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PLEASE READ
We have just learned (6/8/09) that OWCP has started using the AMA Guides 6th Edition. Until we can update all of our resources please understand that wherever the AMA Guides 5th Edition is written here, just know that the AMA Guides 6th Edition is now required. PEN

SCHEDULED AWARDS

Schedule awards are for an OWCP accepted condition arising out of an on-the-job injury. The awards are generally for the permanent loss or use of a scheduled member of the body and usually not for the body as a whole.

As of July 2005 the appropriate method of evaluating the extent of any permanent impairment is found in the AMA's Guides to the Evaluation of Permanent Impairment, 5th Edition, the use of which has been approved by the OWCP. Among the elements which may be considered in determining the extent of impairment are loss of motion, pain and weakness. The element of pain may serve as the sole basis for determining the degree of impairment for schedule award purposes.

When determining a percent of impairment, the written evidence must be strong enough so that it clearly and convincingly establishes the maximum improvement that has, in fact, been reached by an established date. The report should describe and state which factors entered into the calculation of a percentage loss. It also must include that the claimant has reached MMI [maximum medical improvement]. It is best if a board certified specialist makes the determination of percentage loss. The report should be in a written narrative that includes medical rationale and evidence and signed by the board certified specialist. It must be submitted along with a completed CA-7.

The schedule award provision of the FECA (Federal Employees Compensation Act) and its implementing regulations set forth the number of weeks of compensation to be paid for permanent loss, or loss of use, of body members listed in the schedule. The Act, however, does not specify the manner in which the percentage of loss of a member shall be determined. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables to calculate schedule awards so that there may be uniform standards applicable to all claimants. The Office has adopted, and the Board has approved, the use of the American Medical Association, Guides to the Evaluation of Permanent Impairment 5th Edition, as an appropriate standard for evaluating schedule losses.

Prior to going to physician for the SA determination, put the following in a narrative letter asking him/her to describe the impairment in sufficient detail and to give the percentage evaluation in term of specific affected body member, and not to use the whole body concept. The detailed description the physician provides must include, when appropriate:

a. loss of degree of active motion of affected member. b. loss of degree of passive motion of affected member. c. amount of atrophy or deformity. d. decrease in strength or impairment, or e. other pertinent description of the impairment.

Physicians are required to use the most current AMA Guides to the Evaluation of Permanent Impairment available at time of rating the impairment. Where injuries leave objective or subjective impairments not measured by the AMA Guides the OWCP is required to consider pain, atrophy, deformity, loss of sensation, loss of strength, marked sensitivity to heat or cold and soft tissue damage (scaring, discoloration), in addition to the AMA Guides. FECA-PM 2-808-6.a(2). Richard Gioriano, 36 ECAB 484 (1989), remand to determine extent of impairment due to pain, discomfort or loss of sensation in arm.

Therefore, in addition to the AMA guidelines above, CE's (Claims Examiners) should advise any physician evaluating permanent impairment to report objective or subjective impairments which cannot easily be measured by the AMA Guides. Some examples are:

(a) Pain (b) Atrophy (c) Deformity (d) Loss of sensation (e) Loss of strength (f) Marked sensitivity to heat or cold (g) Soft tissue damage (scarring, discoloration). See FECA-PM 2-0808-6.a(2)

An amended award should be sought when you can show that you are entitled to a greater percentage of loss even after payment of the SA. An Amended SA can also be paid if you sustain an increased impairment at a later date due to work related factors. FECA-PM 2-808-7.b.

Concerning the need for an amended award, the FECA BULLETIN 01-05 states "A claimant who has received a schedule award calculated under a previous edition may later make an a claim for an increased award, which should be calculated according to the 5th edition."

Additionally, the Bulletin stated that the DMA should verify the appropriateness of the combination of lower extremity impairments in Table 17-2. This table will lower the impairment of the lower extremity. However, it is advised that the evaluator use the table which will allow for the greatest rating, despite multiple ratable abnormalities.

