Law Office Notes of James R. Linehan PC

ECAB FINDS OWCP HAS DIFFERENT RULES OF TIMELINESS

noreply@blogger.com (Jim Linehan) — Tue, 10 Jan 2012 09:23:04 PST

DEPENDING ON APPEAL FILED, CLAIMANTS MUST EITHER SHOW THE OWCP TIMELY RECEIVED THE APPEAL OR THAT THE APPEAL WAS TIMELY MAILED

According to 20 CFR 10.607, the OWCP changed the rules for filing requests for reconsiderations.
Now a claimant must show that the OWCP "received" the request before the one year deadline. The claimant bears the to show proof of receipt.
However a different rule applies for request for hearing.
According to ECAB, the claimant must only show that he or she sent the request within 30 days of the decision appealed. Whether or not the Board "receives" the appeal is not the problem of the claimant (who needs only to show a postmark mailing) but of the OWCP to show evidence of the date of mailing.

ECAB REMANDS FED COMP DECISION AS OWCP APPEARED CONFUSED

noreply@blogger.com (Jim Linehan) — Tue, 10 Jan 2012 08:59:55 PST

Interesting federal workers compensation appeal in that the ECAB reversed and remanded a decision of denial by the OWCP as the latter appeared confused in its decision.
Here the claimant filed a request for reconsideration out of time with the OWCP. The OWCP reviewed the merits of his request and denied modification as there was no "clear evidence of error shown by the claimant." But then the OWCP listed various documents it reviewed on the reconsideration request, found that the evidence was new, but chose not to modify its prior denial.
The ECAB held that the OWCP was confused by applying two standards of review to one case.
A request for reconsideration that is submitted out of time looks only for "clear evidence of error".
But if the reconsideration is timely submitted (As OWCP indicated here) then the OWCP looks at whether the claimant has submitted new evidence, advanced a relevant new legal argument, or demonstrated that the OWCP erroneously applied or interpreted a specific point of law.
Two different standards of review.
Additionally the ECAB found the OWCP's decision lacking as it did not contain findings of fact and a statement of reasons. "The mere recitation of the dates of various medical reports and statements will not suffice for purposes of determining whether [the claimant] is entitled to further merit review of his claim for a schedule award."

FEDERAL WORKERS' COMPENSATION OVERRULES OWN DENIALS; AWARDS BENEFITS

noreply@blogger.com (Jim Linehan) — Mon, 02 Jan 2012 08:31:02 PST

In this claim for federal workers' compensation benefits from the USDOL "Office of Workers' Compensation Programs" (OWCP), the client had filed a claim for an on the job injury to her back due to improper work placement. The OWCP repeatedly denied her claim finding that the client had failed to provide medical evidence of injury and provided no witnesses to any injury.

The client rightfully continued with her appeal to the OWCP. On appeal we argued that per the OWCP's own case decisions, an on the job injury in the federal workplace does not have to be confirmed by eyewitnesses in order to establish that the work incident had indeed occurred.

In fact, we showed that per the OWCP's own internal reports and experts, this left-handed client was admittedly wrongly placed by the federal employer into a right-handed work station causing her to literally work in a hunched, backward position.

And despite contentions by the government that the workstation had been ergonomically designed, we showed that the federal agency own records revealed that no ergonomic training had been provided to the client.

As regards any alleged lack of medical evidence of injury we showed the claimant had properly and dutifully submitted years of medical treatment reports that the OWCP had simply and wrongly ignored. We argued on appeal that the OWCP cannot simply ignore the medical evidence of record and then claim that no injury occurred due to lack of medical evidence.

These arguments on appeal were successful and that USDOL OWCP reversed its prior decisions denying her claim for federal worker's compensation and awarded her full benefits

DENIAL OF FEDERAL MEDICAL DISABILITY RETIREMENT CLAIM RESCINDED

noreply@blogger.com (Jim Linehan) — Mon, 02 Jan 2012 08:30:12 PST

In this federal disability retirement claim, the client had applied for medical disability retirement under the Federal Employees Retirement System (FERS). She alleged that she was no longer capable of working at her federal job due to severe mental and physical disorders. In fact her federal employer agency agreed that she could no longer do her job and that accommodation or reassignment of her to other work was not possible.

And once again the federal system continued to deny her claim for disability retirement benefits.

However she also stuck with her claim and continued her appeal up to the Merit System Protection Board asking for a hearing before an Administrative Judge.

There we obtained and provided medical evidence from her doctors showing that the client was not able to function in a workplace environment. We also obtained and provided a vocational evaluation that showed, after thorough testing, the client would not be able to work in her federal job nor at any other job due to her severe impairments.

Upon filing this evidence and then waiting until the eve of hearing, the federal agency quickly issued a statement agreeing that the client was entitled to her medical disability retirement benefits and rescinded in full their prior history of denials on her claim without further comment. The MSPB promptly ordered award and payment of benefits.

FEDERAL COURT RECOMMENDS THAT SOCIAL SECURITY JUDGE'S DENIAL OF DISABILITY BENEFITS BE OVERRULED

noreply@blogger.com (Jim Linehan) — Mon, 02 Jan 2012 08:29:08 PST

According to the SSA itself, the vast majority of SSA disability claims are wrongly denied by SSA clerical staff workers.

People who apply for social security disability benefits are well advised to stay with their disability claims despite being denied on their claims by the Social Security Administration.

The SSA's own published statistics show as follows:

If you are just now applying for social security disability benefits, the SSA clerical staff will deny your claim 75% of the time. Thus for every 4 new disability claims filed in the US, the SSA clerical staff will deny 3 of them.

If you appeal that denial, the SSA clerical staff will deny 93% of those appeals.

However, if you hang in there and appeal that denial and ask for a hearing before a SSA Judge, there is a huge turnaround in statistics. By asking for a hearing in front of a SSA Judge, on average, 2 out of 3 claims (66.6% of those previously denied claims) for disability will now be approved and awarded.

And at the federal court level, more than 50% or 1 out of every 2 SSA decisions are overturned as having been wrongly decided by the SSA clerks and judges.

