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.
I am a Letter Carrier for the USPS who underwent a total right knee replacement in 2015. CA-2 claim initially denied. (Causation not rationalized) My appeal was upheld and as you mention, was remanded back to OWCP.
DOL contacted the surgeon who preformed my knee replacement requesting he rationalize the fifth element, Causation, he did not respond to their request. I was then instructed to obtain a second opinion from their Doctor. This visit took place six months ago in June. I have requested a copy of the report from this Doctor, yet to receive. Lastly, I contacted the DOL/OWCP claim manager, she told me a final decision would be soon forthcoming. What do you think my chances of a win are?
Great article, very enlightening. Thank you.
I was an OWCP Examiner fo approximately eight years, ending in 2005. My training stressed the importance of the claims adjudication process being impartial and non-adversarial – which greatly impressed me. However, by 2001, I saw changes being made – in short – measures to cut Program costs over time, particularly by reducing disability days. A factor measuring that was ultimately incorporated in our performance standards. I spoke out about that, and other matters impacting proper adjudication – and became persona non grata with management over the next few years – with great stress developing from the increasingly hostile work environment – and concerns over FAIRLY meeting the performance standards.
I must admit I do not know if the disability days standard is still an evaluation factor, or if other less official practices I found unfair to Claimants continued past about 2010 or so, when the few co-workers I had strong respect for had either retired on gone on to other positions.
I was just trying to explain some of these almost insurmountable problems I’ve had with OWCP, including claims examiners (at the beginning, when I knew zip about it) who deliberately falsified my SOAFs for secops, a claims examiner who out of several was the most antagonistic person & obviously “out to get me” I’ve dealt with, choosing a secop doctor (the same one a *second* time) b/c he gave the same report for *everybody* (and don’t mind sharing his name – Alexander Doman in Atlanta), on & on & on & on. They are *the* most adversarial system ever, & keep getting worse all the time. Refusing to answer my multiple F.O.I.A. requests & my own growing weariness (exhaustion) with a herniated disc & complex regional pain syndrome in the arm, led to my back claim being closed. Nobody would ever “want” to be an injured worker, & nobody in his/her right mind would ever get away with “faking” an injury under this system, which so successfully uses cuts of 1000 tiny knives to whittle away your rights. I was a USPS rural mail carrier in Oregon when injured, & continuing to work while injured (i.e., returned to work) only exacerbated my back, yet that’s the claim they managed to cheat me out of first. I’m *still* considered an employee, & honestly don’t know why I haven’t been separated, but they’ve now managed to cut the benefits for the CRPS to more than half. I’m so tired.
I’m sorry. Your experience unfortunately is not unique.
I had a hearing in 9/2022-to date: 4/2023 still no decision…I have called/spoken w/OWCP CE and CE Supervisor-who stressed that I should not be calling to ask them about outcome since it’s in the hands of hearing representative…7 months!?! Who can I address this with? TIA I don’t know where to go from here.
That’s tough. Yes, the claims examiner doesn’t have control. You may want to contact your local congressperson/senator and ask them to look into it. There aren’t a lot of great options.
How can I get salary information for comparable employees, or official documentation to substantiate that these are similar employees?
I need documentary evidence.
*In computing compensation, the Office’s procedures state that evidence submitted by an employing establishment on the basis of its records will prevail over the assertions of the claimant unless such assertions are supported by documentary evidence. *
Which types of employees are you trying to compare?