail. This can strengthen your case. Note:

Examination Details: How long did the exam last? Did the doctor ask relevant questions about your injury or work history? Did they perform a thorough physical examination?

Signs of Bias: Did the doctor make dismissive comments about your injury or workers’ compensation claims in general? Did they seem to rush the exam or rely heavily on the claims examiner’s input?

Interaction with the Claims Examiner: If you have evidence (e.g., correspondence) suggesting the claims examiner influenced the doctor’s findings, preserve it.

Share these observations with your treating physician and, if applicable, your attorney or union representative. They can help frame the rebuttal or appeal.

5. Consider Legal or Union Support

If the process feels overwhelming or you suspect systemic bias, seek assistance from:

A Workers’ Compensation Attorney: An experienced attorney can guide you through the process, ensure deadlines are met, and represent you in appeals if your claim is denied.

Union Representative: If you’re part of a union, your representative can advocate on your behalf and provide resources to challenge the decision.

Employee Advocacy Groups: Organizations like the Injured Workers’ Law & Advocacy Group may offer free advice or resources.

6. File an Appeal if Necessary

If your benefits are terminated without a referee physician examination (e.g., because no rebuttal was submitted), you can appeal the decision. OWCP typically provides instructions for filing an appeal in the denial letter. Appeals may involve:

Requesting a hearing before an OWCP hearing representative.

Submitting additional medical evidence to support your claim.

Requesting a review of the written record.

Tip: Appeals have strict deadlines, often 30 days from the denial date. Act promptly and consult a professional if needed.

Additional Tips

Stay Proactive: Monitor all correspondence from OWCP and the claims examiner. Missing a deadline can jeopardize your benefits.

Keep Records: Maintain a file of all medical reports, letters, emails, and notes from doctor visits or examinations.

Communicate Clearly: When requesting documents or submitting a rebuttal, be concise and professional. Reference your claim number and the specific issue (e.g., “Requesting second opinion report for claim #12345”).

Know Your Rights: Under federal workers’ compensation law (FECA), you’re entitled to a fair and impartial evaluation. If you believe the second opinion was influenced by the claims examiner, you can raise this issue in your rebuttal or appeal.

What to Avoid

Don’t Ignore the Notice: Failing to act within the 30-day window can lead to benefit termination without further review.

Don’t Rely Solely on Verbal Communication: Always follow up requests or agreements in writing to ensure accountability.

Don’t Assume Bias Without Evidence: While bias is possible, focus on documenting specific issues with the examination or report to build a credible case.

Adverse Second opinion evaluations Attorneys tell me they recommend:

1. On the very day notice of a scheduled second opinion exam is received, request of your claims examiner a copy of the Statement of Accepted Facts and the list of Questions for the Second Opinion Physician be sent to you. This request can be done by telephone, fax or mail. Prudent people often use all three forms, and send all mail Certified (return receipt requested.) 2. On the very day you receive a notice of intent to terminate benefits, contact your claims examiner and request that your treating physician be provided a copy of the second opinion report, and of the Memorandum to the Director (if you do not already have the Memorandum).

3. Talk to your M D. Ask if doc disagrees with the second opinion report, and would doc be willing to write a report noting any difference of medical opinion. Can the report be done within, say, 25 days? Gently remind doc that OWCP will pay for the report. The doctor should charge the usual fee for such a report; whatever the doc normally charges is a good idea.

4. You can help your doctor by reading every sentence in the second opinion report, and writing down every error you can spot. Errors of fact are particularly helpful. The doctor should be able to find all the errors of medical knowledge, conclusion and rationale.

5. Remind your doctor that most second opinion reports contain minimal or zero discussion of medical rationale. The treating physician produces a stronger report if that fact is mentioned, and the treating doc has a strong medical rational in his or her own report.

In this situation, a discussion of medical rational would be a separate paragraph or two, and would bring out events of the employee's history, and mention how these events of history have caused or contributed to each of the following: the person's symptoms, diagnosed condition and state of being disabled.

Tell your physician that you are aware that such a report requires more writing than the usual clinical report, but that a discussion of medical rationale would certainly help you.

