An injured postal worker whose claim has been denied at the OWCP District Office, through either outright rejection or a termination of established benefits, does have impressive, but complicated, appeal rights. One of the most valuable of those rights is the right to appear before a Hearing Representative in an OWCP Oral Hearing. This paper will discuss how to prepare for an OWCP Oral Hearing.
Each Branch will have to decide whether or not to actively pursue representation of its injured members. Given that careers are at stake when serious injuries or illnesses are suffered, my personal opinion is that representation is nothing less than a must for any responsible NALC Branch. Any compensation claim involving a disabled worker is a job jeopardy issue. There are some cost considerations in OWCP representative, but the Branch does not pay for any portion of the cost of the actual hearing or for preparation of hearing transcripts. If you need advice or assistance, call your National Business Agent. Never abandon an injured worker!
An Oral Hearing is an informal appearance, with or without representation, before a Hearings Representative of the Office of Workers’ Compensation Programs, Branch of Hearings and Review, United States Department of Labor. Their address is Box 37117, Washington, DC 20013-7117.
Nature of the Hearing
The hearing is informal in that the government Agency (in our case the Postal Service) cannot participate in the hearing. The Agency may send an observer to the hearing, but this "uninvited guest" is not permitted to argue in any way. The hearing has many serious elements, however, in that it is an "on the record" proceeding complete with a court reporter and sworn witnesses.
The hearing is "non-adversarail," meaning that the employing agency cannot engage in formal cross examination. The employing agency also cannot voice objections at the hearing or try to submit documents or arguments at that time. Be aware, however, that the Hearing Representative may ask hostile or even leading questions if he or she does not believe the direct testimony of the injured worker. As noted, the employing agency does have the right to send a non-participatory observer, however, and the employing agency does have the right to object in writing to the Hearings Representative if it does not agree with the testimony given and to submit written rebuttal evidence.
A Hearings Representative will usually be assigned as many as 36 cases per visit to a major city. He or she will docket a case every 30 to 60 minutes, and anyone planning to put on an all-day show will rapidly try the patience of the Representative. Also, most OWCP cases are decided based on adequacy or inadequacy of narrative medical evidence, not showy argument.
The Representative does not want the history of the Postal Service or a lengthy exercise in management bashing. An exception must be made in management-induced stress claims, as the conduct of management is clearly the aggravating factor. But credibility of the claimant and quality documentation are the crucial elements if you hope to win.
In all cases, whether the claimant's evidence is testimonial, medical, or in the form of a written statement, you must produce convincing evidence, be absolutely factual, and get quickly and clearly to the point.
If you are making procedural arguments, show the law or regulation citation by number and attach a copy of it to your submissions. If you are quoting OWCP precedent, cite the ECAB (Employees’ Compensation Appeal Board) case by name and number, if possible, and explain why your citation should reverse the District Office decision.
Full ECAB decisions are obtainable in large law libraries. For a particular case, try writing the Employees’ Compensation Appeal Board, at ECAB, 7th and D Streets, Washington, DC 20210. Most ECAB precedents are accurately quoted in District Office, Oral Hearing, and ECAB decisions, because virtually all OWCP cases are adjudicated based on ECAB precedent. A Branch comp officer can rapidly acquire a storehouse of ECAB excerpts, just by saving copies of every decision received. ECAB decisions and "headnotes" summarizing the precedent in ECAB decisions, and a storehouse of other compensation resources and forms, are now available at the OWCP web site
The publication CA-810 is an important handbook, which very accurately predicts OWCP policy in claims development and adjudication. This excellent, highly readable book is available in hard copy or on line.
The FECA Procedure Manual , now available on line in folio (subject-by-subject) form, is also an invaluable tool for making convincing arguments that the District Office developed or adjudicated the case improperly. Since Claims Examiners and Hearings Reps rely constantly on the Procedure Manual, you can truly level the playing surface by acquiring this material.
Also, many excellent columns by Linda DeCarlo (and formerly by Bert Doyle) in recent issues of the Postal Record should be used for reference when dealing with compensation problems. These articles consistently discuss the level of proof needed to win claims. Any serious advocate for injured letter carriers should read available back issues of the Postal Record. Articles by Ms. DeCarlo and Mr. Doyle are now available at the NALC Contract Administration web site, along with a tremendous amount of other excellent materials for union advocates. Simply link to: NALC Contract Administration.
How Not to Prepare for an Oral Hearing
My first Oral Hearing is instructive in how to do everything wrong. The claimant called the Branch 1 Union Office two days before the hearing and asked if someone could accompany him. President Wendland assigned me the case, and wisely told me that they have to hold the record open for thirty days if the claimant needs more time to prepare medical evidence. On my motion, the Hearings Representative did exactly that, because the claimant had no evidence and was intending only to complain about his supervisor.
I knew little about the claimant and almost nothing about his injury as I sat down in front of that Hearing Rep. Beyond buying him a month to do what should have been done before his appearance, I accomplished nothing for this brother. Why? Because I was totally unprepared.
