1. *The Black Box* Understanding the Claims Adjudication Process Michael Arighi Program Analyst VA Central Office, Washington, DC

2. OWCP

3. So, what goes on at OWCP? OWCP seems a mysterious, inexplicable place where information goes in, but what comes out seems to have no connection to what went in. OWCP seems a mysterious, inexplicable place where information goes in, but what comes out seems to have no connection to what went in. So, what’s it really all about? So, what’s it really all about?

4. Functions of OWCP Claims adjudication Claims adjudication Payment of benefits for injured workers Payment of benefits for injured workers Management of cases with a view to return to work Management of cases with a view to return to work –NOT a “retirement” system

5. What is “adjudication”? Adjudication is the process of developing the evidence in a claim for workers’ compensation and making a decision on the issues in that claim. Adjudication is the process of developing the evidence in a claim for workers’ compensation and making a decision on the issues in that claim.

6. Adjudication So all claims are adjudicated in that manner? So all claims are adjudicated in that manner?

7. Adjudication No-- All Occupational Disease claims are adjudicated, as described. All Occupational Disease claims are adjudicated, as described. Traumatic Injury claims for stress and certain other conditions, or ones that meet certain other criteria are adjudicated in that manner. Traumatic Injury claims for stress and certain other conditions, or ones that meet certain other criteria are adjudicated in that manner.

8. Adjudication Most traumatic injury claims for simple injuries (ones with minimal medical treatment, no surgery, no need for wage loss compensation) are treated as Administrative Closure cases. Most traumatic injury claims for simple injuries (ones with minimal medical treatment, no surgery, no need for wage loss compensation) are treated as Administrative Closure cases. These cases are administratively accepted, as long as expenses are <$1500 and no surgery or wage loss is requested. These cases are administratively accepted, as long as expenses are <$1500 and no surgery or wage loss is requested.

9. Adjudication Note that these cases are not really “adjudicated”—or even seen--by a Claims Examiner. Unless the expenses exceed the pre-established limit or surgery or wage loss compensation is claimed, they are rarely seen Note that these cases are not really “adjudicated”—or even seen--by a Claims Examiner. Unless the expenses exceed the pre-established limit or surgery or wage loss compensation is claimed, they are rarely seen Most of these cases (90%+) return to work and never exceed $1500 in cost Most of these cases (90%+) return to work and never exceed $1500 in cost

10. Adjudication So, what about the ones that do have to be adjudicated? How does that work? So, what about the ones that do have to be adjudicated? How does that work? Let’s look at an overview, schematically, of what takes place…

11. Step 1. Claim filed Step 2. CE Review Step 3. Evidence Sufficient? No Yes Step 4. Develop Accept Deny Repeat Pay Appeals from Step 2 Benefits Process

12. Development On first review, the CE will determine whether s/he has sufficient evidence to adjudicate the case. If not, s/he will send a letter to the claimant. On first review, the CE will determine whether s/he has sufficient evidence to adjudicate the case. If not, s/he will send a letter to the claimant. If medical evidence is missing, s/he will request it. If factual evidence is missing, or there are disputed facts, further information will be requested. If medical evidence is missing, s/he will request it. If factual evidence is missing, or there are disputed facts, further information will be requested.

13. Development It is the claimant’s burden to provide all necessary evidence, except that in possession of the Agency. We must provide any relevant information we have. It is the claimant’s burden to provide all necessary evidence, except that in possession of the Agency. We must provide any relevant information we have. 20 CFR 10.115(f); 10.118(a) By the way, this may mean Occ Health records, but does NOT apply to their Veteran’s medical records

14. Development The CE will allow at least 30 days for response from the claimant. The CE will allow at least 30 days for response from the claimant. 20 CFR 10.121 Failure to allow at least 30 days before making an adverse decision is reversible error. Failure to allow at least 30 days before making an adverse decision is reversible error.

15. Where do *I* fit in? The Agency has a right—and a duty—to submit information bearing on the case. We do this during the development process. The Agency has a right—and a duty—to submit information bearing on the case. We do this during the development process. –Most of the Agency’s information is going to have to come from the person closest to the incident. Usually, that’s YOU. –Accident investigation is often a critical part of this process

16. Where do *I* fit in? You also need an understanding of what’s going on and to know what is and isn’t covered under the Federal Employees’ Compensation Act (the Act OWCP administers) in order to respond appropriately You also need an understanding of what’s going on and to know what is and isn’t covered under the Federal Employees’ Compensation Act (the Act OWCP administers) in order to respond appropriately Evidence can be submitted electronically now. Talk to your workers’ comp specialist Evidence can be submitted electronically now. Talk to your workers’ comp specialist

17. Adjudication After development of the case and allowing time for response from the claimant—or if all necessary evidence is present on initial review—the CE will make a decision on the case. After development of the case and allowing time for response from the claimant—or if all necessary evidence is present on initial review—the CE will make a decision on the case. So, what is the CE looking for?

