“All hope abandon ye who enter here”: The Unofficial Motto of the Office of Workers’ Compensation Programs (OWCP)
I must confess that the above quote isn’t really engraved over the entrances to all of the OWCP district offices – poetry buffs will realize that I borrowed this quote from Dante Alighieri, the great 14th century Italian poet who penned the “Divine Comedy” – but from my experience I think it would be a suitable warning to injured Federal workers as to how they are likely to be treated by the agency.
The articles I write for FedSmith.com are typically based on a combination of personal experience and research. This one, however, is based almost entirely on my personal experience as the representative of an injured Federal worker (my wife, Lynda); a human resources (HR) advisor who talked with a number of injured workers during my career; and a short-term consultant to the management team at Rocky Flats Nuclear Weapons Plan, where nuclear workers who became ill as a result of performing essential national security functions have been treated in a way that I believe borders on criminal. Based on that experience, I will make no pretense of being objective when it comes to OWCP.
The plight of sick nuclear workers first made headlines after national media reported the astonishing statistic that the Department of Energy, the parent agency, had run up a $90 million administrative bill in four years but had compensated only 32 people. Congress was so incensed that it turned the whole program over to the U.S. Department of Labor (DOL) in 2004, with explicit instructions to make the compensation “timely, uniform and adequate.”
OWCP even set up a separate organization, the Division of Energy Employees Occupational Illness Compensation (DEEOIC), to handle these cases. However,the late, lamented Rocky Mountain News reported in a July 2008 article by Laura Frank that sick nuclear workers protested bitterly about the program’s failure to meet their needs, noting that Congressional hearings in 2006 uncovered White House attempts to cut costs by denying compensation to more workers.
The Rocky Mountain News went on to observe that Congress was reassured when DOL officials repeatedly testified that the cost reduction plans had been jettisoned, and that they were compensating many more people than officials originally thought would even apply.
But the newspaper’s investigation found that the department had delayed the cases of sick nuclear weapons workers or their survivors across the nation by giving misleading information, withholding records essential to their cases, failing to inform them of alternative paths to aid, repeatedly claiming to have lost evidence sent by ill workers and making requirements for compensation impossibly high.
According to Ms. Frank’s article, the Rocky Mountain News’ investigation showed that “The labor department delayed awards to some claimants until they died.
“One in 17 sick workers or survivors with valid claims – more than 1,200 people nationwide – died before they received their benefits. Even some of the claims that by law should be compensated automatically are being inexplicably delayed or denied.
“Millions of dollars have been spent redoing technical work that was faulty, while top labor department officials directing the program have collected tens of thousands of dollars each in bonus money. Officials refused to explain why the bonuses have been paid. Meanwhile, two out of every three claims sent for scientific analysis – at the National Institute for Occupational Safety and Health – have had to be re-examined or redone.
“Program officials ignored the law and their own rules. They changed rules midstream so claimants who had been told they would receive compensation were instead denied.”
I was so appalled by what I had read, seen and heard that I attended a public hearing held by DOL. Even though I barely knew any of the Rocky Flats employees, I had heard so many good things about their work ethic and professionalism from the management team that I submitted written testimony in support of getting the injured workers paid immediately and fairly.
In my opinion, the top officials of this DOL program, and those at the White House who spurred them on, should have been fired, held in contempt of Congress, and quite possibly brought up on criminal charges. That would be in my fantasy world, of course, not the real world, since there are usually no consequences – at least no negative ones – for malfeasance in the Federal government, with people at the top of the chain-of-command often seeming to be particularly well-insulated from accountability for wrongdoing.
Against the backdrop of incompetence and dishonesty uncovered by the Rocky Mountain News, we probably should not have been surprised when, last February, my wife received, in response to her usual end-of-year written request for reimbursement of medical travel and prescription drugs, two form letters from OWCP with notations declining reimbursement because her case file had been closed due to “inactivity” in 2007 and 2008. We promptly advised the claims examiner by phone and then in writing that Lynda had seen the two OWCP-approved medical providers 14 times during 2007 and 11 times during 2008. And we pointed out the salient fact that OWCP had already reimbursed the providers for all of those visits.
Since inactivity was the basis for the case file closure, we assumed that the documentation of Lynda’s medical visits to OWCP-approved medical providers throughout both years in question would resolve the matter and result in an immediate and retroactive reopening of the case file, but that assumption quickly proved to be wildly optimistic. The claims examiner never addressed the fact that we had offered evidence which fully refuted her stated reason for closing the case file. Instead, she told Lynda in a letter that she must fill out a new CA2a, Notice of Recurrence, in order to request that her claim be reopened.
That made no sense to us, but since the claims examiner had stated in writing that it was the only way to get her case file reopened, Lynda filled out and submitted a new CA2a and supporting documentation. She did so through gritted teeth, since she has found dealing with OWCP to be so stressful that she has chosen to pay her own medical bills (aside from the ones from the two OWCP-approved providers) for years as the preferred alternative to having any further contact with what she perceives as a heartless and soulless bureaucracy.
