*The Black Box**The Black Box*Understanding the Claims Understanding the Claims

Adjudication ProcessAdjudication Process

Michael ArighiMichael ArighiProgram AnalystProgram Analyst

VA Central Office, Washington, DCVA Central Office, Washington, DC

OWCPOWCP

So, what goes on at OWCP?So, what goes on at OWCP?

• OWCP seems a mysterious, OWCP seems a mysterious, inexplicable place where information inexplicable place where information goes in, but what comes out seems goes in, but what comes out seems to have no connection to what went to have no connection to what went in.in.

• So, what’s it really all about?So, what’s it really all about?

Functions of OWCPFunctions of OWCP

• Claims adjudicationClaims adjudication

• Payment of benefits for injured workersPayment of benefits for injured workers

• Management of cases with a view to Management of cases with a view to return to workreturn to work– NOT a “retirement” systemNOT a “retirement” system

What is “adjudication”?What is “adjudication”?

• AdjudicationAdjudication is the process of is the process of developing the evidence in a claim developing the evidence in a claim for workers’ compensation and for workers’ compensation and making a decision on the issues in making a decision on the issues in that claim.that claim.

AdjudicationAdjudication

• So all claims are adjudicated in that So all claims are adjudicated in that manner?manner?

AdjudicationAdjudication

No--No--

• All Occupational Disease claims are All Occupational Disease claims are adjudicated, as described.adjudicated, as described.

• Traumatic Injury claims for stress Traumatic Injury claims for stress and certain other conditions, or ones and certain other conditions, or ones that meet certain other criteria are that meet certain other criteria are adjudicated in that manner. adjudicated in that manner.

AdjudicationAdjudication

• MostMost traumatic injury claims for simple traumatic injury claims for simple injuries (ones with minimal medical injuries (ones with minimal medical treatment, no surgery, no need for wage treatment, no surgery, no need for wage loss compensation) are treated as loss compensation) are treated as Administrative Closure cases.Administrative Closure cases.

• These cases are administratively These cases are administratively accepted, as long as expenses are accepted, as long as expenses are <$1500 and no surgery or wage loss is <$1500 and no surgery or wage loss is requested.requested.

AdjudicationAdjudication

• Note that these cases are Note that these cases are notnot really really “adjudicated”—or even seen--by a “adjudicated”—or even seen--by a Claims Examiner. Unless the expenses Claims Examiner. Unless the expenses exceed the pre-established limit or exceed the pre-established limit or surgery or wage loss compensation is surgery or wage loss compensation is claimed, they are rarely seenclaimed, they are rarely seen

• Most of these cases (90%+) return to Most of these cases (90%+) return to work and never exceed $1500 in costwork and never exceed $1500 in cost

AdjudicationAdjudication

• So, what about the ones that So, what about the ones that dodo have have to be adjudicated? How does that to be adjudicated? How does that work?work?

Let’s look at an overview, Let’s look at an overview, schematically, of what takes place…schematically, of what takes place…

Step 1. Claim filedStep 1. Claim filed

Step 2. CE ReviewStep 2. CE Review

Step 3. Evidence Sufficient?Step 3. Evidence Sufficient?

NoNo YesYes

Step 4. Develop Accept DenyStep 4. Develop Accept Deny

Repeat Pay AppealsRepeat Pay Appeals

from Step 2 Benefits Processfrom Step 2 Benefits Process

DevelopmentDevelopment

• On first review, the CE will determine On first review, the CE will determine whether s/he has sufficient evidence whether s/he has sufficient evidence to adjudicate the case. If not, s/he to adjudicate the case. If not, s/he will send a letter to the claimant.will send a letter to the claimant.

• If medical evidence is missing, s/he If medical evidence is missing, s/he will request it. If factual evidence is will request it. If factual evidence is missing, or there are disputed facts, missing, or there are disputed facts, further information will be requested.further information will be requested.

DevelopmentDevelopment

• It is the It is the claimant’sclaimant’s burden to provide burden to provide all necessary evidence, except that in all necessary evidence, except that in possession of the Agency. We must possession of the Agency. We must provide provide anyany relevant information we relevant information we have.have.

