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Federal Workers' Compensation

The Office of Workers' Compensation Programs administers four major disability compensation programs which provide wage replacement benefits, medical treatment, vocational rehabilitation and other benefits to certain workers or their dependents who experience work-related injury or occupational disease.

Here is a forum for members to share and exchange experiences regarding to workers' compensation related issues.


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diannedawn  
#1 Posted : Saturday, February 23, 2019 8:30:19 AM(UTC)

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Thanks in advance for taking the time to read this... I am trying to decide which type of appeal to file.

I filed for schedule awards for both of my knees last April..they paid one claim last August.

The other claim, they wanted a second opinion, but it took until in late August for them to actually schedule it. 9/11 I went. The second opinion doc did not agree with some of my doc’s reasoning, but still he ended up rating my knee HIGHER than my doc! My doc said 16% due to ligament laxity, their doc said 20% due to arthritis.

The CE finally resubmitted the file to the DMA on 11/29...They insisted up until 2/5 that the DMA had never made his decision. (I even wrote a letter to Polcyn complaining about the lack of accountability etc. How can it possibly take over 2 months?)

Finally the week after, I got a Notice of Decision, dated 2/6. They are saying there is no award payable because I already collected a 10% award for that knee. In the DMA’s report he disagreed with the second opinion doc because that doc’s rating was based on a 2mm joint space interval and the DMA said there was no evidence of that. He rated my knee at 10% of course!

My old xray reports just use pretty vague language... like “moderate” and “moderate to advanced” joint space narrowing. My second opinion doc had access to my xrays....I think the DMA just read the imaging reports. Not sure if he even had both of them, as one seems to be missing in my file.

Anyway...the DMA said in his report that he “may change” his rating if there is an xray “stating a 2mm joint space”.
Of course I went straight to my doc and had a new set of xrays where the doc specifically requested that the xray report specify the AMOUNT of joint space narrowing. The result came back as 2mm.

I had already sent the CE and the supervisor for my claim a letter about their failing to follow procedure. Told them I believed they were premature in making this Decision and they should have sent me to a referee doc. I read on Jesse’s blog about how there can not be a disagreement between the DMA and their doc and how they should have contacted the second opinion doc for clarification etc. Obviously they never did this because looking at my actual (old) xrays you can clearly see the narrowing. I am sure he would have worked this out with them if they had bothered to contact him. The Decision was mailed one day after they received the DMA report.

So I uploaded the new xray info and asked the CE to resubmit my file to the DMA so he could consider changing his rating, based on the joint space being 2mm. (as he said he would in his report) It seems like they are not going to budge.

Whew! Should I ask for a oral hearing? Or would it be better just to ask for a reconsideration?
This should be a pretty easy win for me.(knock on wood...nothing is “easy” when it comes to dealing with OWCP)
The DMA wanted an xray proving a 2mm joint space interval and I provided it.
I am just not sure which type of appeal would be best (and hopefully faster) to file for.

Thanks again

Edited by user Saturday, February 23, 2019 8:44:53 AM(UTC)  | Reason: Not specified

Polar Bear  
#2 Posted : Saturday, February 23, 2019 4:59:24 PM(UTC)
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Have you consulted a WC law firm?
diannedawn  
#3 Posted : Saturday, February 23, 2019 6:44:30 PM(UTC)

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No...I didn’t even consider it. As I said, this should be an easy win.
I have the proof the DMA ask for and he said he would reconsider his rating if I had an xray showing 2mm for the joint space interval.

The CE is just being a jerk. They never should have been so hasty to send out a Notice of Decision... they should have talked to the second opinion doc first. He is their doc! Jesse Slade says in his blog that there is not supposed to BE a disagreement between the DMA and the second opinion doc anymore!

After I sent in the new xray, they could have rescinded the decision and sent the file back to the DMA. But they refuse to.

I know the primary reason that they are not doing that is because filing an appeal will take LONGER.
They have drug this scheduled award out for over 10 months already.
It took them over 4 months to schedule the second opinion appointment that they wanted. Then after I went to that, the CE took 2 months to send the file back to the DMA. Then the DMA took over 2 months to make a decision...

Now they are making me file an appeal when they have to know they will lose...the xray shows a 2mm joint space!

I just neeed to know the fastest way to appeal.
I realize it will probably take a month or 2...maybe more?
I know nothing goes quickly at that place.