Plus, you can add any particular detail, that you know of, about your injury in the same letter and ask the physician to consider protecting your interest, within the law, when measuring your impairment by mentioning this detail(s).

The FECA provides for the payment of a Schedule Award. Schedule Awards are defined as an award of compensation payable for a set number of weeks for the loss or loss of use of a part of the body, whether total or partial.

The degree of impairment is established by medical evidence and expressed as a percentage loss of the member involved. Permanent impairment may originate either within the affected member (i.e., loss of use of your arm in a Carpal Tunnel Syndrome claim) or another part of the body (i.e., a back injury may result in impairment to a leg) for which a Schedule Award would be payable.

A claimant may also receive an Award for more than one part of the body concerning a single injury (i.e., a back injury may result in impairment to a leg and an arm).

The body members covered by the Schedule Award and the compensation schedule include:

Arm 312 weeks
Fourth Finger 15 weeks
Leg 288 weeks
Hearing (1 ear) 52 weeks
Hand 244 weeks
Hearing (both) 200 weeks
Foot 205 weeks
Breast 52 weeks
Eye 160 weeks
Kidney (1) 156 weeks
Thumb 75 weeks
Larynx 160 weeks
First Finger 46 weeks
Lung (1) 156 weeks
Great Toe 38 weeks
Penis/Female Sex Organs 205 weeks
Second Finger 30 weeks
Testicle/Ovary (1) 52 weeks
Third Finger 25 weeks
Tongue 160 weeks
Toe (other) 16 weeks

Note: The above figures represent total loss of use.

An injured worker should only apply for a Schedule Award after having reached maximum medical improvement (MMI) and are back to work full time (even in a limited duty capacity) or retiring. The OWCP will not pay compensation for wage loss (i.e., time in LWOP-IOD being paid by OWCP) and a Schedule Award at the same time; however, if the injury occurred on or after September 13, 1957, the Schedule Award may be paid concurrently with benefits under the U.S. Civil Service Retirement Act (OPM). In order to apply for a Schedule Award, you need to submit a CA-7.

The treating physician should be advised to use the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition, and to report findings in accordance with those guidelines. Injures sometimes leave objective or subjective impairment that cannot easily be measured by the AMA Guides. Some examples are: pain, atrophy, deformity, loss of sensation, loss of strength, marked sensitivity to heat or cold, and soft tissue damage such as scarring and discoloration. The effects of such factors should be explicitly considered along with the impairment measurable by the AMA Guides (5th Edition).

To support a Schedule Award, the file must contain competent medical evidence which:

  • Shows that the impairment has reached a permanent and fixed state (MMI) and indicates the date on which this occurred (date of maximum medical improvement).
  • Describes the impairment in sufficient detail for the Claims Examiner to visualize the character and degree of disability; and
  • Gives a percentage evaluation of the impairment (in terms of the affected member or function, not the body as a whole, except for impairment to the lungs).

The treating physician should also provide a detailed description of the impairment which includes, where applicable, the loss in degree of active and passive motion of the affected member or function, the amount of any atrophy or deformity, decreases in strength or disturbances of sensation, or other pertinent description of impairment.

Once all of the medical evidence has been submitted to OWCP, the Claims Examiner will review the file for completeness and forward the entire case file to the District Medical Advisor (DMA) for verification. If there is no conflict in medical option, you will be notified of the details concerning your Schedule Award. If there is a conflict, the Claims Examiner will schedule a second opinion or contact the physician for clarification.

