Brad Harris
Attorney

Brad Harris can be contacted at (877) 226 –2723 or at hbharris@iglou.com or at his website www.HarrisFederal.com.

Bo Harris, Federal Claims Representative

How to Fight for a Schedule Award
by Brad Harris, Attorney at Law

Why get an MRI for your workers comp?
by Brad Harris, Attorney at Law

So you are going to get an MRI to see if you have damage to the disc in your spine? Imagine taking a photograph of something that can move around a bit, but declaring the way you photographed it, is the way it always is.

You might ask for a “stand up” MRI. The theory is that when a patient is lying down they do not have the typical weight pressure on their disc as if they were standing. You don’t get to lie down while doing most jobs. Your spine typically must support the head and upper torso in the real world.

The lack of typical weight during an MRI taken while one is lying down may create a likelihood that it will not show how the pressure from the upper spine typically effects the extent of the disc abnormality.

Remember, the disc is not a stable, immovable thing.  It is not a bone, it is more like an oval, or doughnut shaped, inner tube used as a shock absorber.  It is primarily made of water.  When healthy it is kind of like a grape, when it goes bad it loses its watery content (dessication), its bounce function,  and becomes  more like a raisin.  Although the outer edge/wall (technically called annular fibrosis) is supposed to be firm it can be “squashed” in such a way that it does not spring back to its optimum shape.

Undue sudden pressure (like when a person falls down, or is whip-lashed in a car wreck, or even in typical exertion movement) can cause a squeezing of this doughnut in a way that one outer wall loses its normal height: it just extends outward, a bulge.

Excessive trauma or just the passage of time can cause the outer wall to lose its encapsulating effect; the inner portion of the shock absorber seeps or extends through, outward and causes additional problems.  This inner area is less dense than its outer edge, like the pulp of an orange surrounded by its skin. When the outer layer fails to hold the inner “pulp” in, the nucleus is described as “herniated” thus the term “herniated nucleus pulposis”.

When the abnormality protrudes out into the surrounding neural area, it sometimes causes inflammation, decreased mobility, and even impingement on the nerve root that can result in pain and loss of strength into the extremity usually serviced by the nerve. The impairment of the extremity may qualify for a workers compensation schedule award.

When a radiologist reads an MRI he notes the prominence of the abnormalities and passes judgment on whether or not he thinks the condition is problematic. He will also often comment on the state of nearby structures.  For example, irregular joint function can cause abnormal bone growth such as bone spurs (osteophytes) or the narrowing of canals in bone structure needed for nerve passageways (foraminal stenosis).

He will quite often refer to the abnormalities in your spine as degenerative.  Beware of this term, it is often as generic as using the word disease to describe any medical problem.  Accordingly, while the word “degenerative” might sound like a bad thing to you, to claims evaluators it is often dismissed as common for anyone with your age, build, or whatever.

Anyway, without making it too confusing, it has been my experience that different MRIs of the same patient can demonstrate different pictures of the problem.  Additionally the pictures can be interpreted differently by different radiologists and other medical professionals. And, even if your MRI does not provide the “objective” evidence of injury that doesn’t mean that a person doesn’t have a permanently injured disc.

You should know that any segmental instability can cause stretching, even tearing of the innervated ligamentous layer of the outer annulus fibrosis.  Even without escape of nuclear liquid (herniation of the disc’s nucleus pulposis) the condition can be very painful.  Innervated means there’s nerves there…so pain can be “regional”: to that disc alone.

Radiating tears are mostly found in the posterior annulus (back wall of the disc) and are closely related to the presence of severe nuclear degeneration.  Peripheral tears are most often associated with trauma as opposed to biochemical degradation and develop independently of nuclear degeneration.

Many people are not aware that some clinical tests have indicated as many as 18 of 60 negative MRIs have positive findings in discography.  Discography is more accurate than MRI for the detection of annular pathology: a normal MRI does not exclude significant changes in the peripheral structure of the intervertebral disc which, of course, can produce pain.

A wound to the outer wall of the disc has a limited healing potential and the persisting defect could provide a pathway for irritating nuclear fluid escape into our perineural tissue, resulting in persistent pain.  Treatment to this type of injury to the disc usually comes in the form of percutaneous decompression.  Because the injury is less likely to cause extremity impairment it may not qualify for a workers compensation schedule award – but it can be just as dehabilitating as an extremity impairment…and frustrating when not properly diagnosed and treated.