This was precisely the lesson learned by a client who decided not to give up on his disability claims even though he had been repeatedly denied on his claim by SSA clerical staff workers and eventually a SSA Administrative Law Judge (ALJ).

In this client's case; he had applied for disability claiming that severe mental problems prevented him from doing any work. The SSA clerks as expected repeatedly denied his claim. The SSA ALJ Judge also denied his claim saying that although the client was disabled due to severe mental problems, he was not entitled to any disability benefits as the client was an alcoholic. The problem was that the SSA ALJ never provided any substantial evidence to support his finding that the client's severe mental impairments were due to alcohol abuse. That was what we argued to the federal court on appeal and the federal court agreed. The federal court found that where there is evidence of severe mental impairments that disable a person and there is evidence of drug or alcohol abuse, the SSA ALJ bears the burden to separate the two diseases to determine their full impact effect on a claimant's ability to work or not work. Here the ALJ did not bother to separate the client's admittedly severe mental impairments from the effects of any alleged alcohol abuse. The federal court recommended the SSA ALJ's decision to deny benefits be overturned and the case returned to the SSA for re-hearing.

FEDERAL AGENCY WEBSITES ARE A NIGHTMARE

noreply@blogger.com (Jim Linehan) — Wed, 21 Dec 2011 07:08:30 PST

FEDERAL AGENCY WEBSITES ARE A COMPLETE MESS ACCORDING TO GOVERNMENT OVERSIGHT REVIEW

There are 56 "large" federal agencies in the United States.
All of them are present on the internet.
One would think that with 56 agencies, they would each have their own website, thus there would be 56 websites to manage, correct?

Not quite.

For these 56 largest federal agencies alone, there are more than 11,000 websites and 1,400 domain names.

That is right, for 56 government agencies, there are more than 11,000 websites.

None of the websites have any single theme, none have any central oversight or control and virtually all of them lack any consistent monitoring.

For American citizens trying to find simple information from or about a specific federal agency that can be a literal nightmare.

SOCIAL SECURITY JUDGES POST THEIR VIEWS ABOUT SSA CLAIMANTS

noreply@blogger.com (Jim Linehan) — Tue, 20 Dec 2011 15:17:43 PST

PUBLIC POSTINGS BY SOCIAL SECURITY JUDGES GIVES EYE-OPENING VIEW OF HOW THEY REALLY VIEW DISABILITY CLAIMANTS

Ever wonder, as a disabled person applying for social security disability benefits, just how do social security judges really view and feel about disability claimants, their representatives and the entire social security process? Do the social security judges, who are appointed for life, view disabled claimants with compassion and seek to do the best for social security disability claimants? Or do they openly discuss and view disabled Americans in a completely different light? You can read their Internet postings here and judge for yourselves how impartial, or not, they may be. You may very well be quite surprised at what you read as being posted on the Internet by social security judges and their views of disabled claimants.

http://aljdiscussion.proboards.com/index.cgi?board=general&action=display&thread=1858

SSA MAKES SSA JUDGES IDENTITY SECRET

noreply@blogger.com (Jim Linehan) — Thu, 15 Dec 2011 12:20:28 PST

SOCIAL SECURITY ADMINISTRATION TELLS DISABLED CLAIMANTS THEY WILL NO LONGER BE ALLOWED TO SEE WHO THEIR SSA JUDGE WILL BE BEFORE THEIR HEARING

In deliberate attempt to prevent disabled Americans from learning who will be their judge at their social security disability hearing, the SSA has announced a new rule that neither the claimant or their attorney will be allowed to see who their judge is until they walk into the hearing.

In the past couple of years, after keeping the information secret, the SSA was ordered to start publishing the case rates for SSA offices and SSA Judges nationwide. Those now public win-loss rates for SSA Judges not only reveal how many cases a SSA Judge has ruled on in the past year, but how many were denied or awarded. Additionally the tables show which Judges lag far behind in their case and which SSA offices also lag behind in deciding disability claims. Those tables are available to see here.
The SSA and the Judges (who are appointed for life and literally cannot be removed from their jobs) obviously did not like this secret information being revealed to the public.This secrecy ruling is likely due as well to a Wall Street Journal article appearing earlier this year showing how inconsistent SSA Judges are in their decision making. Despite the SSA rules being the same across the country for everyone, thus similar cases should all have the same outcome, SSA judge's vary wildly in their decision such that more than one out of two SSA Judges' decision are reversed on later federal court appeals.
So after being ordered by Federal Courts to release the "win-loss" rates handed out on disability claims by SSA Judges; which the SSA had kept secret for decades, the SSA has decided to thumb its nose at the federal courts and the American public and that secrecy still remain the rule at the SSA.
In what can only be described as a deliberate attempt to step around these orders releasing SSA case rates to the public, the SSA has issued a notice that imposes a secrecy rule on upcoming hearings. Disabled claimants and their attorneys will not be permitted to learn who their assigned SSA judge until they sit down at their disability hearing. Disability claimants and their attorneys will literally be walking blind into SSA hearings without being able to know which Judge is on their case and how that judge will process the claim.

WHAT ARE THE SSA STATISTICS ON WINNING MY DISABILITY CLAIM?

noreply@blogger.com (Jim Linehan) — Wed, 14 Dec 2011 08:35:33 PST

SSA PUBLISHES ANNUAL STATISTICS ON AWARDS AND DENIALS OF DISABILITY CLAIMS ACROSS THE NATION

The more you appeal the better your chance of success

The Social Security Administration keeps track of all disability claims filed in the country and breaks those down into numbers of claims filed, denied, awarded, etc. Even more so the SSA breaks claims down into state by state regions, ages of claimants, diseases claims as disabilities, etc.
But the overall statistics remain pretty much the same.
If you are just now applying for social security disability benefits, the SSA will deny your claim 75% of the time. Thus for every 4 new disability claims filed in the US, the SSA will deny 3 of them.
If you appeal that denial, the SSA will deny 93% of those appeals.
However, if you hang in there and appeal that denial and ask for a hearing before a SSA Judge, there is a huge turnaround in statistics. By asking for a hearing in front of a SSA Judge, on average, 2 out of 3 claims for disability will now be approved and awarded.

