Steven E. Brown, a Professional Law Corporation

The fact that your claim for a work-related injury has been accepted by the Office of Workers Compensation Programs (OWCP) does not automatically entitle you to money. Before you can get paid you must prove that your work-related injury prevents you from doing your job. The most important thing you will need to provide to OWCP in order to get paid for missing work is a medical report from your treating physician. If your work injury prevents you from doing your job, you will be considered either ‘temporarily partially disabled,’ in which case your employing agency will be given an opportunity to offer you modified duty within your work  restrictions, or ‘temporarily totally disabled.’

Most injured workers are not completely bed-ridden and OWCP is aware of that fact. When a report is submitted stating that an injured worker is totally disabled, unless the medical condition is obviously severe (stroke, heart attack, etc), a general statement of ‘total disability’ is likely to trigger healthy skepticism with the OWCP claims examiner that is controlling your claim. This is especially true when the work-related injury affects only one extremity. For example, it is a perfectly reasonable for the claims examiner to question why a broken leg prevents an injured worker from doing sedentary work. Though a broken leg will likely prevent a mail carrier from delivering mail, that carrier may be able to perform light duty, such as answering phones or sorting mail.

Keep in mind that once OWCP has accepted a claim, it is the job of an OWCP claims examiner to return the injured worker to some form of productive employment. A claims examiner’s skepticism that you are ‘totally disabled’ will often result in a second opinion examination or a denial of your claim based on insufficient evidence proving that you are not capable of any work. Second opinion examinations are similar to personal injury defense medical exams in that they rarely result in a positive outcome for the injured worker and therefore should be avoided whenever possible. The best way to avoid the scheduling of a second opinion exam is to provide OWCP with detailed medical evidence so that it has no need to inquire further about your condition.

It is quite common for doctors to submit reports that simply list an injured worker as ‘totally disabled.’ Many times, upon further inquiry, the doctor explains that by ‘totally disabled’ he means to say that the injured worker is not capable of performing his job. Under FECA, for an employee to receive compensation for disability, he must be unable to perform in his position of record and the agency must not offer him an alternative light duty position within his physical or mental capabilities.

It is far more beneficial to have your doctor to provide detailed work restrictions, no matter how severe those restrictions are, than it is for your doctor to simply state you are totally disabled. This is true even if you believe you are not capable of performing any productive work. If your injury clearly prevents you from working at your regular job, the provision of detailed work restrictions will cause OWCP put the burden onto your employing agency to offer you light duty within the stated restrictions. If your employing agency does not, you will almost always be paid compensation for your lost wages.

While it may seem more advantageous to your receipt of benefits for your doctor to state you are totally disabled it is not. The statement by a physician that an injured worker is totally disabled is a giant red flag to the OWCP claims examiner that is handling your case. A statement that you are totally disabled may also cause problems, including allegations of fraud, if you are observed doing any sort of physical activity outside of the work place while receiving benefits whereas there is no problem if you are ‘caught’ performing activities that are within stated restrictions.

The OWCP has a form for listing work restrictions called an OWCP-5 form. There are variations of this form depending on whether the injury is psychiatric/psychological (owcp-5a), cardiovascular/pulmonary (owcp-5b), or musculoskeletal (owcp-5c) in nature. It is critical that you ask your doctor to complete one of these forms in as much detail as possible. The forms can be downloaded from the Department of Labor’s website:
http://www.dol.gov/esa/owcp/dfec/regs/compliance/forms.htm

The form by itself is not sufficient evidence of your doctor’s recommended work restrictions. The doctor must also explain why he or she has imposed the specific restrictions and how the restrictions are necessitated by your accepted work-related condition. Please note that restrictions based on the fear of future injury, called ‘prophylactic restrictions,’ are not considered by OWCP in determining your right to wage-loss compensation. Rather, the restrictions must be based on the limitations currently caused by your injury such as severe pain, weakness, restricted range of motion, etc.

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The above article was prepared by Daniel M. Goodkin, an associate attorney at the firm of Steven E. Brown, A Professional Law Corporation, Westlake Village, CA. Mr. Brown and his firm’s attorneys have more than 40 years of collective experience representing federal employees, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints. Mr. Brown has lectured before various groups on these and related topics for the past several years. The firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public. The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.