So make sure you get a good photograph, and ask for a good, lengthy explanation of it by someone trained in its full interpretation! Good luck on your MRI. top

Workers Compensation Causation; Not a Guessing Game
by Brad Harris, Attorney at Law

Most workers understand that when they are making a federal workers compensation claim it has to be supported by the professional opinion of a medical practitioner.  What I mean by that is, it doesn’t matter what you say, if the medical evidence does not have the foundation of support from a qualified person in the practice of medicine you will not be successful in getting your claim approved.  The Employing Agency (EA) rightfully has an obligation to controvert the claim where there is a dispute as to the stated facts.

Because the employee has the right to select a physician of his choice and because the willingness of the physician to connect the injury to work activity is critical to entitlement to benefits, this selection may be one of the most important decisions an injured employee can make.  I suggest that the employee contact local plaintiff attorneys to find out which doctors are likely to be more responsive to the employee as opposed to the employer.

Moreover, I suggest that you take a special interest in this because, as you may soon learn, your medical evidence will be called “insufficient” if it not expressed correctly. Specifically, I think it is not only necessary but crucial that the medical care provider state that it is his opinion, within reasonable medical probability, that an incident at work, or the work conditions themselves, caused the need for your various medical treatments.

And the doctor should conduct a thorough examination, including diagnostic testing, because  the OWCP and the ECAB have continually stressed the need for medical reasons. For example:

“A physician’s opinion supporting causal relationship between a claimant’s disability and a specific employment incident or factors of employment is not dispositive on the issue of causal relationship simply because it is rendered by a physician. To be probative value to an employee’s claim, the physician must provide rationale for the opinion reached. Where no such medical rationale is present the medical opinion is of diminished probative value.”

Because the concept of reasonable medical probability is often misunderstood, and because of its necessity I want to take a few minutes here to describe it to you at length.  The law requires that an expert opinion, from a medical care provider, be expressed by him/her to a degree of certainty of at least 51% with regard to two basic issues:

1. does this person have an injury?

2. what incident caused the injury?

It’s not really that difficult a concept, but many doctors are unaware of how simple it is.  Does your doctor have any reason to believe that anything but your report of the injury is true?  How closely connected in time are your symptoms to the incident?  Are your symptoms the type the doctor would expect to see in a person that has had the type of trauma that you describe?  Does his examination and testing indicate to him that you really have the problem you complain of?  If your doctor doesn’t believe you, or won’t put it in writing, the workers compensation is not due.

He only needs to express that there is a 51% certainty that:

1. the work incident (or work conditions) caused your injury and,

2. the medical expenses are both reasonable and due to the injury

Simply put, if the only medical evidence from your doctor is no more than guessing:

- “It might have caused it” or
- “It could have caused it” or
- “It is a possibility that it caused it”
- “It was a factor that contributed to it”

The OWCP may very well decide that the doctor’s opinion isn’t important, the vagueness and uncertainty may kill your chances of successfully having your claim approved. The second opinion doctor hired by the OWCP  to review your medical records may decide your problems are deemed to be of unknown etiology… like they might have come from outer space.  That why I’m writing this letter to you. Most often, the doctor’s notes in your file aren’t sufficient to deal with these issues, and may therefore be essentially useless in terms of winning your case or convincing the OWCP they are legally liable for the condition your doctor treated.

This issue is what we call causation.  The doctor should provide a 51% link between your symptoms, his diagnosis and the injury.

We are not asking that the doctor to say he knows this with 100% certainty, nor that he knows it beyond a reasonable doubt, but if he can’t honestly say that he has a degree of certainty of at least that it is more likely than not; 51%, there won’t be sufficient evidence to establish your claim.

If his opinion isn’t to a 51% certainty, then I would not recommend pursuing the case because my best guess is there is insufficient medical evidence to believe you will succeed.  Let’s not make it a guessing game, let’s get causation in writing, and therefore more probable than not that we will be successful. top

Brad Harris can be contacted at (877) 226 –2723 or at hbharris@iglou.com or at his website www.HarrisFederal.com.

Understanding Workers’ Compensation Retaliation
By Brad Harris, Attorney at Law

Workers compensation laws developed as a labor/management trade-off to benefit society. The employer is relieved of being legally responsible for an injured worker’s pain and suffering but the employee is relieved having to prove that the employer was negligent in permitting the injury to occur.  This reduction in proof - reduction in benefit tradeoff was supposed to allow us all to enjoy a less litigious, cantankerous situation when a worker became injured.