Refuting Adverse Secop

One way to have an adverse second opinion physician report nullified is to request your physician to prepare a report on your condition. In this report there could be a section titled "Review of medical records." In this review your doc can write about any disagreements with the report of the second opinion. This could include specific areas of disagreement about diagnosis and relationship of the condition to your work.

Referee Doctor

5 USC 8123 does state that disagreement between a government appointed doctor and a treating doctor needs to be resolved by the appointment of a third doctor "who shall make an examination." This statute used to contain the words "any disagreement", but clearly those words are not present currently.

OWCP views referee examinations as costly and timely so they get around these by weighing the medical evidence and then determines, at least most of the time, that the government's doctor's opinion weighs more than the treating doctor's opinion. When that happens (and it happens more often than not) then there is no substantive disagreement and no need for a third doctor to be appointed.

Even though this is the case, if there is a disagreement and OWCP foes with its doctor, one should always argue on appeal that the disagreement remains unresolved and that OWCP erred in not invoking the provisions of 8123 by failing to appoint a third doctor. If you do not argue this point on appeal, it will be lost and you might not be able to bring it up in the future.

Was Your Referee Doctor  Impartial?
Under the Federal Employee Compensation Act (FECA), an injured worker has the absolute right to select any treating doctor and OWCP similarly may select its own doctor for any reasonable purpose. If a conflict in the medical opinions is created between the claimant’s treating doctor and a doctor appointed by the government, according to law, the Secretary of Labor shall appoint a third doctor, commonly referred to as a referee. The appointment of the referee doctor is made so that the conflicting medical opinions may be resolved. However, not every difference of opinion necessitates the appointment of a referee. OWCP decides if a “true” conflict exists and then sets into motion the process of appointment. In order for a referee to be appointed, the conflicting medical reports must be of virtually equal weight. Probably due in large part to expense, OWCP in general disfavors findings of conflicts and believes that most medical evidence can be resolved without resorting to a referee. Once a referee is appointed and an examination is conducted, whatever the referee’s decision is, it is entitled to “special weight” if it is based upon an accurate medical history and factual background and if the referee was selected according to law. Only then is the opinion of the referee sufficient to break the tie.

Because a referee’s decision is supposed to be fair and impartial, OWCP is strictly controlled by extensive regulations on how a selection of a referee is accomplished. The Employee Compensation Appeals Board (Board) places great importance on the appearance as well as the fact of impartially and therefore only if the selection procedures which were designed to achieve this result are scrupulously followed may the selected doctor’s opinion carry “special weight”. For instance, OWCP cannot select doctors who may give the appearance of having bias. Therefore, doctors who are employed by or associated with federal agencies (i.e. doctors who perform regular fitness for duty examinations for the USPS), must be excluded. To assure that selected doctors are aware of these regulatory restrictions, OWCP has adopted language to be inserted into introductory letters when a claimant is referred for an impartial examination: ”Because this examination is being requested in accordance with a statutory provision for resolving a conflict in medical opinion, it is important that the physician have no previous connection with the claimant, and no regular association with the claimant's employing agency. If you, or a member of your professional firm, have previously attended this patient, or regularly performed fitness- for-duty examinations for the patient's employer ... please call [the Office] so that other arrangements can be made for the impartial examination."

In one case the Board found that if a physician did not perform more than 3 to 4 fitness for duty examinations per year, that doctor would be able to serve as a referee. Presumably, anymore than four examinations in a given year would disqualify a doctor. Doctors who have had any previous connection with the claimant (i.e. doctors who have previously treated or examined a claimant) are also disqualified. The same is true for doctors who have consulted with OWCP under contract.

In order to assure impartially, qualified doctors are selected randomly in sequential order by a computer program  using a claimant’s zip code. This zip code is entered into the software and a cluster of qualified doctors is produced. OWCP starts with the first five in the cluster. That doctor is called and asked if he will perform the examination. If the first doctor accepts the appointment then that doctor is chosen. If the doctor declines, then the second doctor is called. Only doctors who are board certified in their respective field of expertise are eligible to act as referees. If OWCP initially selects a doctor who exhibits one of the above bias, a claimant may be allowed to participate in the selection of another referee by filing a written after the initial appointment. There are two instances when the Office will allow a claimant to participate. There must be a specific request to participate and a valid reason must be provided or when there is a valid objection to the doctor selected by the Office.  If OWCP agrees with the claimant’s objection regarding the selected referee, a list of three other referees will be prepared and the claimant may choose any one of the three.

