What to do when the Department of Labor wants to terminate your claim
One of the most significant things we are seeing recently in federal worker’s compensation is the notice of proposed termination. This is when the Department of Labor decides that all conditions from your accident are resolved and moves forward with ending all your money and medical benefits. When you receive one you will have just 30 days to respond. There will be signs however that the notice is coming that an experienced federal worker’s compensation attorney will spot.
The first step the Department of Labor will do in terminating your benefits is schedule you for a second opinion (SECOP). They will not tell you the purpose of the second opinion. You know by now that you have to attend the second opinion.
The Department of Labor will have sent the second opinion doctor a statement of accepted facts (SOAF) along with a list of questions to answer. One of those questions will ask if the residuals from the work injury has resolved. If the doctor answers yes, then the Department of Labor will use that response to cut-off your benefits.
The second opinion doctor usually prepares a report shortly after the examination and sends it to the claims examiner. Frequently we see the claims examiner will have the report for many months before she sends it to you along with the notice of proposed termination. This means the claims examiner has had evidence against you and is working behind the scenes to build the case to terminate your benefits. The claims examiner after having held on to the report for six to nine months will send it to you and tell you that you have just 30 days to respond otherwise your benefits will be cut off. What do you do now?
If you do not have a lawyer, you should hire one immediately. The report of the SECOP will have to be attacked. It should immediately be provided to your treating doctor to comment on. In cases I am involved in, I will schedule a phone conference with the treating doctor to let him know what the Department of Labor is doing. We will also discuss what he needs to put in his report. We will also discuss if diagnostic testing will be beneficial. This is significant. New diagnostic testing that the SECOP has not seen or reviewed will help establish that the opinion of the treating doctor should take precedence over the SECOP doctor.
We will order a copy of your file from the Department of Labor. The SOAF will be part of the claims file. This will likely be the first time you have seen the SOAF as it is usually not provided to the injured worker with the notice of termination.
There will be a little problem about your file however. The Department of Labor has 30 days to send a copy of your file from the time they receive a written request. You can see the problem. The claims examiner has told you that you must respond to their notice within 30 days. They do not give extensions to these 30 days. You can ask for your file sooner than the 30 days, but DOL rarely complies with this request. These means that the 30 days to respond to the notice would likely have expired before you receive the copy of your claims file. If I am on the claim, I will send a request for the file as soon as we receive the scheduling of the SECOP. We will send out another request after the SECOP is done. This way we can hopefully get the SOAF, SECOP questions and SECOP reports sooner than the six to nine months the claims examiner will hold on to it when there is no request.
The SOAF and the questions to the SECOP will allow for a legal challenge to the notice of proposed termination. If the SOAF is inaccurate that is a basis for arguing that the opinions of the SECOP are invalid. A recent decision by the Employees Compensation Appeal Board has made the questions asked of the SECOP very significant. In N.C. and Department of Navy, the appeals board stated a SOAF that fails to accurately discuss the accepted conditions is invalid and the SECOP report relying on that SOAF is also invalid. What we frequently see is the claims examiner slanting the SOAF to reach a desired result, i.e. terminating benefits. ECAB is now saying such a practice is inappropriate.
We will prepare a response to the notice of proposed termination that includes the report from the treating doctor attacking the SECOP report, your affidavit and legal argument attacking the notice. Why your affidavit? The SECOP in his report will invariably say one of two things to justify termination of benefits. He will say you are having no problems from your work injury or that you have a pre-existing condition and have returned to how you were before your work injury. The affidavit will say that you are still in pain, that your pain has not resolved since your injury and that you are worse than you were before your injury. The DOL has probably told you that pain is not compensable. This is not true. Pain is compensable when supported by objective findings. We will need your treating doctor to list those objective findings. Items such as restriction in range of motion and muscle spasms are objective findings.
Your affidavit can also be used to contrast the physical examination from the SECOP physician versus that from your treating doctor. We have found the examination from the SECOP physician is often very limited, lasting only ten minutes. The treating doctor will have done a 30-minute examination which is more detailed in range of motion testing.
The affidavit can also discuss job factors if appropriate. Are you still on light duty? Are you able to perform the job? Do you work with pain? These items are relevant to show that you have not healed from your work injury.
All of this done. A very good response is sent in to the claims examiner. She ignores it and terminates your benefits anyway. What do you do now? Well, you need to appeal. We will discuss your appeal options and the best avenue to pursue in an upcoming blog post.