Along those lines, the Federal Employees Compensation Act (FECA) is to be liberally interpreted in favor of the employee.  Of course the worker needs to establish the basics: he was about the business of his employer when he became injured and that the injury has caused him to need medical attention.  Thereafter, the proper forms are to be sent to the Office of Workers Compensation (OWCP) for approval.  If there is any question about any benefits the resolution procedure is designed to not be adversarial in nature.   

On the other hand the OWCP rightfully should deny requests for payment of claims that lack documentation to connect the injury to the work incident.   Because the “connection” is typically little more than a worker’s report to the physician that it happened at work, it is important that a doctor correlate his findings to the worker’s description of the injury event.

The costs of an employee’s workers’ compensation benefits are deducted (charged back) from the employing agency.  It has a right, perhaps an obligation, to represent its position and interest to the OWCP.  When appropriate, the employer should “controvert” the claim.  For example, if the medical treatments do not appear to be supported by objective evidence.

It is natural for the employer to interpret a minimization of payments made in connection with the claim to be appropriate cost avoidance and thus good management.    

Without a good understanding of what is happening, and why, the employee may think the actions by the employer’s controversion of his claim is overly aggressive and the decisions made by the OWCP unintelligible. 

Most of the people assigned to overseeing a workers compensation claim are taught to be wary of fraud, or at least the potential for fraud. Unfortunately, emphasis given to fraud can create excessive suspicion and criticism… especially when the investigator thinks his “discovery” of fraud demonstrates his competence, his loyalty to his employer, and smoothes the way to his own job advancement.  This is a recurring problem seen in other, similar jobs, such as an insurance claims adjusters or a police officers who develop the belief that nearly everyone they see are probably criminals. 

Indeed, some government employers have their own “police force” or “inspectors”.  They perform eavesdropping and surveillance work of the injured worker to determine his habits, his hobbies and his away-form-work activities in an effort to find evidence that might seem to indicate that the worker has misrepresented his inability to do his government job.  They can make arrests for theft of government property in connection with a fraudulent OWCP claim. 

From the injured employee’s point of view, this can be seen an invasion of their privacy, humiliating, and even intimidating - particularly when one takes into consideration that if his claim is labeled “fraudulent” it may put him at risk for federal criminal prosecution. 

This predicament is often made worse by the fact that managers are often  pressured  to avoid costs by getting the employee back to work.  The federal government does have a legal responsibility to reasonably accommodate the worker by making, where possible, a job assignment suitable to the worker’s current physical limitations.  Again, the aim is appropriate; both cost avoidance and to increase productivity; it’s the techniques that feels like retaliation. 

No employer may require an employee to enter into any agreement to waive his right to claim compensation under FECA.  A worker is not to be coerced into accepting a job that may aggravate his condition or cause re-injury.  But there’s a significant counter weight, the employee’s refusal to accept a reasonable job modification can result in termination of his remaining FECA benefits.  That’s a scary proposition.  In our next and final report in this series, we will discuss what are the things a federal worker can do if he thinks he is facing workers compensation retaliation.

Nosey co-workers?  Detectives watching you?  What can you do about it?  While most of the non-federal (state) workers compensation laws have anti-retaliation provisions, FECA, the federal law creating federal employee’s rights to workers compensation, has no such provision.  The short answer is to find a doctor that will take the time to understand your work duties and report in detail how your physical limitations restrict those duties.  You can also seek union protection by filing a grievance. 

Although a criminal statute that makes a supervisor’s interference with a FECA claim a crime, it is rarely prosecuted. Interference with your rights may give rise to a “Bivens” claim for violation of due process rights guaranteed by the Constitution, but, again, few cases are brought…  probably because the cost to pay an attorney for all the time that would have to be expended exceeds potential recovery.

Although FECA doesn’t provide benefits for labor-management disputes, it can provide workers compensation benefits for stress disorder caused by retaliation - even if no discrimination is proved.  There’s at least two ways to do it:

If a worker believes that he is experiencing stress and an anxiety condition as the result of the difficulty in obtaining workers compensation benefits he may be able to place the costs of the ensuing psychological and counseling treatment into his existing workers compensation claim as an additional component.  The supporting medical opinion should be that the condition is the result of work related issues arising from the preceding work injury.  

An alternative approach, if the disorder is separate and distinct from the old injury, is to file an additional workers compensation claim using a CA-2 form for occupational injury.  I think this is a more difficult approach under FECA and, even if successful, would probably result in no greater benefit than stress claim accepted as a component in the initial claim described above.