Lesson learned: in filing for social security disability the SSA highly discourages claimants from proceeding with their claims by denying up to 93% of the claims. However, by simply hanging in there and continuing to appeal, the chances turn around in your favor such that 2 out of 3 claims are awarded. Keep filing your appeals in any SSA disability claim!

VA Ratings Examiners: 85% Accuracy is Good Enough

noreply@blogger.com (Jim Linehan) — Tue, 13 Dec 2011 05:51:55 PST

FOR INJURED AND ILL VETERANS, THE VA SAYS THAT 85% ACCURACY IN THEIR DISABILITY RATINGS IS...... GOOD ENOUGH.

Injured and ill returning veterans of war desrve to be compensated for their service connected disabilities. To do so, they submit their claims to VA ratings examiners who then are supposed to provide an accurate rating of their service connected injuries for which the veteran and his family will then received deserved and much needed compensation.

One would think that the VA charged with caring for and compensating its injured and ill veterans would strive for the highest competency and accuracy in their ratings.

Well........not exactly.

100% accuracy? No.

95% accuracy? No.

90% accuracy where 1 out of every 10 ratings is inaccurate?

85% accuracy in service connected disability rating for US Veterans of war is good enough according to the VA.

In the case of Fisher vs. VA, Mr. Fisher was employed by the VA as a ratings specialist; the very person assigned to provide accurate ratings of compensation for returning injured and ill veterans of war. Mr. Fisher was suing the VA as the VA, his employer, had fired him. According to the VA, Mr. Fisher's work production as a disability ratings specialist had falled below acceptable levels of performance. Mr. Fisher, represented by the AFGE federal employees union argued that his firing was unjustified because the performance level demanded by the VA for its service connected disability ratings specialists, such as Mr. Fisher, was "unreasonable" and too high.

What was this "unreasonable" performance level of accuracy demanded by the VA for its ratings of VA disability claims?

Only 85%.

More than 1 out of every 10 claims submitted by injured US veterans could be inaccurate, but that would be "reasonable" and good enough according to the VA.

Oh yes, Mr. Fisher's termination was upheld.

FEDERAL GOVERNMENT PAYS $137 MILLION TO EMPLOYEES "NOT TO WORK"

noreply@blogger.com (Jim Linehan) — Fri, 09 Dec 2011 05:23:06 PST

The US government pays its staff NOT to work By Diana Furchtgott - Roth

Read more: http://www.dailymail.co.uk/debate/article-2071716/The-US-government-pays-staff-NOT-work.html#ixzz1g2jrpXH4

WASHINGTON—As Congress looks for ways to cut its $1.3 trillion deficit, the federal government is paying its employees $137 million a year not to work for Uncle Sam.
Not working. That’s right. The Office of Personnel Management reports that taxpayers paid Federal workers over $137 million in 2010 to work as representatives for government unions, up from $129 million in 2009

That means they have the privileged status of getting paid for not working, at least for some of the work-year. They are paid for full-time work by the taxpayers, including fringe benefits such as pension plans and medical insurance that most private-sector workers no longer receive.

SOCIAL SECURITY JUDGES' DECISION RECORDS RELEASED

noreply@blogger.com (Jim Linehan) — Wed, 07 Dec 2011 06:00:33 PST

HOW MANY DISABILITY CASES DID YOUR SSA JUDGE DECIDE THIS PAST YEAR?

HOW MANY FAVORABLE DISABILITY DECISIONS DID SHE AWARD COMPARED TO HOW MANY CASES DID SHE DENY?

HOW LONG DOES IT TAKE YOUR SSA OFFICE TO PROCESS A CLAIM?

FIND OUT HERE.

The available comparison reports include Overview and Detailed documents, which are all available for download in .pdf format. The overview documents are a simple presentation of whether there has been an increase or decrease in a specific category, and compared nationwide. The detailed reports contain the actual comparison statistics by State, Region and National level.

APPEAL TO THE 1OTH CIRCUIT... A WASTE OF TIME AND MONEY?

noreply@blogger.com (Jim Linehan) — Wed, 30 Nov 2011 15:16:27 PST

THINKING ABOUT APPEALING YOUR SOCIAL SECURITY CLAIM TO THE 10TH CIRCUIT? THINK AGAIN...

The 10th Circuit Federal Court of Appeals is the appeals court for federal cases arising out of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho.

If you have lost your social security disability claim you may want to consider filing an appeal to the 10th Circuit....or then again....not.

The 10th Circuit has published on its website of reversals of social security claims and other administrative appeals that it receives.

The 10th Circuit has announced that it reverses the Social Security Administration only on 1.5% of the administrative appeals it receives. That basically means for every 100 SSA disability appeals made to the 10th Circuit, the 10th Circuit is going to agree with the SSA and against the disabled claimant on more than 98 claims.

Bearing in mind that the average time for a 10th Circuit appeal is more than 9 months with a minimum $450 filing fee cost, most social security claimants who are disabled, unemployed and without any income, will likely have little desire to appeal to a Court that routinely denies more than 98% of the appeals it reviews.