How to Prepare for the Hearing
To successfully appeal any negative OWCP decision requires preparation. Someone who enters this arena with an attitude of "They can’t do this to me!" or "I’m going higher because they’re wrong!" is in for still more disappointment.
No one should ever go to an Oral Hearing without a true copy of the OWCP file under the OWCP file Number of that claim. There will almost always be items submitted by the Post Office that were not shared with the claimant. Independent medical records will be enclosed, which often form the basis for denial based on weight of evidence, and if they are Postal in origin they should be challenged as not valid OWCP second medical opinions.
If the District Office sent the case for assessment with a local physician,the report will be there. Any telephone conferencing with anyone involved should be summarized in the file. Most importantly, any controversion activities by the Agency will be revealed.
To get the file, write to the District Office or the Branch of Hearings and Review, whichever office currently has the file, and ask for it. This may not work. When you receive acknowledgement from the Hearing Representative that the case is scheduled, call up immediately and ask for the file, requesting it by phone or FAX at the number and extension listed on your appearance letter. These direct approaches do work.
In your preparations, I recommend that you consider organizing your submissions formally, and introduce your case with a short brief which introduces your exhibits and lays out your theory of the case. This effort must proceed with with appropriate clarity and neatness. The Hearing Representative will assign numbers for each exhibit, making it easier for you to discuss or further introduce the documents as the claimant gives testimony. Developing a tabular file with indexed exhibits is a possibility, but is usually unnecessary. A well structured presentation will introduce your every intended point, saving you from memory lapses under the stress of presentation.
Preparing the Claimant for the Hearing Appearance
The claimant also must be prepared for the hearing. He or she must be much more than a mere spectator. Does the claimant actually understand why the claim was rejected or terminated? The reasons usually are based on weak medical or inconsistent factual evidence.
It is necessary to explain to the claimant how the hearing process works, and what his or her role will be. Address and resolve any anxieties that occur. It helps to explain that the claimant has nothing to lose and everything to possibly gain by proceeding.
You will have only a few weeks after receiving the appearance notice for the hearing to complete preparations. Make sure your claimant is prepared to appear and discuss the claim, realistically and intelligently.
Is the claimant ready for the role of testifying? Only through testimony will the claimant personally convince the Hearing Representative that he or she is an honest person and is a genuinely injured worker attempting to make a valid claim. The claimant should be well prepared to answer direct questions. The advocate is strongly advised not to rely on leading questions. Direct questions invite the claimant to explain things in a conversational tone, which enables the Hearing Representative to get to know the claimant. Direct questions also free the claimant to make clear eye contact with the Hearing Representative instead of paying excessive attention to the advocate. Leading questions, on the other hand, are frustrating for the representative, as the witness is only saying yes, no, or other very brief answers to the advocate's statements, as if rehearsed.
Drawing up a list of direct questions prior to the hearing will insure that all the necessary questions are asked. Prepare the claimant to ask for clarification if any question is misunderstood. Prepare the claimant for the possibility that the Hearing Representative will want some answers, too.
Having the claimant give a history of the injury and explain the roles of the various physicians can be most helpful. As much as possible, it helps to use the testimony of the claimant to introduce or verify documents and establish key aspects of the case.
Validity Issues
Are you prepared for the possibility that the claimant may no longer be disabled, at least fully disabled? Few letter carriers engage in outright fraud, but any discouraged or angry person may be so absorbed with being injured and disabled and so broken down in spirit after rejection that some symptom magnification is taking place. If all the medical evidence is drying up, or the board-certified specialists cannot find what the claimant’s family physician is diagnosing, it is crucial that you explain to the claimant that OWCP has the responsibility of adjudicating claims based on what is in the interest of fairness to both the claimant and the United States Government. Above all, the claimant has to understand that the burden of proof is almost entirely carried by the person making the claim, except when OWCP is reversing a previously approved claim.
Even an employee who is recovering from disability may not have received all entitled benefits, such as COP, periods of compensation, or paid medical care and transportation. These are partial victories you may be able to win for the claimant, even if the hearing is not going your way as far as reversing the formal decision or winning entitlement to overall compensation.
The Role of Conditions of Coverage
When the Office of Workers' Compensation Programs undertakes development of a compensation claim, the submissions are examined against the five essential conditions of coverage prior to approval. For a complete discussion of conditions of coverage, see Chapter 3 of Handbook CA-810.
The first such condition is time. A claim must be filed within a three-year statutory time limit to be legally filed, in the absence of very unusual circumstances. Any claim not filed within 30 days will probably be closely developed under fact-of-injury factors to ascertain that the statements of the claimant are consistent with known facts surrounding the injury. This issue is anticipated by Question 15 on Form CA-2, where the claimant is asked for an explanation if the time of filing is more than 30 days greater than the reported date of awareness of employment causation as reported at Question 12. In traumatic injury claims on Form CA-1, the claimant loses entitlement to continuation of regular pay if the claim is not filed within 30 days. Form CA-1 also recommends filing within 48 hours to avoid possible interruption of pay.