Congress passed at least two laws to make sure that one’s disabilities are not held against them with regards to employment - the Rehabilitation Act and the Americans with Disabilities Act.  Although similar to retaliation, unlawful discrimination is considered as an EEO claim and not within the scope of the OWCP or this article.  We will discuss that at another time and place.  Until then, proceed cautiously… and beware of men with video recorders. top

EEO Hero or Tattle-Tail?
By Brad Harris, Attorney at Law

In our American culture, particularly at the movies, we have traditionally honored those who speak up for the rights of others - particularly when they risk something or otherwise place their own future in peril for doing so.  Some hesitant but potential heroes at work may not be aware that their right to speak out is sometimes legally protected by what are called anti-retaliation protections.Retaliation is the intentionally negative response by a supervisor in response to an employee’s complaint about something he (the employee) has reason to believe was illegal misconduct (such as racial discrimination).  

The employee doesn’t necessarily have to be complaining about misconduct to which he is being subjected; for example if a man complains to management about the sexist treatment being placed upon his female co-workers and, thereafter, the employer mistreats him because he asserting those women’s rights, he has been illegally retaliated against.

The person reporting (tattling) about the misconduct does not have to be right in his assertions, just in good faith.  For example, if you think the victim is being treated in an improper way for a sexist reason, report it, but it turns out you are wrong, (the mistreatment is for some legitimate reason) your reporting incorrectly is still protected activity.

Anti-retaliation protection is an important tool to assert at the EEO.  It is essential to the enforcement of anti-discrimination laws.  If it were otherwise reporting the misconduct would result in little more than additional misconduct and cover up; thereby unraveling the legal protection from the discrimination.

As it does with most things in life, our perspective depends upon our relationship to the issue:  Stand up for something I am not interested in? You’re a tattletail, probably only motivated by self interest.  Report misconduct that I agree should be eradicated? You’re a hero. See you at the movies. top

Getting Continuation of Pay Started Off Right
By Brad Harris, Attorney at Law

Most federal employees know that if they are injured on the job they are entitled to workers compensation, some mistakenly think that all is well with their workers compensation claim due to the quick start of disability compensation called the Continuation of Pay (COP) program.  The source of this confusion is that, to some extent, the process of applying for COP overlaps with the process of applying for workers compensation.

Initially it should be noted that COP is paid by the employer only in connection with a traumatic work injury. Employees with occupational disease claims are not eligible to receive COP. They use a different form (CA-2) to apply for workers compensation.

COP is the continuation of an employee’s regular pay for up to 45 calendar days of wage loss due to disability. COP is paid as salary, not compensation.  It is therefore subject to the usual payroll deductions such as income taxes and retirement contributions. The pay rate includes missing night differential, hazard, premium, and holiday pay - but neither Sunday pay (see note) nor lost overtime is included.

In order to receive COP benefits the employee must file form (CA-1) Federal Employee’s Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation.” It must be filed within 30 days of the injury. If the employing agency (EA) does not have a signed CA-1 they cannot authorize medical care or COP benefits.

The employee cannot be required to use his accumulated leave time when he or she suffers a traumatic injury, but if his COP is controverted and terminated, due to financial circumstances he has no choice but to use Form CA-7 to apply for his accumulated leave time, leave without pay, and regular workers compensation (which pays a non-taxable percentage of pay rate – 66% if no minor dependents, 75% if minor dependents).

The employee has the right to select a physician of his choice.  Because the willingness of the physician to connect the injury to work activity is critical with regard to entitlement to benefits, this selection may be one of the most important decisions an injured employee can make.  I suggest that the employee contact local plaintiff attorneys to find out which doctors are likely to be more responsive to the employee as opposed to the employer.  If the medical evidence on its face supports disability due to a work-related injury the employee is entitled to COP when absent from work due to the disability. The attending physician reports the employee’s condition on a Form CA 20.  

Generally speaking, once COP has begun the employer must continue paying.  Exceptions to this general rule exist when (1) the employee fails to provide the employer with medical evidence of a disabling traumatic injury within 10 calendar days of claiming COP (2) the employee’s physician has found the employee to be partially disabled and the employee refuses suitable work or fails to respond to the job offer or (3) the employee’s scheduled period of employment ends, or employment otherwise ends, provided the period of employment or date of termination is set before the injury occurs.

The employer does not have the right to interrupt COP if a disciplinary action has been taken against an employee unless preliminary written notice of termination or other action was issued before the injury occurred and the termination or other action became final during the COP period.

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 individual 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 which includes the employee’s then 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 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.