OPM CHIEF SAYS HE HAS NO PLAN TO IMPROVE INCREDIBLY POOR PERFORMANCE

noreply@blogger.com (Jim Linehan) — Mon, 28 Nov 2011 05:47:49 PST

WHILE MORE THAN 60,000 RETIRED FEDERAL EMPLOYEES ARE WAITING FOR THEIR BENEFITS, FEDERAL AGENCY CHIEF SAYS HE CAN ONLY PROCESS ABOUT 3 CLAIMS PER DAY AND HAS NO PLANS TO IMPROVE HIS AGENCY OUTPUT

The Office of Personnel Management's backlog of pending retirement cases has grown 58 percent since Director John Berry first pledged to solve the problem more than a year ago.
Berry told Congress this morning that there are now 60,000 new retirees waiting for OPM to finish processing their retirement claims and issue them complete pensions. That's up from 38,000 in October 2010, when Federal Times first reported that tens of thousands of retirees were waiting six months or more for their full pensions. In April, that number increased to 43,000.
Unless something changes, that backlog will keep growing, and fast. Berry told the House Oversight and Government Reform subcommittee on the federal workforce that OPM gets about 9,600 new retirement cases each month, but it only processes about 7,700 cases — a shortfall of 1,900 cases. At that rate, the backlog will more than double by summer 2014.
Subcommittee Chairman Dennis Ross, R-Fla., said each claims examiner at OPM processes about 3.5 cases per day, which he and Berry agreed is unacceptable. Berry also said OPM is now taking 133 days on average to process retirement claims — just five days fewer than the 138-day average in October 2010.
"That has to be corrected, and it has to be corrected right away," Ross said. "Admitting that there's a serious problem is a beginning step, but there's a long way to go."
But when Ross asked Berry for a business plan spelling out exactly how OPM will fix the retirement problem and by when, Berry said he did not have one yet.

E-FILING INSTRUCTION FOR OPM APPEALS

noreply@blogger.com (Jim Linehan) — Mon, 21 Nov 2011 09:34:34 PST

If you have been denied your federal medical disability retirement benefits by the Office of Personnel Management OPM), you must file your appeal with the Merit Systems Protection Board (MSPB) within 30 days of the decision denying your claim.
That is not much time.
Luckily however you are able to quickly file your MSPB appeal on line by electronic filing.
To do so you must first go to the MSPB website and regsiter as an e-filer; a simple process.
The MSPB site is located here: MSPB E-FILING

Registration as an E-Filer enables you to file any or all of your pleadings with the Board in electronic form. Registration also means you consent to accept service of all pleadings filed by other registered E-Filers and all documents issued by the Board in electronic form. If you elect to be served electronically, MSPB will e-mail you notification when documents are posted to the repository. If registered as an E-Filer, you may file any pleading, or portion of a pleading, by non-electronic means. You can withdraw your registration as an e-filer at any time.

The term "pleading" includes virtually every written submission that a party or representative may file relating to a specific Board proceeding, including submissions that set out claims, allegations, arguments, or evidence, motions, legal briefs, petitions, responses, and attachments.
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2. What must I do to engage in electronic filing?

Before a party or representative in a Board proceeding can file or receive documents electronically, he or she must register with the Board as an e-filer. The only way to register as an e filer is to follow the instructions at the Board's e Appeal site (https://e appeal.mspb.gov/).
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3. Must all persons associated with a party make the same decision regarding e filing?

No. When a party who is an individual is represented, the party and the representative can separately decide whether to register for e filing. For example, if an appellant's representative has registered as an e filer, but the appellant has not, the appellant would receive copies of Board documents and the other parties' pleadings by regular mail. Similarly, when a party has more than one representative, each representative has the option of registering as an e-filer, or filing and receiving pleadings and Board documents by non-electronic means.
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4. If I register as an e filer, will I be required to disclose my email address to other parties and their representatives?

No. This information will be disclosed to the Board only. When more than one participant in a Board appeal has registered as an e-filer, the Board will serve electronic pleadings on other registered e-filers.
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5. What type of documents can be filed electronically?

A registered e-filer can use the e-Appeal site to do any of the following:

File any pleading, including a new appeal, in any matter within the Board's appellate jurisdiction. For a list of matters within the Board's appellate jurisdiction, see 5 C.F.R. 1201.3.
File any pleading, except for the original complaint or request, in any matter within the Board's original jurisdiction, which includes: (1) actions brought by the Special Counsel under 5 U.S.C. 1214, 1215, and 1216; (2) requests for informal hearings by persons removed from the Senior Executive Service for performance deficiencies; and (3) actions taken against administrative law judges under 5 U.S.C. 7521.
Initiate an addendum proceeding. Addendum proceedings include: (1) a petition for enforcement of a final Board decision; (2) a motion for attorney fees as a prevailing party; or (3) a motion for compensatory or consequential damages after you have prevailed in the proceeding on the merits. See 5 C.F.R. Part 1201, Subparts F (petitions for enforcement) and H (other addendum proceedings).
Designate a representative, revoke such a designation, or change such a designation.
Update contact information such as addresses and telephone numbers.

SSA FIRING DOCTORS WHO WILL NOT SIGN FRAUDULENT SSA REPORTS

noreply@blogger.com (Jim Linehan) — Mon, 21 Nov 2011 04:56:56 PST

Doctor Revolt Shakes Social Security Disability Program

SSA Demanding that Doctors Evaluate Disability Claims Outside their Areas of Knowledge: Eye Doctors Required to Evaluate Orthopedics Claims; Dermatologists Required to Evaluate Cardiovascular Disability Claims... or be Fired

SSA Doctors Performing only Cursory Reviews of Disability Claims: 30 or More Per Hour

Earlier this year, senior managers at the Social Security Administration in Baltimore, frustrated by a growing backlog of applications for federal disability benefits, called meetings with 140 of the agency's doctors.

The message was blunt: The number of people seeking benefits had soared. Doctors had to work faster to move cases. Instead of earning $90 an hour, as they had previously, they would receive about $80 per case—a pay cut for many cases which can take 60 to 90 minutes to review—unless the doctors worked faster. Most notably, it no longer mattered if doctors strayed far from their areas of expertise when taking a case.