Schedule Award--FECA Procedure Manual Chapters
Information on schedule awards can be found at the following:

* 5 USC 8107 * 20 CFR Part 10, Section 10.404 * 20 CFR Part 10, Section 10.422 * FECA Procedure Manual Part 2, Claims, Chapter 2-808 * FECA Procedure Manual Part 2, Claims, Chapter 2-901, Section 14 * FECA Procedure Manual Part 3, Medical, Chapter 3-700

More About a Schedule Award Payment

  • A claimant CAN NOT collect compensation for lost wages and a schedule award at the same time.
  • One exception: If the schedule award is payable due to a compensable injury that is not the one they are collecting compensation for lost wages for [2 separate claims].
  • Normally, schedule award will be paid in a lump sum if the claimant has returned to full duty [8 hours per day] or is collecting OPM.
  • In the event claimant is collecting FULL compensation for lost wages, such compensation will be suspended until the schedule award is paid in full. When schedule award is paid in full, compensation for lost wages will resume. Payment of schedule award will be in the same manner as compensation for lost wages, using the 28 day or so cycle.
  • In the event claimant is collecting PARTIAL compensation for lost wages [example 4 hour per day], such compensation will be suspended until the schedule award is paid in full. When schedule award is paid in full, partial compensation for lost wages will resume. Payment of schedule award will be in the same manner as compensation for lost wages, using the 28 day or so cycle.

For further information on payment of schedule award, see:

* 20 CFR Part 10, Section 10.404 * 20 CFR Part 10, Section 10.422 * FECA Procedure Manual Part 2, Claims, Chapter 2-808 * FECA Procedure Manual Part 3, Medical, Chapter 3-700

Referee and SECOP Doctors

In the course of your claim for a SA OWCP may send you to a SECOP (a second opinion physician) or for a Referee Examination by a Referee Physician. See notes below.

Adverse Secop

The following is for injured employees who have had their claim accepted, and are then sent to a second opinion doctor.

In the situation where the second opinion physician determines that there is no current work-related injury, the Claims Examiner has the option to immediately send a notice of intent to terminate compensation. This means that unless something is done, the comp benefits will end after thirty days, more or less.

Usually, the Claims Examiner will have written a Memorandum to the Director, explaining exactly why your claim has been denied.

In this situation, if the employee provides a copy of the Memorandum to the Director to the treating physician, and also requests the claims examiner to mail to the treating physician a copy of the second opinion doctor's report, then the treating doc has the option of writing a rebuttal to the second opinion report.

In the event that the treating physician has an opinion different from the second opinion physician, then the rebuttal report will cause what OWCP terms "a conflict of expert medical opinion." Such a situation almost always will trigger the assignment of yet another examination by a different doc.

This is called a referee physician examination.

The treating physician's rebuttal to the second opinion must be delivered to OWCP within 30 days from the date of the letter proposing termination of benefits.

If the treating physician does not submit a rebuttal to the second opinion, then the claims examiner has the option to deny the claim. If this occurs, then the employee will find all benefits stopped, yet never see a referee doctor.

What should the injured employee do? Attorneys tell me they recommend:

1. On the very day notice of a scheduled second opinion exam is received, request of your claims examiner a copy of the Statement of Accepted Facts and the list of Questions for the Second Opinion Physician be sent to you. This request can be done by telephone, fax or mail. Prudent people often use all three forms, and send all mail Certified (return receipt requested.) 2. On the very day you receive a notice of intent to terminate benefits, contact your claims examiner and request that your treating physician be provided a copy of the second opinion report, and of the Memorandum to the Director (if you do not already have the Memorandum).

3. Talk to your M D. Ask if doc disagrees with the second opinion report, and would doc be willing to write a report noting any difference of medical opinion. Can the report be done within, say, 25 days? Gently remind doc that OWCP will pay for the report. The doctor should charge the usual fee for such a report; whatever the doc normally charges is a good idea.

4. You can help your doctor by reading every sentence in the second opinion report, and writing down every error you can spot. Errors of fact are particularly helpful. The doctor should be able to find all the errors of medical knowledge, conclusion and rationale.

5. Remind your doctor that most second opinion reports contain minimal or zero discussion of medical rationale. The treating physician produces a stronger report if that fact is mentioned, and the treating doc has a strong medical rational in his or her own report.

