Archive for November, 2009

Trust Your Injury Compensation Specialist?

Tuesday, November 3rd, 2009 by

The Employing Agency (EA) rightfully has an obligation to controvert the claim where there is a dispute as to the stated facts. They are to assign all claims to an Injury Compensation Specialistindividual that I will refer to in this article as the EA’s workers compensation (wc) specialist. That person has a responsibility to gather all facts and circumstance about the claim and to conduct a thorough investigation whenever circumstances are suspicious.

His or her file typically contains witness statements that are closely checked to see if the various statements are consistent. The specialist may choose to inquire as to if the employee was previously expressing any fear of job security or opinion that he was not being permitted to work in a particular job or environment. He collects pictures, time sheets, and creates a report of the circumstances surrounding the injury incident. These can include the employee’s existing leave balance, his prior injury claims, performance problems, grievances or EEO complaints.

The EA’s wc specialist is trained to watch for some obvious concerns:

(a) Was the employee terminated from his job and then claimed he was injured at work?

(b) Was the claimed injury really caused by a work related activity? For example:

1. If the injury occurred off the employing agency’s premises, was he engaged in official “off-premises” duties?

2. Was the injury caused by the employee’s willful misconduct, intent to bring about injury or death to self or another person, or intoxication?

(c) What amount of time transpired between the time the injury was allegedly caused and the employee’s report of injury (a delay in reporting is suspicious)?

The EA has a responsibility to monitor the worker’s medical progress and duty status by obtaining periodic medical reports (CA-17). The EA’s wc specialist typically obtains the employee’s authorization to obtain medical records. If the employee refuses to supply the medical records authorization, he can typically get the OWCP to get one, because the EA’s wc specialist has a legitimate interest in making sure that the injury wasn’t really a pre-existing condition. He then checks over the medical records very carefully to determine if there was any pre-existing condition. He also checks to see if physical complaints during subsequent medical care are consistent with the initial complaints, or simply relate back to employee’s condition prior to the claimed injury date.

The EA’s wc specialist is not to have telephone conversations with the employee’s physician. He is allowed to correspond in writing with the employee’s physician concerning the work limitations and restrictions imposed. He is required to send a copy of such letters and answers to the OWCP. In order to stay advised, the employee should ask the doctor to be sure to provide him with copies of any correspondence of this nature.

If the EA’s wc specialist believes the disability claim will extend beyond the 45 day COP period or if surgery is suggested, he or she will seek the assistance of an RN to assist in the evaluation of the claim. This nurse is often used to interpret medical jargon and verify medical necessity. For example, he or she typically communicates directly with the employee’s primary treating physician, seeking to know when the employee can return to work or if the injured employee has returned to the condition he was in (although it may have been poor) prior to the work incident.

The EA has the legal right to require the employee to submit to a medical examination conducted by a doctor selected by the EA to obtain an opinion regarding the employee’s condition 5 CFR 339.301(c). This report often serves as material to controvert the employee’s claims. The subject of competing medical examinations is too extensive to cover in this article.

If the EA’s wc specialist believes that the claim is improper, he or she can file an objection to pay with the OWCP. COP generally continues unless the OWCP claim examiner agrees that the evidence is clear. Under 5 U.S.C. 5584, if the OWCP later agrees that the COP shouldn’t have been paid, the payments, at the employee’s option, are charged back to annual sick leave or LWOP (overpayment of pay) and reimbursement is required.

Part of the EA’s wc specialist job is to assist the employee in returning to work as soon as possible 5 U.S.C. 8106. He should work with the employee’s supervisor to see if any accommodation work is available. In those situations where an agency has advised the employee of its willingness to accommodate the employee’s work limitations and restrictions, the employee is required to advise his attending physician and request the physician to specify the limitations and restrictions imposed by the injury. The employee has the responsibility to advise the employing agency immediately of the limitations and restrictions imposed.

Whenever the medical report “Duty Status Report” Form CA-17 indicates that the employee can return to work (either in an accommodated basis or not), the agency advises the employee in writing of his or her obligation to return to work as soon as possible. If an employee refuses an offer of suitable work, his entitlement to COP (as well as his right to regular workers compensation benefits) ceases as of the effective date of availability of such work.

The employee can file grievances with regards to mistakes or misconduct by the EA and its wc specialist but no grievances are allowed for decisions made by the OWCP (such as acceptance of the claim as work-related or medical suitability of a limited-duty job offer).

Disputes regarding the employee’s return to work and reasonable accommodation are controlled by the OWCP. These disputes are often mistakenly thought by employees to be the basis for asserting an EEO claim. The topic is too large to address in this article about COP.

Finally, if the employee believes that his disability will last more than 45 days, he should be entitled to regular workers’ compensation and be sure to complete and have the employer submit a Form CA-7 to the OWCP as soon as possible before the 40th day of COP.

- Brad Harris, Attorney