"The implication there was that you really didn't have to be that careful and study the whole thing," said Rodrigo Toro, a neurologist who analyzed cases for the Social Security Administration for more than 10 years. Some doctors, including Dr. Toro, quit following the changes. Others were fired. In all, 45 of the 140 left within months, the agency said.
The upheaval, described by current and former doctors and agency officials, is the latest strain on a cash-strapped program struggling to deal with a giant influx of applications.
In targeting the doctors, the Social Security Administration says it is seeking to overhaul a part of the disability-review process that can be both expensive and slow.
But many doctors and former agency officials say the changes threaten the quality of decisions. Several doctors said medical opinions were now prone to inaccuracy since many specialists don't have the backgrounds to make decisions outside their areas of expertise. The new policy could make doctors more likely to award benefits to those who don't qualify and deny benefits to those who are entitled, these doctors said.
After the procedures were implemented in Baltimore, an eye doctor was assigned back-pain cases, several doctors said. A dermatologist reviewed the files of someone who had a stroke. A gastroenterologist reviewed the case of someone with partial deafness, the doctors said.
All of the medical consultants working in the program went to medical school or had other extensive training, preparing them for the wide range of cases that might cross their desks, according to interviews with more than 10 of the program's current and former doctors.
But many of the doctors haven't practiced outside their specialty in decades, if at all, making the complexities of disability cases even harder to analyze, several doctors said.
Doctors who specialize in nerve disorders "would be hard pressed to evaluate diabetes and heart disease and … leukemia," said James McPhillips, a doctor who left the program in April once he realized the changes that were coming.
"People who shouldn't be getting [disability] are getting it, and people who should be getting it aren't getting it," said Neil Novin, former chief of surgery at Baltimore's Harbor Hospital, who worked for Social Security part time for about 10 years. In August, Dr. Novin said, he was pressured by a supervisor to change his medical opinion and award benefits to someone he didn't believe had disabilities that would prevent the person from working.
"I will not sign my name, MD, on this," Dr. Novin recalled telling the official. He said he was cited for being "offensive and intimidating" and fired. Dr. Novin can't recall details of the case, he said, but it was outside his area of specialization.
Neil Novin, recently fired by the Social Security Administration, says the agency is rushing disability decisions.
Two other doctors also said they were pressured to award benefits in cases where they were reluctant. Supervisors told them that certain ailments should be considered "severe," even if the doctors disagreed.
Social Security Administration spokesman Mark Hinkle would not comment specifically on Dr. Novin or other doctor's cases. But he said the changes in Baltimore were likely to speed up the process for analyzing benefit requests, and are "providing the agency with a more accurate and cost-effective business process."
Mr. Hinkle added: "The decisions are timelier—and all would agree that is a good thing—but this does not mean we are sacrificing quality for 'speed.' It's a balance."
When it introduced the new policies, agency officials began reviewing more of the medical consultants' work and found that some didn't fully understand SSA policy or properly explain their medical opinions. Mr. Hinkle said the agency stepped up training and other guidance, but "some did not improve and some resented our efforts."
Mr. Hinkle said the new system would put doctors in a better position to consider whether multiple health issues on a single case met the criteria for a disability. He added that specialists were available to review any case if a doctor requests it.
The new policies in Baltimore had already been adopted in other states several years ago and officials were happy with the results, supporters of the changes said.

But some doctors have complained to the Social Security inspector general that they have been pressured to change their medical opinions to conform to targets or goals set by SSA officials, and they feared they would be fired if they resisted, according to investigations conducted by the inspector general.

In February 2010, the inspector general, as part of a probe investigating complaints by a doctor, discovered a doctor in the Alabama disability determination office who approved between 80 and 100 decisions a day. Another Alabama doctor signed off on 30 cases an hour after performing only a "cursory review of each case."
The investigation said several doctors complained of pressure from superiors to approve a higher number of applications to meet statistical goals.
The Social Security Administration, in a response to the investigation, said it planned to make certain changes, but defended the Alabama office, saying it "excels" in "performance standards on timeliness and accuracy rates."
The federal disability system is designed to help people who can no longer work. For many, it represents the social safety net of last resort. Successful applicants receive a monthly stipend and access to federal health-care programs, often for life.
Through a combination of high unemployment, an aging population and an uneven process for awarding benefits, the disability system is under strain and could run out of reserves within six to seven years, say budget experts. That would make it the first major federal entitlement program to go bust in recent history. Applications and appeals, meanwhile, are accumulating in a giant backlog, in part because of the deep and lasting economic slump.
It's a toxic combination. The agency is under political pressure to reduce the backlog. But its efforts to do so—such as revamping medical procedures—are, in some ways, compounding the system's woes, said several doctors.
The Social Security Disability Insurance program paid $124 billion in benefits in 2010, up from $55 billion in 2001. The backlog of pending appeals in September was 771,318, up from 705,367 in 2010 and 392,397 in 2001.
The disability application process has many layers, including hundreds of state-based field offices that accept applications and administrative law judges who weigh appeals.
In addition, the Social Security Administration spends millions of dollars each year on more than 2,000 medical consultants who scour the medical records of Americans who believe they have a disability so severe they can't work. Most doctors work for the state agencies that administer the program and are sometimes the only people with medical expertise to review claims. Others, like those in Baltimore, contract directly with the Social Security Administration.
Many medical consultants are retired or semi-retired doctors seeking additional income and working under contract, meaning they can be fired with little cause.
The Baltimore office is considered the flagship, according to several doctors and John Delpaine, who oversaw medical consultants there before retiring in December. In its procedures and structure, Mr. Delpaine said, the office sets the standards for offices throughout the U.S.
As an application backlog grew over the past decade, Social Security Administration officials worried that doctors were a cause. In some offices, different doctors would review separate medical issues of an individual applicant. A patient with a knee injury and cancer, for example, would be reviewed by an orthopedist and an oncologist. With 3.2 million people trying to enter the program this year, such duplication became problematic.
Earlier this year, SSA bosses began pressing doctors to move cases more rapidly, designing a "holistic" process requiring one doctor to review each case, according to a document outlining the overhaul and reviewed by The Wall Street Journal.
Those uncomfortable in a particular specialty could brush up by taking short refresher courses. Doctors in Baltimore who didn't have a background in blood disease, for example, could take a one-hour seminar.
The approach in Baltimore has drawn critics. William Bunn, 47 years old, a truck driver from Peoria, Ill., found his disability claim rejected, in part, on the recommendation of a retired pediatrician.
Mr. Bunn was diagnosed with small-fiber neuropathy in 2009, a type of nerve disorder that primarily affects older people. Mr. Bunn, who began suffering from pain and numbness in his legs, said he couldn't drive a truck with his condition and quit his job. His application was supported by two private doctors. But it was rejected after two reviews by the Illinois Bureau of Disability Determination Services, one of which was performed by the pediatrician.
His appeal took more than two years. During that time, the family of four had their two cars repossessed and had to rely on food stamps for groceries.
William Wombacher, Mr. Bunn's Peoria attorney, objected to the pediatrician's review when the case was heard by an administrative law judge. The judge, in a rare move, awarded benefits on the spot.
Mr. Bunn said the extended wait brought him "a lot of heartache and misery."
The SSA's Mr. Hinkle wouldn't comment on the case. But, he said, "Just because one doctor works on a case and makes the decision on that case does not mean that a specialist wasn't consulted."
The Social Security Administration has tried previously, with limited success, to improve its medical screening. In 2005, it proposed creating a Federal Expert Unit, which would spearhead a national network of specialists to better align expertise to cases.
"We want to ensure that each case is seen by the right medical eyes," then-SSA commissioner Jo Anne Barnhart told Congress in 2006. In her testimony, she noted that, at the time, 20% of disability applicants had musculoskeletal problems, but just 2.5% of medical consultants were orthopedists.
The expert unit was never created. SSA officials said they didn't realize how costly it would be to set up a network of specialists and needed more time to study the idea.
In the past few years, a number of senior SSA officials began pressing the Baltimore office to abandon its reliance on medical "specialists," said Mr. Delpaine, who oversaw the doctors there.
But he said he "kept them at bay." His 39-year tenure within the Social Security system impressed on him that specialists played a vital role. When he stepped down in December, the changes were almost immediate.
"They think that a doctor is a doctor is a doctor," he said. "I don't think they have an understanding or an appreciation of what a specialist's input can add."
Phil Gambino, an assistant deputy commissioner at the SSA, said the generalist approach has been used in other states for more than a decade. "Mr. Delpaine's assertion is wrong," he said, "and calls into question his credibility on the issue."
Mark Isaacs, former chief of psychological services at Spring Grove Hospital in Catonsville, Md., who is known as an elder statesman of the program, said "the whole atmosphere became charged with tension" after the changes earlier this year.
Mr. Isaacs, a 25-year veteran of the agency, watched as his colleagues, one by one, stopped coming to work. After Dr. Toro, the neurologist, quit his post in April, several others followed.
"Some were asked to go," Mr. Isaacs said. "Others went because they had a big argument over their medical opinion not being accepted. Others left because who the hell needs all that tension and anxiety?"
Arguments with managers escalated over the summer, with some doctors getting into heated public confrontations with Social Security officials for either ignoring their medical opinion or pressuring them to change it, several doctors said.
In late September, Mr. Isaacs received a critique from one manager questioning the quality of one of his reviews. He wouldn't give details of the case, but said the critique was "unreasonable." He resigned.
Mr. Hinkle of the SSA wouldn't comment on the allegations by doctors. He said the 45 people who left the agency this year departed for a number of reasons, including the new pay structure, health or family issues, or performance problems.
Write to Damian Paletta at damian.paletta@wsj.com