In this situation, a discussion of medical rational would be a separate paragraph or two, and would bring out events of the employee's history, and mention how these events of history have caused or contributed to each of the following: the person's symptoms, diagnosed condition and state of being disabled.

Tell your physician that you are aware that such a report requires more writing than the usual clinical report, but that a discussion of medical rationale would certainly help you.

Be in good health.
Samuel Albert M. D. Practice Limited to Psychiatry

Refuting Adverse Secop

One way to have an adverse second opinion physician report nullified is to request your physician to prepare a report on your condition. In this report there could be a section titled "Review of medical records." In this review your doc can write about any disagreements with the report of the second opinion. This could include specific areas of disagreement about diagnosis and relationship of the condition to your work. (Samuel Albert M. D.)

Referee Doctor

5 USC 8123 does state that disagreement between a government appointed doctor and a treating doctor needs to be resolved by the appointment of a third doctor "who shall make an examination." This statute used to contain the words "any disagreement", but clearly those words are not present currently.

OWCP views referee examinations as costly and timely so they get around these by weighing the medical evidence and then determines, at least most of the time, that the government's doctor's opinion weighs more than the treating doctor's opinion. When that happens (and it happens more often than not) then there is no substantive disagreement and no need for a third doctor to be appointed.

Even though this is the case, if there is a disagreement and OWCP foes with its doctor, one should always argue on appeal that the disagreement remains unresolved and that OWCP erred in not invoking the provisions of 8123 by failing to appoint a third doctor. If you do not argue this point on appeal, it will be lost and you might not be able to bring it up in the future.

Was Your Referee Doctor  Impartial?
By Gordon Reiselt, ESQ

Under the Federal Employee Compensation Act (FECA), an injured worker has the absolute right to select any treating doctor[1] and OWCP similarly may select its own doctor[2] for any reasonable purpose. If a conflict in the medical opinions is created between the claimant’s treating doctor and a doctor appointed by the government, according to law,[3] the Secretary of Labor shall appoint a third doctor, commonly referred to as a referee. The appointment of the referee doctor is made so that the conflicting medical opinions may be resolved.[4] However, not every difference of opinion necessitates the appointment of a referee. OWCP decides if a “true” conflict exists and then sets into motion the process of appointment. In order for a referee to be appointed, the conflicting medical reports must be of virtually equal weight. Probably due in large part to expense, OWCP in general disfavors findings of conflicts and believes that most medical evidence can be resolved without resorting to a referee.[5] Once a referee is appointed and an examination is conducted, whatever the referee’s decision is, it is entitled to “special weight” if it is based upon an accurate medical history and factual background and if the referee was selected according to law. Only then is the opinion of the referee sufficient to break the tie.

Because a referee’s decision is supposed to be fair and impartial, OWCP is strictly controlled by extensive regulations on how a selection of a referee is accomplished[7]. The Employee Compensation Appeals Board[8](Board) places great importance on the appearance as well as the fact of impartially and therefore only if the selection procedures which were designed to achieve this result are scrupulously followed may the selected doctor’s opinion carry “special weight”.[9] For instance, OWCP cannot select doctors who may give the appearance of having bias. Therefore, doctors who are employed by or associated with federal agencies (i.e. doctors who perform regular fitness for duty examinations for the USPS), must be excluded. To assure that selected doctors are aware of these regulatory restrictions, OWCP has adopted language to be inserted into introductory letters when a claimant is referred for an impartial examination: ”Because this examination is being requested in accordance with a statutory provision for resolving a conflict in medical opinion, it is important that the physician have no previous connection with the claimant, and no regular association with the claimant's employing agency. If you, or a member of your professional firm, have previously attended this patient, or regularly performed fitness- for-duty examinations for the patient's employer ... please call [the Office] so that other arrangements can be made for the impartial examination."[10]

In one case the Board found that if a physician did not perform more than 3 to 4 fitness for dutyexaminations per year, that doctor would be able to serve as a referee. Presumably, anymore than four examinations in a given year would disqualify a doctor. Doctors who have had any previous connection with the claimant (i.e. doctors who have previously treated or examined a claimant) are also disqualified. The same is true for doctors who have consulted with OWCP under contract.

