In an article published in FedSmith.com
on October 4, I wrote about the most recent negative encounter my wife, Lynda, had with the Office of Workers’ Compensation Programs (OWCP), and said I would write again when her case had been decided. Well, it hasn’t been decided yet, so please consider this to be an interim update.
Since the first article, I’ve written to a claims examiner, a senior claims examiner, the district director, and the regional director about the case. The total number of responses I have received is – let me add them up carefully – zero. Lynda’s case was opened by OWCP in April 1991 when she was injured in an on-the-job car accident, and continued to be open until a case examiner closed it on July 18, 2008, a decision which is at the heart of our dispute with the agency. The very few responses we have received from OWCP since the case file closure came to our attention early in 2009 have attempted to change the questions that we asked and then to answer their restated questions. I call this the Condoleezza Rice strategy, which the then-National Security Advisor employed effectively while being questioned by the 9/11 Commission.
As for the numerous non-responses to my correspondence, why, besides the fact that they are very tired of dealing with me, or, more accurately, of avoiding me, won’t any of the OWCP officials respond? I think the answer is because they don’t have to –it is my belief that the biggest single flaw, in an astonishingly flawed system, is that injured Federal workers face a “closed loop” system in which they can never appeal an adverse decision beyond the Department of Labor.
If injured workers could, for example, appeal adverse OWCP/DOL decisions to the Court of Appeals for the Federal Circuit, or even to the Merit Systems Protection Board (MSPB), I think the agency would be much more responsive to injured workers and their representatives, and would be far more careful in their decisions, and in citing the statutory and/or regulatory rationale for those decisions. That would require a change in the current law, which would obviously be difficult to do, but not impossible.
My immediate objective is the same as it was at the start of this unsolicited adventure —to get my wife’s case file reopened and her medical benefits and reimbursements restored. However, I think OWCP is so dysfunctional (e.g., when we talked to a new physician, a specialist, about Lynda’s case recently, the first thing he said, with no prompting from us, was that “OWCP loses the documentation at least the first three times you send it to them.”) that my longer-term, perhaps far longer, objective is to change the system.
As I mentioned in the earlier article, I think the job of an OWCP claims examiner is a tough one, and it is possible that the people we have been dealing with are simply overwhelmed by the workload. However, based on the nature of those responses that we have received, I think there are also case examiners who are inadequately trained, incompetent or just plain lazy. I have the uncomfortable feeling that I am now more familiar with the relevant law and regulations than some of the OWCP claims examiners.
The first article received 80 comments on the FedSmith.com website and well over 20 people sent e-mails directly to me. Most of the folks who made comments or wrote to me were injured/ill Federal workers. I heard not only from former nuclear workers at Rocky Flats Nuclear Weapons Plant, whose situation I commented on in the first article, but also from workers who were injured in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, and even from some who had been injured in the 9/11 terrorist attacks on the World Trade Center. The recurring theme of most of the comments and e-mails was despair and frustration – the injured and/or ill workers had been beaten down by the whole OWCP process. I think that a panel consisting of individuals injured in such high-profile situations could make for very interesting Congressional hearings.
I realize that, unfortunately, there are people who attempt to cheat the OWCP system – such as a person who claims to need a wheelchair to get around at all but is then photographed dancing up a storm in his home, with no wheelchair in sight. I think OWCP has not just the right but the responsibility to stop that from happening, since all of us taxpayers pay the price when someone falsifies a claim. However, I believe that far more workers have been cheated by the system than have attempted to cheat the system.
In closing, I would note that, with regard to Lynda’s specific case, we filed a timely request for an oral hearing and received a written acknowledgement to that effect from the Chief, Branch of Hearings and Review, indicating that the oral hearing, if the case were deemed ready for one, would likely take place within the next six months. The letter stated that we could “request the subpoena of witnesses for attendance and testimony at the hearing, or of records, correspondence or other documents” within 60 days of the original request for hearing.
We did that, asking that subpoenas be issued to the two claims examiners who have been involved with the decision to close Lynda’s case file, the senior claims examiner, the district director and the regional director. We also requested the subpoena of all relevant OWCP records, correspondence or other documents dating back to March 1, 1999. One of the lessons we learned early on in dealing with OWCP is to ALWAYS send correspondence to OWCP via certified mail, to prevent the agency from being able to offer a “plausible deniability” defense regarding its receipt of such correspondence. It should be very interesting to see how the Chief, Branch of Hearings and Review, responds to that request.
If we lose at the oral hearing stage, we’ll appeal to the Employees’ Compensation Appeals Board (ECAB), which is also an arm of the Department of Labor. But, win or lose, I will push as hard as I can for injured/ill Federal workers to have an appeal channel outside the agency. Without that, they will always be at the mercy of OWCP/DOL, which is the equivalent of betting against the “house” in Las Vegas, meaning that the odds are not in their favor.