Just how much time do you have to file for your federal claims or appeal?

noreply@blogger.com (Jim Linehan) — Tue, 15 Nov 2011 20:01:35 PST

WHAT ARE THE TIME LIMITS TO FILE FOR SOCIAL SECURITY DISABILITY?

FEDERAL WORKERS' COMPENSATION? MEDICAL DISABILITY RETIREMENT?

Figuring out just how much time you have to file your claim for social security disability, federal workers' compensation and other claims and appeals can be very confusing. Get the deadlines wrong and file too late could mean that you and your dependents are out tens of thousands -- if not hundreds of thousands -- of dollars in lifetime benefits.

Here is a brief explanation of the general deadlines you need to know about.

SOCIAL SECURITY DISABILITY

Contrary to popular belief that you can file for social security "disability" anytime, there is a hidden deadline running for everyone. That deadline is called your "date last insured" or "DLI". Your DLI is individual to you and is based on the number of years you have worked and the amount of FICA taxes you have paid to the government. If your DLI has expired, then regardless of how disabled you may be, you might not be entitled to collect any social security disability benefits. Everyone needs to know their DLI. If you don't know your DLI, you need to get it immediately. To get it you must visit (you cannot call them) your local SSA office and have them run your case on their system to calculate your DLI.

If you are going to file for social security disability you need to file before your DLI date has expired. Otherwise you may be limited to filing only for much lesser paying "supplemental security income" SSA benefits.
Once you file for social security benefits, if you are denied you will generally have 60 days to file an appeal at every stage of the process thereafter.

FEDERAL WORKERS' COMPENSATION
Federal workers' compensation claims (also known as "OWCP" claims) have a range of deadlines. Generally if you are traumatically injured on your federal job notice of injury must be filed within 3 years of the injury. If the claim is not filed within three years, compensation may still be allowed if notice of injury was given within 30 days or the employer had actual knowledge of the injury or death within 30 days after occurrence. For occupational illness claims, the 3 year time for filing claim does not begin to run until the employee has a compensable disability and is aware, or reasonably should have been aware, of the causal relationship between the disability and the employment.

If the claim is denied you will have a variety of appeals timelines depending upon the specific reason for denial and the issue in the claim.
You may be given three appeals options: (1) you have 30 days from the date of denial to file a request for an oral hearing with the Branch of Hearings and Review, or (2) you have 180 days from the date of denial to file a request for review with the Employees Compensation Appeals Board, or (3) you have 365 days to file a request for reconsideration with the OWCP.
The type of claim and the issues will determine which appeal route applies for you. You must choose the proper appeal for your claim.
Also note carefully: the government changed the rules this past year for filing appeals in OWCP claims. Before, a claimant only had to show by postmark or otherwise that he had filed the appeal before the deadline. Under the new rules, the claimant now must show that the OWCP has "received" the appeal before the deadline. That means a claimant must file his appeal long enough before any deadline to make sure the appeal is "received" in time.

