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ORKERS’ COMPENSATION CLAIMS FOR

  over two million federal civilian employees aregoverned by the Federal Employees’ Compensation

 Act (FECA), which is codified at 5 U.S.C. Section 8101 et seq. The rules and regulations are more meaningfully discussed inchapter two of the FECA Procedure Manual, which is utilized

by claims personnel at the Department of Labor, EmploymentStandards Administration, Office of Workers’ CompensationPrograms (OWCP). There are very few publications outside of government publications concerning FECA claims procedures.

From a practice standpoint, it is essential to understandthat the rules and regulations governing federal workers’compensation claims are significantly different from thoseinvolved in state workers’ compensation and personalinjury claims. One major difference is that an applicant’srepresentative must provide an itemized statement showingthe hourly rate, the number of hours worked, the type of workperformed and the total amount charged for the representation(excluding administrative costs). Contingency fee arrangementsare not permitted. In addition, percentage fee arrangements arenot permitted.

There are no liens for attorneys or physicians in thefederal system. However, attorneys may request depositsfrom claimants. These funds must be placed into a segregatedaccount, usually a trust account or escrow account, and remainthere until fees are approved by the Claims Examiners atOWCP.

Federal employees whose claims are accepted may receivebenefits which include payment of medical bills for evaluationsand, in some cases, payment of disability compensationbenefits. Monetary benefits under the FECA are tax-free.

Requirements for Federal Claim

There are five basic requirements for a claim to be accepted.1. The claim must be timely. Written notice of injury orillness must be filed within three years of the date of injury or illness. In the case of an ongoing injury,such as a repetitive motion injury, the claimant mustfile the claim within three years of the date of lastexposure to the employment factors which have causedand/or aggravated the condition claimed. In the caseof latent injury claims, time begins to run when theinjured employee becomes aware, or reasonably shouldhave become aware, of a possible relationship betweenthe disease or condition and the employment.

2. A claimant must also be a civilian employee forpurposes of the FECA. This is very seldom a problem,

as most claimants are quite obviously civilian employeeswho work for government agencies. There are, however,some individuals who are not direct employees of thefederal government but who may be covered bythe FECA.

3. Fact of injury must also be shown. It must be

demonstrated that the employee actually experiencedthe accident, event or employment factor which causedthe injury. In this regard, witness statements can be of great importance. However, this requirement can besatisfied based upon the statement of the claimantalone, if that statement is not contradicted by factualevidence regarding the claim. It must also be shownby medical evidence that the claimant suffered adiagnosed injury or illness.

4. Performance of duty, which is basically the equivalentof AOE/COE (arising out of employment and in thecourse of employment), is another requirement. Thequestion is generally whether the individual was

performing his or her duties on the date, at the timeand at the place where the injury or illness occurred.This issue is generally fairly straightforward in physicalinjury claims. The issue of performance of duty becomesmuch more important and much more difficult inemotional illness claims.

5. The next requirement is causal relationship. The injuryor illness suffered by the claimant must be shown bymedical evidence to be causally related to the dutiesperformed by the claimant.

When the claimant meets all five of these requirements,the claim should be accepted by the Claims Examiners atOWCP.

Claim Approved A claimant with an approved claim has the right to select atreating physician. Once an approved treating physician hasbeen selected by the claimant and recognized by the ClaimsExaminers at OWCP, it is extremely difficult to change treatingphysicians.

 Another benefit available to claimants with acceptedphysical injury claims is the schedule award, which isa payment of additional compensation for permanentimpairment related to the accepted condition. The treatingphysician must provide a report advising that the claimant’scondition has become permanent and stationary and reached a

W

By Max Gest

Federal Workers’Compensation

Claims

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point of maximum medical improvement, indicating the dateof maximum medical improvement. There are no scheduleawards for the head, the heart or the spine. However, whena claim has been accepted for a spine condition, the claimantmay receive a schedule award for permanent impairment to anarm or leg resulting from the accepted spine condition.

Second OpinionsThe Claims Examiners at OWCP may at any time decide torefer a claimant for a second opinion physician (SECOP)evaluation. SECOPs are physicians who work for a privatecompany which contracts with OWCP. The SECOP is providedwith medical documentation from the case file. The SECOPis also provided with a very important document calledthe Statement of Accepted Facts (SOAF). This advises theSECOP of the background of the case, including informationconcerning the conditions accepted.

Under FECA rules and regulations, the SOAF must beutilized by treating physicians, evaluating physicians, SECOPsand referee physicians as the only factual framework for thesephysicians’ opinions. The SECOP is also provided with anotherdocument entitled Questions to the Second Opinion Physician.These questions generally deal with the issue of the conditions

diagnosed by the SECOP, issues involving temporary orpermanent aggravation, issues regarding disability, issuesregarding whether or not the claimant continues to sufferresiduals of the accepted injury, as well as issues regardingthe permanent impairment to a part of the body in regards toschedule award claims.

When the SECOP’s report is adverse to the claimant, it isabsolutely essential that the claimant’s treating physician oranother evaluating physician provide a rebuttal report to theopinions and conclusions expressed by the SECOP. The reportshould state that the physician has received and reviewed theSOAF, has utilized the SOAF as the only factual basis for theopinions presented, and has received and reviewed the report

of the SECOP. The physician’s report must be historicallyaccurate based upon the SOAF and responsive to the questionsposed to the SECOP. The report must also contain appropriatemedical rationale.

When the Claims Examiner determines that there existsan unresolved conflict of medical evidence, usually betweenthe report of the treating physician and the report of theSECOP, the claimant will be referred to a referee physician.This physician must be selected at random, based upongeographical proximity to the claimant’s home or worklocation, from a national database, Marquis Who’s Who of Medical Specialists.

When the Claims Examiner determines that the refereephysician’s report is properly based on an accurate history

and the SOAF and contains appropriate medical rationale, thereport of the referee physician will be provided with additionalor special weight. This additional or special weight means thata mere disagreement between a treating or evaluating physicianand the referee physician will not be sufficient to shift theweight of medical evidence from the referee physician.

 Appeal Rights Whenever the Claims Examiner at OWCP generates adecision which is adverse to the claimant in whole or in part,the claimant is provided with a formal decision with appealrights. The initial decision and certain other decisions givethe claimant the right to appeal to the Branch of Hearings and

Review by way of a telephonic hearing, an oral hearing, orthrough an Examination of the Written Record. Oral hearingsare either in person, with the hearing representative meetingwith the claimant, or, increasingly, by teleconference in citieswhere teleconferencing is available. A request for a hearingmust be received by the Branch of Hearings and Review within30 days of the date of the decision being appealed.

All merit decisions give the claimant the right to requestreconsideration with a Reconsideration Examiner at theDistrict Office of OWCP. The Request for Reconsideration must

include new information not previously considered and mustbe received by OWCP within one year of the decision.

In addition, all merit decisions give the claimant theright to appeal to the Employees’ Compensation AppealsBoard. Most ECAB appeals are papers-only. ECAB hearingsare discretionary. When granted, they are held in Washington,D.C. The ECAB can only consider information anddocumentation in the case file as of the date of the decisionbeing appealed. No new evidence can be considered by theECAB. The Application for Review must be received by theECAB within 180 days of the decision being appealed.

Fewer than approximately 100 attorneys across the U.S.represent federal civilian employees in regards to their federal

workers’ compensation claims.

Max Gest is a graduate of Loyola Law School.He has been in practice in West Los Angeles

 for over 40 years. The major emphasis of his practice is representing claimants in federalworkers’ compensation claims. Gest is AV-ratedby Martindale Hubbell. He can be reached at(310) 553-2700.