By way of background, Lynda had been injured in an on-the-job car accident in April 1991, when the right front wheel and axle of the government car she was driving collapsed, hurling her vehicle into a parked car and causing it to spin into that car again and again. Her accident was witnessed and she was taken by ambulance to a hospital emergency room, so OWCP would have had a difficult time refuting her initial claim, but given how much trouble she has had with the agency ever since, we feel sorry for those employees who have to prove, for example, an unwitnessed back injury.
The two medical providers in question had been approved by OWCP for from 12 to 15 years. During that entire period, OWCP had not raised a single question about Lynda’s ongoing medical visits or the providers’ billings. The decision to close Lynda’s case file meant that she would have to pay her two OWCP-approved medical providers out of her own pocket for office visits already completed as well as for prospective ones.
I advised the claims examiner both by phone and in writing that closing Lynda’s case file without notice, and the opportunity to respond, thus stopping benefits that had been ongoing for well over a decade, was a violation of due process. I further noted that the case file closure decision was based on the faulty premise that there had been a period of “medical inactivity” in 2007 and 2008. That argument proved unpersuasive, so I wrote a letter to the claims examiner at the end of May, asking for the specific statutory/ regulatory basis for her decision to close Lynda’s case file. I received no response either by phone or in writing.
We did receive a mid-July letter from a different claims examiner containing basically the same information which had been conveyed by the earlier claims examiner, with no citation of the statutory/regulatory basis for the decision to close Lynda’s case file. At that point, I simply started reading OWCP regulations, including the Department of Labor’s online document, “Questions and Answers About the Federal Employees’ Compensation Act” and the Federal (FECA) Procedure Manual, Part 2 – all 807 pages of it. I captured what I thought were all of the relevant portions of both documents in a late July letter to OWCP.
When I hadn’t received a response from OWCP by mid-September, I sent another letter to the claims examiner. Between letters, I had found time to read two additional OWCP publications, “Injury Compensation for Federal Employees, Publication CA-810,” and “FECA-PT0.” I cited pertinent aspects of both publications in my September letter. I also requested, under the “Decisions and Notification” section of Publication CA-810, a formal decision regarding the closure of Lynda’s case file.
We very recently received a letter from a senior OWCP claims examiner indicating that Lynda’s claim for medical benefits in conjunction with the alleged recurrence had been disallowed. The letter conveyed the specific Notice of Decision signed by the claims examiner. The agency – deliberately, I believe – avoided making any reference to its initial decision to close Lynda’s case file, thus denying her medical benefits that had been paid for by the agency for many years. Instead, the Notice of Decision focused on the lack of medical information submitted in conjunction with the claimed recurrence – a claim that never would have been filed but for the claims examiner’s insistence that it was required to reopen the case file.
It was as if Lynda’s recurrence claim had been a bolt out of the blue rather than being dictated by OWCP. The agency, whose usual responsiveness to correspondence is, to quote a great line from the old Bob Newhart Show, “like watching a rock move,” rendered its Notice of Decision with amazing speed, particularly considering the fact that we had advised the claims examiner we would need an additional 30-60 days to gather relevant medical information since Lynda had seen so many providers. The need for additional time had gone unchallenged by the claims examiner, but was ignored in the timing of the Notice of Decision.
This whole situation brought to mind the many injured workers I talked with during my HR career who were so frustrated by their dealings with OWCP that they simply gave up on pursuing their claims. I can now understand that frustration better than ever, but I have a stubborn streak that won’t allow me to quit.
The Notice of Decision advised us that we had three options: a hearing; reconsideration; or a review by the Employees’ Compensation Appeals Board (ECAB). We are weighing those options and will be making a decision shortly.
In the interest of fairness, I will readily admit that being an OWCP claims examiner is no day at the beach. According to a September 1, 2002, GovExec.com article by Brian Friel, “OWCP’s 639 claims examiners in 12 regional offices handle 170,000 federal employee injury claims a year. The examiners process millions of forms and medical documents and answer 2 million to 3 million phone calls.”
Given that volume of work, errors are bound to occur; they just aren’t bound to be admitted. We have found that once OWCP makes a decision on a case, it is virtually impossible to get the agency to change that decision, regardless of the documentation provided to refute it. Accordingly, I will close by suggesting another possible unofficial motto for OWCP. In the classic western “She Wore a Yellow Ribbon” John Wayne’s character says, “Never apologize…it’s a sign of weakness.” This quote accurately reflects our perception of OWCP’s collective attitude in dealing with injured workers.
I will provide an update when the case has been decided. Meanwhile, I am very much interested in hearing from FedSmith.com readers about their own experiences with OWCP – good or bad.