OPM MEDICAL DISABILITY RETIREMENT
OPM medical disability retirement is an annuity program for federal employees that is similar to social security disability.
The deadline for filing for OPM medical disability retirement is pretty straightforward. You must file for OPM medical disability retirement within one year of your last date on the roll as a federal employee.

It sounds simple, but many federal agencies incorrectly (and likely intentionally) tell federal employees that they must wait until one year after their last date on the roll as an employee to file for OPM. The poor hapless federal employee who then waits one year and a day to then file for OPM will quickly learn there is no excuse or appeal available to him. His filing for OPM, even just one day late, will result in a dismissal of his claim and a loss of lifelong annuity benefits. Also as part of filing for OPM, a federal employee is required to file for and follow through with a claim for social security disability benefits.
These are general deadlines only for SSA, OWCP and OPM. The actual deadlines in your particular claim may vary depending upon the exact issues being raised in your claim. Regardless, you are required to know your own deadlines and to follow them. The government is under no obligation to assist or guide you with any filings or appeals and will not.

Man living as an ‘adult baby’ is cleared of Social Security fraud

noreply@blogger.com (Jim Linehan) — Wed, 19 Oct 2011 07:20:36 PDT

A California man who lives part of his life as an “adult baby” and collects Social Security disability payments says the federal agency has cleared him of wrongdoing and will continue sending checks.
Stanley Thornton Jr. now wants an apology from Sen. Tom Coburn, the Oklahoma Republican who called for the benefit review because the investigation disrupted the final months of life for his roommate Sandra Dias, who playacted as his mother, spoon-feeding him and helping him into his baby clothes until her death in July.
“We recently reviewed the evidence in your Social Security disability claim and find that your disability is continuing,” the agency said in an August letter that Mr. Thornton posted on the website he maintains to document his adult baby lifestyle.
Mr. Thornton first gained prominence after he appeared on a reality television show and later after Mr. Coburn asked for the Social Security Administration to investigate him. The lawmaker questioned why he was receiving taxpayer-funded Supplemental Security Income (SSI) payments, commonly called disability checks, given the woodworking skills he demonstrated in May on the National Geographic channel television show “Taboo.”

TRIM OWCP BENEFITS IS RECOMMENDATION OF PRESIDENT AND CONGRESS

noreply@blogger.com (Jim Linehan) — Thu, 13 Oct 2011 07:21:12 PDT

OBAMA AND CONGRESS RECOMMEND THAT FEDERAL WORKERS COMPENSATION BENEFITS BE TRIMMED FOR USPS AND FEDERAL EMPLOYEES

As of June, some 16,200 disabled USPS employees — or more than one-third of the total for the federal workforce — were on the long-term workers' comp rolls. Of those, 928 were aged 80 or older. One was 99.

Under legislation introduced by Collins in February, workers' comp recipients would have to drop off the rolls once they became eligible for retirement; Collins also folded that requirement into a broader postal overhaul measure. Neither bill has moved out of the Senate Homeland Security and Governmental Affairs Committee, where she is the top Republican.

Also stalled is an Obama administration plan to trim some benefits and make other changes aimed at bringing more injured employees back to work. At the May hearing, an American Postal Workers Union representative objected that some parts of the plan would "negatively affect public servants and their families."
Along with recommending changes to the structure of the workers' comp program, the inspector general also found room for management improvements.

Out of 150 case files reviewed in the Postal Service's Chicago, Philadelphia and Seattle offices, more than two-thirds lacked claims forms, medical documentation or correspondence, the audit said. The Labor Department "is not always responsive" to reported fraud, while departmental officials are reluctant to provide information during investigations, auditors wrote. After one USPS recipient was found fit to return to work with no restrictions, the Labor Department waited about 14 months before taking action to cut off the employee's benefits, according to the audit.

HOW TO OBTAIN A COPY OF YOUR FEDERAL AGENCY CLAIMS FILE

noreply@blogger.com (Jim Linehan) — Tue, 11 Oct 2011 18:38:46 PDT

FOR OWCP CLAIMS: Submit a Privacy Act request to OWCP for a complete copy of your OWCP file. You should request that your file be sent to you by the OWCP on CD-ROM. Send your request by certified mail to USDOL/OWCP/ACS, P.O. Box 8300, DFEC Central Mailroom, London, KY 40742-8300. Write "PRIVACY ACT REQUEST" on the outside of the envelope. Your request should be a simple letter signed by you that asks for a complete copy of your OWCP claims file to be sent to you on CD ROM. Provide your name, telephone number, mailing address, OWCP claim number, date of injury, social security number and date of birth. Repeat every 30 days until file is received.

FOR VA DISABILITY CLAIMS: If you have not already, you should visit the local VA office that is handling your claim and request a copy of your entire claims file; commonly called a "C-file". Or you can send by certified mail a form to the VA to request the VA to send you a complete copy of your claims file. Average wait time for the latter is 6 months.

FOR SSA DISABILITY CLAIMS: If you have not already, you should visit the local SSA office that is handling your claim and request a copy of your entire claims file. Or you can send by certified mail a SSA Form 3288 to the SSA to request the SSA to send you a complete copy of your claims file. You can download that form 3288 off the SSA website. Or if you are enrolled on the electronic records site for the SSA you may be able to access you claims file on line, with certain limitations.

FOR OPM MEDICAL DISABILITY RETIREMENT CLAIMS: Submit a Privacy Act request to OPM for a complete copy of your OPM file. You will need to obtain a complete copy of your OPM file from the OPM itself. You should request that your file be sent to you by the OPM on CD-ROM. Send your request by certified mail to the OPM office handling your claim. Write "PRIVACY ACT REQUEST " on the outside of the envelope. Your request should be a simple letter signed by you that asks for a complete copy of your OPM claims file to you. Provide your name, telephone number, mailing address, OPM claim number, date of injury, social security number and date of birth.

USPS MAKES PAYMENT

noreply@blogger.com (Jim Linehan) — Tue, 11 Oct 2011 18:38:02 PDT

OCTOBER 11 -- The US Postal Service has confirmed that the USPS will make a scheduled payment to the Department of Labor "in full and on time."