18. Adjudication Acceptance of a claim requires satisfaction of the Five Basics: 1. Timely filing 2. Civil employee 3. Fact of injury 4. Performance of duty 5. Causal relationship

19. Adjudication The Five Basics are hierarchical and considered in order. If a claim fails at an early level, later levels are not even considered. The Five Basics are hierarchical and considered in order. If a claim fails at an early level, later levels are not even considered. Example: Whether an injury occurred and whether a condition is related are irrelevant, if the claim is not timely filed. Example: Whether an injury occurred and whether a condition is related are irrelevant, if the claim is not timely filed. Let’s look at the Basics in greater detail:

20. Timely Filing Timely Filing

21. Timely filing The Act (5 USC 8122) sets time limits for the filing of a claim. These are explained in somewhat greater detail in the Regs, 20 CFR 10.100-10.105 and in the FECA PM, in PM 2-801.

22. Timely filing For claims after 9/7/74, must be filed within 3 years of-- For claims after 9/7/74, must be filed within 3 years of-- Date of injury Date of injury Date of first awareness/should have been aware Date of first awareness/should have been aware Date of last exposure/retirement Date of last exposure/retirement

23. Timely filing Exception: If the Agency had “actual knowledge” of the injury in the first 30 days, and that knowledge was such as to put the Agency on notice that there had been a work-related injury, the time requirement is met. Exception: If the Agency had “actual knowledge” of the injury in the first 30 days, and that knowledge was such as to put the Agency on notice that there had been a work-related injury, the time requirement is met. 20 CFR 10.100(b)(1) Examples: Evidence of “actual knowledge” might be an Agency health unit’s medical report from the time of the injury, or reports of monitoring under an Agency monitoring program (hearing, asbestos, etc).

24. Civil Employee Civil Employee

25. Civil employee Civil employee—Rules Civil employee—Rules The definitions of an “employee” are in the Act at 5 USC 8101(1). Additional guidance is at PM 2-802, in various Program Memoranda, and in decisions of the Employees’ Compensation Appeals Board (the ECAB).

26. Civil employee Usually, the question is easily answered, but there can be “borderline” cases, for example: LEOs (non-Federal law officers) LEOs (non-Federal law officers) Volunteers (VA volunteers, WOCs, YCC, Job Corps) Volunteers (VA volunteers, WOCs, YCC, Job Corps) Contractors Contractors

27. Civil employee Decisions in “borderline” cases are often significantly more difficult. Issues involved (and you may need to help with these) may be statutory authority to accept the services, extent of actual control or supervision of a contractor, activity actually engaged in when injured and its relationship to the Federal government. Decisions in “borderline” cases are often significantly more difficult. Issues involved (and you may need to help with these) may be statutory authority to accept the services, extent of actual control or supervision of a contractor, activity actually engaged in when injured and its relationship to the Federal government.

28. Fact of Injury Fact of Injury

29. Fact of Injury Claimant’s burden to support, with evidence, the two parts to fact of injury: Claimant’s burden to support, with evidence, the two parts to fact of injury: 1) Medical and 1) Medical and 2) Factual 2) Factual

30. Fact of Injury Medical—Does a medical condition exist? Medical—Does a medical condition exist? Factual—Did an injury event occur? Factual—Did an injury event occur? Note: There does not need to be a connection between these at this point. That issue is addressed at causal relation.

31. Performance of Duty Performance of Duty

32. Performance of Duty In order to be compensable under the Act, an injury must arise “out of, and in the course of, employment.” In order to be compensable under the Act, an injury must arise “out of, and in the course of, employment.” Two tests: “in the course of employment” generally means while the employee is at work. “Out of employment” means that something about the work or workplace led to the injury. Two tests: “in the course of employment” generally means while the employee is at work. “Out of employment” means that something about the work or workplace led to the injury. Must meet both tests. Must meet both tests.

33. Performance of Duty Premises Premises - fixed place of employment Recreation Recreation - formally organized Union Duties Union Duties - representational activity covered Horseplay Horseplay - if together for periods of time Personal comfort doctrine Personal comfort doctrine To & From Work To & From Work - not usually covered “going and coming rule” Misconduct Misconduct - violating safety rule or laws - negligence not enough Intoxication Intoxication - by drug or alcohol - must be the “proximate cause” of injury-we’ll look at this in more detail later

34. Performance of Duty-some issues Idiopathic Falls Idiopathic Falls – known, non-work-related, pathology – intervening object Unexplained Fall Unexplained Fall – Unknown etiology Travel Status Travel Status – reasonably incidental and NOT a… Diversion from Duty Diversion from Duty Assault Cases Assault Cases Coworker Harassment or Teasing Coworker Harassment or Teasing

35. Causal Relationship Causal Relationship

36. Causal relationship This is the link between the work-related injury or exposure and the medical condition being claimed. There are four types of causal relationship-- direct cause direct cause aggravation aggravation acceleration acceleration precipitation precipitation

37. Causal relationship Unlike the other four of the Five Basics, causal relationship is not a one-time thing. The claimant must show that it continues throughout the life of the claim. Unlike the other four of the Five Basics, causal relationship is not a one-time thing. The claimant must show that it continues throughout the life of the claim. Compensation continues as long as there continues to be disability for work (total or partial) that is causally related to the work injury. Compensation continues as long as there continues to be disability for work (total or partial) that is causally related to the work injury.