In order to assure impartially, qualified doctors are selected randomly in sequential order by a computer program [[11] using a claimant’s zip code.[12] This zip code is entered into the software and a cluster of qualified doctors is produced. OWCP starts with the first five in the cluster. That doctor is called and asked if he will perform the examination. If the first doctor accepts the appointment then that doctor is chosen. If the doctor declines, then the second doctor is called. Only doctors who are board certified in their respective field of expertise are eligible to act as referees.[13] If OWCP initially selects a doctor who exhibits one of the above biases[14], a claimant may be allowed to participate in the selection of another referee by filing a written after the initial appointment.[15] There are two instances when the Office will allow a claimant to participate. There must be a specific request to participate and a valid reason must be provided or when there is a valid objection to the doctor selected by the Office.[16] If OWCP agrees with the claimant’s objection regarding the selected referee, a list of three other referees will be prepared and the claimant may choose any one of the three.[17]

The Office is not permitted to ask leading questions[18] or have oral communication[19] involving any disputed issues with the impartial doctor.

A good example of what constitutes a leading question can be found in the case of Vernon E. Gaskins, 39 ECAB 746 (1988). The Office’s medical advisor responded to a report of an impartial doctor and in so doing, suggested an different conclusion and in the process, insulted the Board.[20]

Of course, there are a variety of ways that OWCP can effectively circumvent the random selection process of a referee. Review of recent case files reveal that OWCP only has documented the files with the referee chosen to perform the examination, not all of the referees that the computer program has selected. With only this evidence, there is no way to actually determine if more than one doctor was considered for selection. There is also a technique in the computer program, which allows OWCP to “bypass” any doctor that is selected. OWCP does not inform the claimant or the bypassed doctor that this has occurred. This “bypass” technique is clearly a means to disrupt the random selection process. When a bypass occurs, OWCP is instructed to enter a “bypass” code, which would indicate the reason for the “bypass”. However, one recent case file reviewed involving the selection of a referee, did definitely involve a “bypass” without a “bypass” code being used.

If a claimant has a duly appointed representative, the law states that both the claimant and the representative must receive notice of the referee appointment. If the claimant receives notice and the representative does not, the report of the referee cannot be used if it is adverse to the claimant[21] Of course, if notice is not given to the representative and the referee’s report is favorable, there is no need to raise an objection to the report.

The selection of a truly impartial referee is a complex process. It is difficult for a claimant to adequately determine if a referee was correctly chosen. Hopefully the information here will assist a claimant to recognize if the selection procedure was properly followed. A referee’s report is entitled to “special weight” and acts as a tiebreaker, only if OWCP acts in accordance with the law.

OWCP Doctor Shopping

OWCP is not allowed to "doctor shop". In some cases OWCP may be suspected of doctor shopping in order to locate a physician who will supply a ruling in their favor. There have been ECAB rulings on this issue. The case on doctor shopping is Carlton Owens, 36 ECAB 608 (1985)

Burden of Proof - Inferences and Presumptions

Where an employee claims that a condition not accepted or approved by the Office was due to an employment injury, he or she bears the burden of proof to establish that the condition is causally related to the employment injury. Jaja K. Asaramo, 55 ECAB ___ (Docket No. 03-1327, issued January 5, 2004).

The Office may not terminate compensation without establishing that the disability ceased or that it was no longer related to the employment. The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper factual and medical background. Jaja K. Asaramo, 55 ECAB - (Docket No. 03-1327, issued January 5, 2004).

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