Oct 30

Is FECA a non-adversarial system?

Under the law, FECA is supposed to be a non-adversarial system. OWCP acknowledges this philosophy. The OWCP website states:

“Disputes under the FECA are resolved through informal conferences or formal reconsideration at the district office level, through administrative hearing, or review by the independent Employees’ Compensation Appeals Board whose decision is final. Thus employers avoid high legal costs and time-consuming litigation.”

I believe that by its very nature, OWCP was destined to be anything but non-adversarial. When the same organization judges claims and delivers money within a budget based upon its own decisions, there is bound to be a conflict of interest.

Furthermore, there is no incentive in the system to prevent a claims examiner, hearing representative or appeals judge from ignoring a claimant’s arguments or not following the law. If anything, if a claims examiner consistently denies a claim, the claimant may go away and save the system money. Another result of the initial denials is that the claimant may eventually win their case years down the line, however this is still a win for OWCP and a loss for the claimant because even if the government had no merit in their defense, the employee does not get any interest or special award and they may have attorney fees to pay.

Our office has seen all kinds of games that OWCP has played that has further made this an adversarial system. One that affects our office specifically along with injured employees is how difficult is is to be an attorney representing injured federal employees. The rules on attorney fees are very regulated and much more stringent than most other types of law. OWCP explains that the reason that they are doing this is to ‘protect’ injured employees, however the actual consequence is that it limits the amount of attorneys willing to help out federal employees and bans attorneys from taking contingency fees, something that negatively affects almost every federal employee looking for legal assistance. I have heard from too many injured federal employees that there are no legal representatives willing to help them in their own state and even more who cannot afford to pay an attorney out of pocket for help. From what I can tell, OWCP doesn’t believe that these employees need representation since it sticks with its philosophy that it is a non-adversarial system (why would you need an attorney if we’re all in this together).

I have seen clients sent to second opinion doctors (doctors repeatedly paid from OWCP) that don’t bother to examine clients but merely state that the client was not injured from their work. As these doctors are repeatedly paid by OWCP, they have every incentive to tow the line and deny as many claims that they can get away with. Furthermore, when there is a dispute between a primary treating physician I have not seen, nor any attorney in this field that I’ve spoken to has ever seen a claimant’s primary treating physician medical report viewed as better or ‘more rationalized’ than the second opinion examiner. We have collectively seen tens of thousands situations where OWCP’s doctor report was more medically rationalized.

Finally, the last line line of defense, the Employee Compensation Appeals Board (ECAB) is supposed to do a de novo review of the entire case. Too often this doesn’t happen, or even address a claimant’s arguments. Even when ECAB agrees with a claimant, it is rare to non-existent when they will directly award benefits (as is their right). At best ECAB tends to remand cases back to OWCP,  which results in further delays. This is often after waiting nearly a year before a decision is made.

The idea behind a workers compensation system is to make the system easier to navigate for injured employees while at the same time help the employer avoid the cost of litigation. This is a reasonable philosophy and would make more sense under a more independent system where there is less of an incentive to deny claims. In the future, I plan on posting an article about potential solutions to these current issues for injured federal employees.

 

 

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