The Office is not permitted to ask leading questions or have oral communication  involving any disputed issues with the impartial doctor.

A good example of what constitutes a leading question can be found in the case of Vernon E. Gaskins, 39 ECAB 746 (1988). The Office’s medical advisor responded to a report of an impartial doctor and in so doing, suggested an different conclusion and in the process, insulted the Board.

Of course, there are a variety of ways that OWCP can effectively circumvent the random selection process of a referee. Review of recent case files reveal that OWCP only has documented the files with the referee chosen to perform the examination, not all of the referees that the computer program has selected. With only this evidence, there is no way to actually determine if more than one doctor was considered for selection. There is also a technique in the computer program, which allows OWCP to “bypass” any doctor that is selected. OWCP does not inform the claimant or the bypassed doctor that this has occurred. This “bypass” technique is clearly a means to disrupt the random selection process. When a bypass occurs, OWCP is instructed to enter a “bypass” code, which would indicate the reason for the “bypass”. However, one recent case file reviewed involving the selection of a referee, did definitely involve a “bypass” without a “bypass” code being used.

If a claimant has a duly appointed representative, the law states that both the claimant and the representative must receive notice of the referee appointment. If the claimant receives notice and the representative does not, the report of the referee cannot be used if it is adverse to the claimant Of course, if notice is not given to the representative and the referee’s report is favorable, there is no need to raise an objection to the report.

The selection of a truly impartial referee is a complex process. It is difficult for a claimant to adequately determine if a referee was correctly chosen. Hopefully the information here will assist a claimant to recognize if the selection procedure was properly followed. A referee’s report is entitled to “special weight” and acts as a tiebreaker, only if OWCP acts in accordance with the law.

OWCP Doctor Shopping

OWCP is not allowed to "doctor shop". In some cases OWCP may be suspected of doctor shopping in order to locate a physician who will supply a ruling in their favor. There have been ECAB rulings on this issue. The case on doctor shopping is listed in ECAB rulings and it is called “ Carlton Owens, 36 ECAB 608 (1985)”

Burden of Proof - Inferences and Presumptions

Where an employee claims that a condition not accepted or approved by the Office was due to an employment injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury. Jaja K. Asaramo, 55 ECAB ___ (Docket No. 03-1327, issued January 5, 2004).

The Office may not terminate compensation without establishing that the disability ceased or that it was no longer related to the employment. The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background. Jaja K. Asaramo, 55 ECAB - (Docket No. 03-1327, issued January 5, 2004).

Conclusion

Facing a biased second opinion in a workers’ compensation claim can be daunting, but you have tools to fight back. By securing critical documents, engaging your treating physician, and acting within the 30-day window, you can challenge an unfair decision and potentially secure a referee physician examination. If needed, seek legal or union support to navigate the process. Stay informed, proactive, and persistent to protect your rights and maintain your benefits.

For more resources, visit the U.S. Department of Labor’s OWCP website or consult a workers’ compensation professional.

Well that does it for this episode of Federal Workers Comp Coffee break 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 and in Jacksonville. To make a consult with me to discuss your case or if you know someone in Florida who is recently injured you can call the clinic at 850-792-6125. Also, if you are in another state and you want me to assist you with claim questions or assistance for your doctor you can email me at fedcompconsultants@protonmail.com Be sure and like, subscribe or leave me a review on the podcast platform that you found me on, so other s can find help with these episodes. 

I need to warm up this coffee and get going. As usual I want to thank all of you who put on that uniform, that badge, deliver that mail, take care of our veterans and make this government run… a big thank you. I do this for free just for you…We could not do this without all of the work all of you out there do…so a big thank you. And remember if you have an injured federal claim and you need assistance….I am here to help!

C-ya next time of to get my coffee warmed up. Keep sending those emails and questions and comments. I appreciate hearing from all of you.