After nearly 20 years of handling federal workers’ compensation cases, I am certain the most important type of case is the one involving OWCP terminating the compensation of a claimant who has been receiving wage-loss and medical benefits, sometimes for many years. The reason for the termination is most often because a second opinion or referee medical report has concluded the claimant’s work-related medical condition has resolved. OWCP often decides that while the claimant may be disabled from working, the cause is no longer the work injury. Instead OWCP decrees that disability comes from degenerative disease or some other non-work factor.
Ten years ago I was confident that if I responded vigorously to a notice of proposed termination of compensation, the claimant might never again hear from OWCP about termination. I have clients from the 1990s who continue on compensation today because of responses to notices of proposed termination. Those were the good old days.
These new days are more complicated. One reason is that OWCP is simply more efficient. No longer can a claims examiner in isolation ignore a claim because she doesn’t want to deal with a claimant’s response to proposed termination. Claims are now routinely reviewed and rotated among examiners.
Another reason is that OWCP is now willing to pay for replete second opinion and referee medical evaluations and reports. These reports can run dozens of pages and contain testing data. With such brawny medical evidence, the claims examiner drives the locomotive of termination. A claimant’s response to proposed termination is best when supported with his treating doctor’s countering report. And a response is best when it can argue that the second opinion or referee report is not well rationalized.
A third reason is that claims examiner appear better trained in the art of termination. In addition, computers can now generate notices of proposed termination into which the claims examiner need only insert the particulars of a case and attach a medical report. When one compares the new notices with an example of the faded short notices of fifteen years ago, one can sense the force of OWCP’s current efforts to terminate compensation claims whenever possible.
Yet, in nearly every case that comes to my attention, there are bases for resisting the termination of compensation. The second-opinion or referee medical report can be legally faulty, and a client’s treating doctor can have an opinion that needs only to be put in writing along the lines of OWCP standards. Federal regulations and ECAB case law control medical report requirements.
Even if OWCP goes ahead with a termination of compensation, a person can request a hearing. At a hearing a clamant and/or his representative can submit new medical evidence, argue the case, and offer testimony. The hearing representative in his decision either upholds the termination, reverses the termination and reinstates compensation, or remands the claim (sometimes with compensation reinstated) to the District Office for further development. That development is usually a new medical report meant to clarify or correct earlier reports. Those honed reports can find the work injury continues. Compensation is reinstated and back benefits lost during the appeal are paid.
A termination case is important because my client depends on the compensation income. She doesn’t think her medical condition has improved, at least not to the point that she can be gainfully employed. Disability retirement and social security might be options, but monthly disability retirement payments are less and are taxable, which means the loss of many thousands of dollars over years.
Responding to notices of termination is worthwhile because of that potential loss of income and because of the fact that OWCP found the claimant eligible in the past and now carries the burden to prove eligibility has ceased. Appealing notices of termination is also worthwhile for the same considerations.
Going forward, handling termination cases is the priority for my law practice.
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