20 CFR 10.115(f); 10.118(a)20 CFR 10.115(f); 10.118(a)

By the way, this may mean Occ Health records, but By the way, this may mean Occ Health records, but does NOT apply to their Veteran’s medical recordsdoes NOT apply to their Veteran’s medical records

DevelopmentDevelopment

• The CE will allow The CE will allow at leastat least 30 days for 30 days for response from the claimant.response from the claimant.

20 CFR 10.12120 CFR 10.121

• Failure to allow at least 30 days Failure to allow at least 30 days before making an adverse decision is before making an adverse decision is reversible errorreversible error..

Where do *I* fit in?Where do *I* fit in?

• The Agency has a right—and a duty—to The Agency has a right—and a duty—to submit information bearing on the submit information bearing on the case. We do this during the case. We do this during the development process.development process.– Most of the Agency’s information is going Most of the Agency’s information is going

to have to come from the person closest to to have to come from the person closest to the incident. Usually, that’s YOU.the incident. Usually, that’s YOU.

– Accident investigation is often a critical Accident investigation is often a critical part of this processpart of this process

Where do *I* fit in?Where do *I* fit in?

• You also need an understanding of You also need an understanding of what’s going on and to know what what’s going on and to know what isis and and isn’tisn’t covered under the Federal covered under the Federal Employees’ Compensation Act (the Act Employees’ Compensation Act (the Act OWCP administers) in order to respond OWCP administers) in order to respond appropriatelyappropriately

• Evidence can be submitted electronically Evidence can be submitted electronically now. Talk to your workers’ comp now. Talk to your workers’ comp specialistspecialist

AdjudicationAdjudication

• After development of the case and After development of the case and allowing time for response from the allowing time for response from the claimant—or if all necessary evidence claimant—or if all necessary evidence is present on initial review—the CE is present on initial review—the CE will make a decision on the case.will make a decision on the case.

So, what is the CE looking for?So, what is the CE looking for?

AdjudicationAdjudication

Acceptance of a claim requires Acceptance of a claim requires satisfaction of the Five Basics:satisfaction of the Five Basics:

1.1. Timely filingTimely filing

2.2. Civil employeeCivil employee

3.3. Fact of injuryFact of injury

4.4. Performance of dutyPerformance of duty

5.5. Causal relationshipCausal relationship

AdjudicationAdjudication

• The Five Basics are hierarchical and The Five Basics are hierarchical and considered in order. If a claim fails at considered in order. If a claim fails at an early level, later levels are not an early level, later levels are not even considered.even considered.

• Example: Whether an injury occurred and Example: Whether an injury occurred and whether a condition is related are irrelevant, if whether a condition is related are irrelevant, if the claim is not timely filed.the claim is not timely filed.

Let’s look at the Basics in greater detail:Let’s look at the Basics in greater detail:

•Timely FilingTimely Filing

Timely filingTimely filing

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

Timely filingTimely filing

• For claims after 9/7/74, must be filed For claims after 9/7/74, must be filed within 3 years of--within 3 years of--

• Date of injuryDate of injury

• Date of first awareness/should have Date of first awareness/should have been awarebeen aware

• Date of last exposure/retirementDate of last exposure/retirement

Timely filingTimely filing

• Exception: If the Agency had “actual Exception: If the Agency had “actual knowledge” of the injury in the first 30 days, knowledge” of the injury in the first 30 days, and that knowledge was such as to put the and that knowledge was such as to put the Agency on notice that there had been a work-Agency on notice that there had been a work-related injury, the time requirement is met.related injury, the time requirement is met.

20 CFR 10.100(b)(1)20 CFR 10.100(b)(1)

Examples: Evidence of “actual knowledge” might be an Examples: Evidence of “actual knowledge” might be an Agency health unit’s medical report from the time of Agency health unit’s medical report from the time of the injury, or reports of monitoring under an Agency the injury, or reports of monitoring under an Agency monitoring program (hearing, asbestos, etc).monitoring program (hearing, asbestos, etc).