38. Causal relationship In order to terminate compensation, the Office (OWCP) must show, with the weight of rationalized medical evidence, that causal relationship has ceased. In order to terminate compensation, the Office (OWCP) must show, with the weight of rationalized medical evidence, that causal relationship has ceased.

39. Continuation of Pay

40. Where the Agency controverts payment of Continuation of Pay (COP), OWCP must review the case and make a decision whether COP should be paid. Where the Agency controverts payment of Continuation of Pay (COP), OWCP must review the case and make a decision whether COP should be paid. Their decision must be based on the written evidence in the case, and the Agency and claimant (and rep, if there is one) informed of the decision. Their decision must be based on the written evidence in the case, and the Agency and claimant (and rep, if there is one) informed of the decision. 20 CFR 10.119

41. Continuation of Pay The CE must consider the arguments and evidence presented by both sides. The decision is made on the basis of: The CE must consider the arguments and evidence presented by both sides. The decision is made on the basis of: Clear and convincing quality of the evidence and arguments, Clear and convincing quality of the evidence and arguments, Regulatory guidance at 20 CFR 10.220 Regulatory guidance at 20 CFR 10.220

42. POP QUIZ! What are the 7 acceptable reasons for controversion of COP? What are the 7 acceptable reasons for controversion of COP?

43. COP 1. Disability not caused by traumatic injury 2. Not a citizen or resident of US or Canada 3. No written claim within 30 days 4. Injury not reported prior to termination of employment 5. Injury occurred off premises and not in POD

44. COP 6. Injury caused by willful misconduct, intent to injure or kill self or other(s), or due to intoxication by illegal drugs or alcohol (performance of duty, right?) 7. Work did not stop until more than 45 days after injury 20 CFR 10.220

45. COP Evidence needed to prove each varies, depending on what you have to prove. Evidence needed to prove each varies, depending on what you have to prove. It is relatively straightforward to prove citizenship, claim filing, termination of employment or work stoppage. It is relatively straightforward to prove citizenship, claim filing, termination of employment or work stoppage. –Documentary evidence

46. COP That an injury is an occupational disease, not a traumatic injury, usually will rest on history and the medical evidence That an injury is an occupational disease, not a traumatic injury, usually will rest on history and the medical evidence Proving that an injury was off-premises and not work-connected may be easy or difficult—submit whatever documents, witness statements, or the like you have or can obtain Proving that an injury was off-premises and not work-connected may be easy or difficult—submit whatever documents, witness statements, or the like you have or can obtain

47. COP Proving willful misconduct, intent to injure or kill, or intoxication is usually extremely difficult. Proving willful misconduct, intent to injure or kill, or intoxication is usually extremely difficult. –“Intent” or “willfulness” is inherently difficult to prove –Carelessness ≠ “willfulness”

48. COP Intoxication: Provide all evidence you can—witness statements, police reports, tox screen results, etc. Intoxication: Provide all evidence you can—witness statements, police reports, tox screen results, etc. Intoxication ≠ causation Intoxication ≠ causation Need to prove BOTH that the person WAS “intoxicated” (by drugs or alcohol) AND that it was the intoxication that caused the injury. Tough standard (and intended to be) Need to prove BOTH that the person WAS “intoxicated” (by drugs or alcohol) AND that it was the intoxication that caused the injury. Tough standard (and intended to be)

49. COP Willful misconduct, intent to injure, and intoxication are considered total “bars” to compensation. The issues must be raised as soon as you are aware they may apply, as they are supposed to be raised by the Office (OWCP) at the time of initial adjudication. Willful misconduct, intent to injure, and intoxication are considered total “bars” to compensation. The issues must be raised as soon as you are aware they may apply, as they are supposed to be raised by the Office (OWCP) at the time of initial adjudication.

50. Disputing claims As with controversions of COP, the CE looks for clear, convincing evidence to support any disputes you have with the claim. As with controversions of COP, the CE looks for clear, convincing evidence to support any disputes you have with the claim. If you have documentation, send it in. If you have documentation, send it in. If you have witness statements, send them in. If you have witness statements, send them in.

51. Disputing claims Build a good reputation with your local Office(s). If you dispute every claim and never provide more than vague statements or “mushy” evidence, you will lose most of the time. Build a good reputation with your local Office(s). If you dispute every claim and never provide more than vague statements or “mushy” evidence, you will lose most of the time. If you dispute only selectively and provide decent evidence, you will win. If you dispute only selectively and provide decent evidence, you will win.

52. Disputes The key is to remember that CEs are busy and don’t like to feel like their time has been wasted. The key is to remember that CEs are busy and don’t like to feel like their time has been wasted.

53. Questions?

54. Contact Information Michael Arighi Program Analyst, VACO Office of Occupational Safety and Health michael.arighi@va.gov