The Labor Department had previously said that if the Postal Service defaulted on the scheduled Oct. 15 payment to the Federal Employees' Compensation Act program, "there may not be enough money to pay any benefits during the last four months of FY 2012."

Claimant awarded twice the amount he should have been due to OWCP medical advisor error; keeps award anyway

noreply@blogger.com (Jim Linehan) — Tue, 11 Oct 2011 18:37:38 PDT

Under the 6th Ed. AMA Guide ratings physicians may use range of motion as an alternative to diagnosis-based impairment to rate a claimant's permanent impairment. However, an impairment rating that is calculated using ROM may not be combined with a DBI rating.

In the case of FT v. USPS, ECAB 11-339 (09/2011) the claimant submitted a 12% rating to his arm per the ROM calculation used by his treating physician.

The OWCP's district medical adviser used the DBI method and came up with 10% rating. The DMA then added that to the ROM method of 12% and came up a total 21% rating to the arm.

The OWCP awarded the claimant 21% to the arm.

The claimant appealed saying he should have received 22% to the arm as 10% added to 12% equaled 22%.

The ECAB said no.

The ECAB agreed that it was error on the part of OWCP's medical adviser to combine the range of motion rating with the diagnosis-based rating to total 21 percent. Nonetheless the A.M.A., Guides instruct that ROM may under specific circumstances be selected as an alternative approach to rating impairment, however an impairment rating that is calculated using ROM may not be combined with the DBI, which stands alone as the rating.

Even though the DMA award of 21% was in error, as the claimant did not show he was entitled to a rating greater than 21%, his award of 21% cannot be increased.

WHAT IS "CAUSAL RELATIONSHIP" IN OWCP CLAIMS?

noreply@blogger.com (Jim Linehan) — Mon, 10 Oct 2011 06:06:28 PDT

What does "causal relationship" mean in a federal workers' compensation claim?

The Federal Employees Compensation Act (FECA) Office of Workers' Compensation Programs (OWCP) requires that an employee seeking benefits under FECA has the burden of proof to establish the essential elements of his claim, including the fact that the individual is an employee of the United States within the meaning of FECA, that the claim was timely filed within the applicable time limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and that any disability or specific condition for which compensation is claimed is causally related to the employment injury. When an employee claims that she sustained a traumatic injury in the performance of duty, he must establish the fact of injury, consisting of two components, which must be considered in conjunction with one another. The first is whether the employee actually experienced the incident that is alleged to have occurred at the time, place and in the manner alleged. The second is whether the employment incident caused a personal injury, and generally this can be established only by medical evidence.The claimant has the burden of establishing by the weight of reliable, probative and substantial evidence that the condition for which compensation is sought is causally related to a specific employment incident or to specific conditions of employment. An award of compensation may not be based on appellant's belief of causal relationship. Neither the mere fact that a disease or condition manifests itself during a period of employment nor the belief that the disease or condition was caused or aggravated by employment factors or incidents is sufficient to establish a causal relationship. 8 Simple exposure to a workplace hazard does not constitute a work-related injury entitling an employee to medical treatment under FECA.

Causal relationship is a medical issue, and the medical evidence generally required to establish causal relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is medical evidence that includes a physician's rationalized opinion on whether there is a causal relationship between the claimant's diagnosed condition and the established incident or factor of employment.

The opinion must be based on a complete factual and medical background of the claimant, must be one of reasonable medical certainty and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the established incident or factor of employment.

WHAT IS REQUIRED TO PROVE MEDICAL DISABILITY RETIREMENT?

noreply@blogger.com (Jim Linehan) — Thu, 06 Oct 2011 08:53:04 PDT

You must meet all of the following conditions to be eligible for disability retirement:

You must have completed at least 18 months of Federal civilian service which is creditable under the Federal Employees Retirement System (FERS).
You must, while employed in a position subject to the retirement system, have become disabled, because of disease or injury, for useful and efficient service in your current position.
The disability must be expected to last at least one year.
Your agency must certify that it is unable to accommodate your disabling medical condition in your present position and that it has considered you for any vacant position in the same agency at the same grade or pay level, within the same commuting area, for which you are qualified for reassignment.
You, or your guardian or other interested person, must apply before your separation from service or within one year thereafter. The application must be received by either OPM or your former employing agency within one year of the date of your separation. This time limit can be waived only if you were mentally incompetent on the date of separation or within one year of this date.
You must apply for social security disability benefits. Application for disability retirement under FERS requires an application for social security benefits. If the application for social security disability benefits is withdrawn for any reason, OPM will dismiss the FERS disability retirement application upon notification by the Social Security Administration.

Your application for disability retirement must be received by OPM within one year after the date of your separation. If you have been separated from Federal service for more than 31 days, your former employing agency may no longer have your personnel records and may not be able to recover them in time to process your disability retirement application and submit it to OPM within the one-year time limit. Therefore, you should submit your application directly to OPM rather than to your agency.

SSA TELLS EMPLOYEES/JUDGES TO NOT DECIDE CASE IN RETURN FOR MONEY AWARDS

noreply@blogger.com (Jim Linehan) — Tue, 04 Oct 2011 10:51:35 PDT

IN RETURN FOR PROMOTIONS OR THOUSANDS OF DOLLARS IN BONUSES THE SSA INSTRUCTS ITS STAFF AND JUDGES TO WITHHOLD PROCESSING DISABILITY CLAIMS

Managers in the Social Security Administration, struggling to handle a skyrocketing number of disability cases, had an unusual request for their workers this week: slow down.
Social Security judges and employees in Florida, Alabama, Colorado, Georgia, Tennessee, Ohio and Arizona were among those instructed to set aside disability cases this week, with the slowdown allowing managers to boost their performance numbers for the coming fiscal year, which starts Monday.
Top officials, in a bid to meet goals to win promotions or thousands of dollars in bonuses, directed many employees to refrain from issuing decisions on cases.

Wall Street Journal 09/30/2011 by Damien Paletta