•Civil EmployeeCivil Employee

Civil employeeCivil employee

• Civil employee—RulesCivil employee—Rules

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

Civil employeeCivil employee

Usually, the question is easily Usually, the question is easily answered, but there can be answered, but there can be “borderline” cases, for example:“borderline” cases, for example:

• LEOs (non-Federal law officers)LEOs (non-Federal law officers)

• Volunteers (VA volunteers, WOCs, Volunteers (VA volunteers, WOCs, YCC, Job Corps)YCC, Job Corps)

• ContractorsContractors

Civil employeeCivil employee

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

•Fact of InjuryFact of Injury

Fact of InjuryFact of Injury

• Claimant’s burden to support, with Claimant’s burden to support, with evidence, the two parts to fact of injury:evidence, the two parts to fact of injury:

• 1) Medical and 1) Medical and

• 2) Factual2) Factual

Fact of InjuryFact 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 Note: There does not need to be a connection between these at this point. connection between these at this point. That issue is addressed at causal relation.That issue is addressed at causal relation.

•Performance of DutyPerformance of Duty

Performance of DutyPerformance of Duty

• In order to be compensable under the Act, In order to be compensable under the Act, an injury must arise “out of, and in the an injury must arise “out of, and in the course of, employment.” course of, employment.”

• Two tests: “in the course of employment” Two tests: “in the course of employment” generally means while the employee is at generally means while the employee is at work. “Out of employment” means that work. “Out of employment” means that something about the work or workplace something about the work or workplace led to the injury. led to the injury.

• Must meet both tests.Must meet both tests.

Performance of DutyPerformance of Duty

• PremisesPremises- fixed place of - fixed place of employmentemployment

• RecreationRecreation- formally organized- formally organized

• Union DutiesUnion Duties- representational - representational activity coveredactivity covered

• HorseplayHorseplay- if together for periods - if together for periods of timeof time

• Personal comfort Personal comfort doctrine doctrine

• To & From WorkTo & From Work- not usually covered - not usually covered

“going and coming “going and coming rule”rule”

• MisconductMisconduct- violating safety rule or - violating safety rule or lawslaws

- negligence not enough- negligence not enough

• IntoxicationIntoxication- by drug or alcohol- by drug or alcohol

- must be the “proximate - must be the “proximate cause” of injury-we’ll look cause” of injury-we’ll look at this in more detail laterat this in more detail later

Performance of Duty-some Performance of Duty-some issuesissues• Idiopathic Falls Idiopathic Falls

– known, non-work-related, pathologyknown, non-work-related, pathology– intervening objectintervening object

• Unexplained FallUnexplained Fall– Unknown etiologyUnknown etiology

• Travel StatusTravel Status– reasonably incidental and NOT a…reasonably incidental and NOT a…

• Diversion from DutyDiversion from Duty• Assault CasesAssault Cases• Coworker Harassment or Teasing Coworker Harassment or Teasing

•Causal RelationshipCausal Relationship

Causal relationshipCausal relationship

This is the link between the work-related This is the link between the work-related injury or exposure and the medical injury or exposure and the medical condition being claimed. There are condition being claimed. There are four types of causal relationship--four types of causal relationship--

• direct causedirect cause• aggravationaggravation• accelerationacceleration• precipitationprecipitation

Causal relationshipCausal relationship

• Unlike the other four of the Five Basics, Unlike the other four of the Five Basics, causal relationship is causal relationship is notnot a one-time a one-time thing. The claimant must show that it thing. The claimant must show that it continues throughout the life of the continues throughout the life of the claim. claim.

• Compensation continues as long as Compensation continues as long as there continues to be disability for work there continues to be disability for work (total or partial) that is causally related (total or partial) that is causally related to the work injury.to the work injury.

Causal relationshipCausal relationship

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

Continuation of PayContinuation of Pay

Continuation of PayContinuation of Pay

• Where the Agency controverts Where the Agency controverts payment of Continuation of Pay (COP), payment of Continuation of Pay (COP), OWCP must review the case and make OWCP must review the case and make a decision whether COP should be paid.a decision whether COP should be paid.

