Alan J. Shapiro

PHONE: 216-927-2030
FAX: 216-763-2620

Keys to the Kingdom of
Federal Workers’ Compensation


Federal workers’ compensation attorney Alan J. Shapiro has 28 federal workers’ compensation keys to the kingdom

1. Agency Medical Exam

The employer has the right to schedule a claimant for a physical exam, but not to contest a Federal Workers’ Compensation claim. If the agency wishes to have copies of the claimant’s medical, they must explain the purpose and use of the medical requested.

2. Aggravation of pre-existing condition

A pre-existing medical condition that is aggravated by a work-related accident is compensable regardless of the degree of such aggravation.

3. Approval for Surgery

All requests for surgery must be reviewed by the DMA.  The OWCP’s opinion will be given great weight.  However, if there is prima fascia evidence that the surgery is related to the injury, then an impartial opinion is necessary.

4. Attendant’s allowance

Up to $1500 per month may be paid for an attendant.  The necessity of the attendant must be in accordance with 5 USC 811(a).

5. Burden of proof

The claimant always has the obligation to prove compensability based on reasonable medical certainty. The burden of proof only needs to show that the accident or work factors are one of the ways the medical condition would be caused.

6. Wages

Calculating the correct wage rate is very complex.  Sections 8 114 d(1) (2) set forth the rules applicable.  Note that wages from concurrent employment may be included in the wage rate.

7. Causal Relationship

Causal Relationship is NOT Casual Relationship.  The rules are set forth in 20 CFR 10.115 (e).  Also see Chapter 2-0805 of FECA PM.

8. Change of Physician

The claimant has a right to choose his initial physician.   Section 10.401 (b) All other changes must be approved by OWCP.  The OWCP has almost unlimited authority to approve or to disapprove change of physician.

9. Chiropractic Treatment

Chiropractic Treatment is permitted if the Chiropractor diagnosis a subluxation of the spine based on x-rays that he personally reviews.  The x-rays need to be taken at or near the time of the accident.

10. Consequential Conditions

A Consequential Condition is a medical condition that has been caused by recognized compensable medical condition.  The claimant has the burden to prove by reasonable medical certainty that new medical condition resulted from the compensable medical condition.  This is different from a medical condition resulting from the accidental occurrence. 

11. Criminal Conviction

Conviction of a felony requires that compensation be suspended as of the date of imprisonment.  However dependents are entitled to a percentage of the compensation.   Conviction of a felony or misdemeanor or a plea of guilty to same, related to Federal Workers’ Compensation, results in a forfeiture of compensation and medical treatment – forever.

12. Date of injury

The exact date of injury is not always necessary.  Having the exact date is of great probative value.

13. Death caused by work stress

The death of an employee caused by work stress is compensable.  The trick is to establish compensable factors of work stress.

14. Disability vs. Impairment

This is very complex medical-legal concept. Basically, disability applies to the concept of ability to work.  Impairment is a concept that applies to body function and the loss thereof.

15. Emotional Claims

Claims for emotional illness are compensable. However, they must meet very strict guidelines.

16. Independent Medical Examinations

OWCP has the obligation to provide independent medical exams. Second Opinion Exams are conducted by an outside contractor.   OWCP contends that it has no control over these exams. Third opinion exams are conducted by OWCP itself. The physician must be selected in accordance with Chapter 3.500.4 (b)(1).

17. Prior Claims as Precedent

Only decisions of ECAB may be used as legal precedent. Decisions of OWCP or Hearings and Review may not be submitted in unrelated claims. The claim of another individual, even though the same as to fact and medical pattern may not be used in legal argument.

18. Intoxication

If a claimant’s intoxication causes his injury, then the claim is not compensable. However, intoxication is an affirmative defense. The employer must prove that the intoxication was the proximate cause of the injury. The allegation of intoxication must be invocated at the original adjudication of the claim. In fact, the intoxication must be the sole cause of the injury.

19. Loss of Wage Earning Capacity

This is the second benefit provided by the Law.  It is an extremely complex issue. I mention it, but will not discuss this unless asked.

20. Make Shift Job

If the employer creates a job to meet the claimant’s restrictions, then that job does not meet the requirement that it be a “bona fide” job that would be available to the community at large.  Such job does not constitute a proper job for wage earning capacity.

21. Maximum Medical Improvement

Maximum Medical Improvement means that the claimant has reached a plateau for medical treatment – now and for the foreseeable future.  The mere fact that the claimant is deemed to be MMI does not terminate weekly benefits.   However, a claimant needs to prove MMI in order to be eligible for a schedule award.

22. Inability to drive

Usually the inability to drive does not factor into whether or not a claimant is able to work.  However, there are exceptions to this rule.

23. Performance of Employment

The claimant has the obligation to prove by reliable, probative, and substantial evidence that the injury occurred in the performance of duty.  However, the mere fact that a medical condition occurred at work is not sufficient to establish a compensable claim.

24. Schedule Award

This is the third benefit provided by Federal Workers’ Compensation.   The Award is for injuries to specific body parts.  The weekly value of the specific body part is specified by a “Schedule”.   Not all body parts are included.  For example, head, necks, and backs are not scheduled.  Therefore, they may have no economic value.  However, penis, vagina, and breasts are covered.  The evaluation of the body part must be done in accordance with the 6th edition of the AMA Guide and the July/August 2009 AMA Guide Newsletter.

25. Statute of Limitations

There are statutes of limitations in Federal Workers’ Compensation.  The basic rule is that the claim must be filed within three years of the date of the traumatic incident or within three years of the date that the claimant knew, or should have known, that the occupational disease was related to the employment.   There are exceptions that would extend the period to five years, if written report on authorized forms was made to the employer.

26. Suitable Job Offer

If the employer makes a job offer that OWCP considers suitable and the employee refuses same without just cause – as decided by OWCP, then the claimant forfeits the right to compensation forever – on all claims in existence at the time of the forfeiture decision.

27. Third Party Recovery

If the injury was caused by an outside (non-government employee) then the injured worker has the obligation to bring a claim against the third party.   Any monies obtained must be reimbursed to the Government in accordance with a statutory formula.  There are severe penalties for failure to do so.  The subrogation unit is administered by the Office of Solicitor General.  The Office is very well run.   It is claimant and attorney friendly.

28. Appellate Procedure

OWCP renders the basic decision.  The claimant, but not the employer, has three different appeal options.

The claimant may request a reconsideration of the decision within one year from the date of the decision by OWCP.

The claimant may appeal to the Branch of Hearings and Review within thirty days of the date of the decision.  The appeal must be in the file within the 30 day period.

The claimant may appeal to Employees Compensation Appeals Board (ECAB) within 180 days of the date of the decision. 

DISCLAIMER: The content of this Web site is intended to convey general information about OWCP Attorney Alan J. Shapiro. It should not be relied upon as legal advice. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. The content of any Internet e-mail sent to OWCP Attorney Alan J. Shapiro at the e-mail addresses set forth in this Web site will not create an attorney-client relationship and will not be treated as confidential. All uses of the contents of this site, other than personal uses, are prohibited. Copyright 2009 Alan J. Shapiro. All rights reserved.

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