The second condition is civil employee. The second condition that must be confirmed is that the injured or deceased is a Federal employee within the scope of the FECA. Postal workers are covered employees. Contract employees may be covered, but the Office will apparently make a case-by-case determination.
The third condition is fact of injury. To establish fact of injury, two components must occur. (1) There must be an occurrence of an accident, event, or employment factor which is alleged to have been injurious. In the absence of substantive evidence inconsistent with the employee's version, the employee's statement should normally be sufficient to establish occurrence, even without additional witnesses. (2) There must be a medical condition produced by the implicated employment factor(s). Establishing that the employment factors produced a medical condition is achieved on the basis of the attending physician's statement that a medical condition is present which may be related to the incident or employment factors.
The fourth condition of coverage is performance of duties. A determination must be made that the employee was actually in the performance of duties or engaged in activities reasonably incident to duties when injured. Premises also affords coverage unless the activity is clearly beyond the scope of employment. Unfortunately, letter carriers are injured off-premises very frequently, and the Office will apply firm rules that do not extend coverage in most cases to personal missions or injuries without a direct connection to employment.
The fifth condition of coverage is establishing causal relationship. Examination of causal relationship begins with the claimed medical condition and establishes with medical certainty that it is directly related to the implicated employment factors. Direct causation is a showing that the employment factors have caused the injury with a direct and unbroken sequence. Temporary or permanent aggravation describes the worsening of a pre-existing condition by a injury (including illness). Temporary aggravations are only compensable until the employee returns to his or her previous physical status, whereas permanent aggravation involves a condition materially worsened by the effects of a work-related injury such that it will not return to the pre-injury state. Acceleration arises when a work-related injury hastens the development of an underlying condition, when the ordinary course of the disease does not account for the speed with which the condition develops. Precipitation describes latent conditions which would not have manifested themselves on this occasion in the absence of the employment factors. Exacerbated asthma is such a condition often found in letter carriers, in my opinion, in that the disease is latent until dust, heat, pollen, or some other respiratory insult provokes an asthma attack.
Medical Evidence Issues
Any medical evidence to be submitted must be free of speculation about the condition or its cause. The report must be narrative in nature, showing that it is an accurate accounting of the claimant’s condition, not just a disability certificate.
The report must begin with an accurate history of the condition, showing its relationship to employment factors or direct traumatic causation in the performance of duties. The report must clearly indicate the nature of incapacity and must explain any disability, either partial or complete, under review in the claim, and clearly relate historic or ongoing disability to the injury or work factor.
The medical evidence should be detailed enough to answer with medical reasoning as to whether the causal relationship involves direct causation, aggravation, acceleration, or precipitation.
The report must summarize any tests or procedures used to establish the diagnosis and prognosis, and must include any further recommendations for treatment. The crucial role of medical evidence in reversing either a claim rejection or termination of benefits cannot be overemphasized. It is critical!
Because certain very valuable OWCP benefits are awarded based on a published schedule in the event of permanent disability (schedule award of compensation), the report should disclose whether maximum medical improvement has taken place and if permanent loss or impairment has occurred. The current resource for evaluating impairment is the AMA Guides to Impairment, 5th Edition. In schedule award cases, the chance of success is dramatically improved if the physician refers to this source book in attempting to rate permanent impairment.
Finally, any medical report must carry an original signature of the treating physician, not a rubber stamp, and not the signature of someone else on staff that will not be recognized by OWCP as a practitioner under the Federal Employee’s Compensation Act.
The Damaging Effect of Poor Medical Evidence
Any medical report which is deficient should be immediately returned to the physician with a note of explanation, defining what is needed for the claim to succeed. Submission of inadequate medical evidence or records will produce a denial, and the claimant’s appeal rights will thereafter be reduced to reconsideration of new evidence by the District Office or to a final appeal to ECAB without the privilege of submitting further new evidence.
The formats for injury, illness, and continuing disability found in the NALC Injury Compensation Manual are perfect for helping a physician write accurate and effective medical narration. The Forms CA 35a-h contain information on many specific occupational illnesses, giving the physician a checklist while itemizing the necessary tests for these conditions. Refer to OWCP Brochure CA-810 for copies of each Form CA-35 and as a highly instructive resource on all phases of OWCP policy. n.
Oral Hearing Checklist
Have I acquired and studied the OWCP case file? Do I understand the disputed condition(s) of coverage? How will I make and prove each of my arguments? Have I verified physician selection rights in CA-1 cases? Have I verified CA-16 issuance in routine CA-1 cases? Have I verified claimant due process protections
(30-Day Pre Termination Notices prior to termination of claims,
or 30-Day Development Letters prior to claim disallowances, etc.)What remedies am I seeking? What is my justification? Is the claimant prepared to appear and testify? Are medical and other submissions copied and ready?
Disclaimer: The material in this article is not presumed or intended to reflect an official position of the
National Association of Letter Carriers or the Michigan State Association of Letter Carriers. This article contains opinion statements of the writer offered for basic informational purposes only. There is no substitute for consultation with or representation by a trained advocate. The writer cannot assume responsibility of any type for the use of this material by others.