But is a reconsideration maybe faster than demanding an oral hearing?

Edited by user Saturday, February 23, 2019 6:46:29 PM(UTC)  | Reason: Not specified

VW1  
#4 Posted : Sunday, February 24, 2019 7:26:29 AM(UTC)
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From my experience if you are looking for the fastest way to get a decision on your appeal then you might want to consider doing a reconsideration request. You can usually get a decision on a reconsideration somewhere between 45 and 90 days if you stay on top of them. An oral hearing is going to take at least 8 months to even get scheduled and then it is still another 30 to 90 days to get a decision once the hearing is completed. A review of the written record will take approximately the same amount of time as an oral hearing as it is also looked at by a hearings representative.

Make sure when you file your appeal, no matter which one you choose, that you don't just do the appeal thinking you have a slam dunk win because you don't in their eyes. Yes you have the information that the DMA stated he wanted but you were sent for a SECOP so the DMA's opinion no longer matters. Do your research and make sure you make every legal argument and bring forth every point of law that you can in your appeal just in case it gets denied. This will also help speed up the process by you avoiding to have to file several appeals to make sure everything is in order on your end.
diannedawn  
#5 Posted : Monday, February 25, 2019 2:44:12 PM(UTC)

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That brings me to another question...
:)
If ANY of these appeals are going to take months, and since I am so close to the year mark from when I filed for the scheduled award.
Should I file for the reconsideration on this filing, and if I have not gotten a decision by April 11 (one year from the filing),
just file ANOTHER CA-7 for another scheduled award?
You can file once a year, right?
I think I remember reading somewhere that many people do not even try to fight a decision, that they just re-file.

Would that be allowed if I had a reconsideration in process?

Just to clarify, the first DMA report said to get a second opinion. After I went to that appointment, the DMA then disagreed with the second opinion doc...
About which Jesse Slade says this...
"The new change indicates that the DMA cannot create a conflict in medical opinion with a second opinion physician because both the DMA and the second opinion work for OWCP. A conflict in medical opinion occurs when a doctor on your side disagrees with a doctor on OWCP's side. Since both the DMA and the second opinion are on OWCP's side, there cannot be a conflict.

Instead, the DMA must provide a medical report with medical rationale stating why they don't agree with the second opinion and the CE is to ask for a clarification report from the second opinion if the DMA does not agree with the impairment rating.

After receiving the clarification from the second opinion, the Claims Examiner, (CE) must then weigh the medical evidence to see if there is a conflict in medical opinion between your doctor's rating and one of OWCP's physicians. There can no longer be a conflict in medical opinion between two of OWCP's doctors."
http://theowcpclassroom....ions-to-feca-manual.html

They obviously never asked the second opinion doc for clarification...if they had, I am sure he would have made sure they understood the xrays in my file showed a 2mm joint space. The new xray looks the same as the previous ones. The difference is the xray "imaging report" (#3) specifically states the joint space. Before they just used vague wording in the 2 reports...
But the second opinion doc is employed at the facility I normal go to, so he had access to my actual xray images...not just the reports.
I do not think both previous xray reports are even in my file. I could not find the second one.

Can use the second opinion doc's report to file a NEW CA-7 schedule award request?
That would be funnier than hell if I could!
How old can the report be when you submit it?


VW1  
#6 Posted : Monday, March 04, 2019 7:47:30 AM(UTC)
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If you file for a reconsideration and do not have a decision within 1 year of filing for the SA, if you file for a new SA they will deny it based on the fact that you appealed the SA decision and will have to wait out the appeals process. I have never heard of being able to file for a SA every year but you can file for a SA whenever you want until you are found to be 100% disabled with that scheduled member of the body.

In the SECOP report did the doctor list the documents he reviewed? If so, is the x-ray report listed? If not, does he reference the x-ray report in his write up? If he did list or reference it then that is an argument you can use on your appeal. If you forego filing the appeal and wait for the year to end and file for a new SA, you will need to get a new impairment rating done because if you submit the same one they are just going to put you through all of this all over again. My suggestion to you would be to file the appeal because you have a very good chance of winning on appeal as long as you make the proper arguments. One thing you will have to learn when dealing with OWCP is that you have to have patience. No matter which route you decide to take it is still going to be several months before you get the issue resolved.
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