• Their decision must be based on the Their decision must be based on the written evidence in the case, and the written evidence in the case, and the Agency and claimant (and rep, if there Agency and claimant (and rep, if there is one) informed of the decision.is one) informed of the decision.

20 CFR 10.11920 CFR 10.119

Continuation of PayContinuation of Pay

• The CE must consider the arguments The CE must consider the arguments and evidence presented by both and evidence presented by both sides. The decision is made on the sides. The decision is made on the basis of:basis of:

• Clear and convincing quality of the Clear and convincing quality of the evidence and arguments,evidence and arguments,

• Regulatory guidance at 20 CFR Regulatory guidance at 20 CFR 10.22010.220

POP QUIZ!POP QUIZ!

• What are the 7 acceptable reasons for What are the 7 acceptable reasons for controversion of COP?controversion of COP?

COPCOP

1.1. Disability not caused by traumatic injuryDisability not caused by traumatic injury

2.2. Not a citizen or resident of US or Not a citizen or resident of US or CanadaCanada

3.3. No written claim within 30 daysNo written claim within 30 days

4.4. Injury not reported prior to termination Injury not reported prior to termination of employmentof employment

5.5. Injury occurred off premises and not in Injury occurred off premises and not in PODPOD

COPCOP

6.6. Injury caused by willful misconduct, Injury caused by willful misconduct, intent to injure or kill self or other(s), intent to injure or kill self or other(s), or due to intoxication by illegal drugs or due to intoxication by illegal drugs or alcohol (performance of duty, or alcohol (performance of duty, right?)right?)

7.7. Work did not stop until more than 45 Work did not stop until more than 45 days after injurydays after injury

20 CFR 10.22020 CFR 10.220

COPCOP

• Evidence needed to prove each varies, Evidence needed to prove each varies, depending on what you have to prove.depending on what you have to prove.

• It is relatively straightforward to prove It is relatively straightforward to prove citizenship, claim filing, termination of citizenship, claim filing, termination of employment or work stoppage.employment or work stoppage.– Documentary evidenceDocumentary evidence

COPCOP

• That an injury is an occupational That an injury is an occupational disease, not a traumatic injury, usually disease, not a traumatic injury, usually will rest on history and the medical will rest on history and the medical evidenceevidence

• Proving that an injury was off-premises Proving that an injury was off-premises and not work-connected may be easy or and not work-connected may be easy or difficult—submit whatever documents, difficult—submit whatever documents, witness statements, or the like you have witness statements, or the like you have or can obtainor can obtain

COPCOP

• Proving willful misconduct, intent to Proving willful misconduct, intent to injure or kill, or intoxication is usually injure or kill, or intoxication is usually extremely difficult.extremely difficult.

– ““Intent” or “willfulness” is inherently Intent” or “willfulness” is inherently difficult to provedifficult to prove

– Carelessness Carelessness ≠ “willfulness”≠ “willfulness”

COPCOP

• Intoxication: Provide all evidence you Intoxication: Provide all evidence you can—witness statements, police can—witness statements, police reports, tox screen results, etc.reports, tox screen results, etc.• Intoxication ≠ causationIntoxication ≠ causation

• Need to prove BOTH that the person WAS Need to prove BOTH that the person WAS “intoxicated” (by drugs or alcohol) “intoxicated” (by drugs or alcohol) ANDAND that it that it was the intoxication that was the intoxication that causedcaused the injury. the injury. Tough standard (and intended to be)Tough standard (and intended to be)

COPCOP

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

Disputing claimsDisputing claims

• As with controversions of COP, the As with controversions of COP, the CE looks for clear, convincing CE looks for clear, convincing evidence to support any disputes you evidence to support any disputes you have with the claim.have with the claim.

• If you have documentation, send it If you have documentation, send it in.in.

• If you have witness statements, send If you have witness statements, send them in.them in.

Disputing claimsDisputing claims

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

• If you dispute only selectively and If you dispute only selectively and provide decent evidence, you will win.provide decent evidence, you will win.

DisputesDisputes

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

Questions?Questions?

Contact InformationContact Information

Michael ArighiMichael ArighiProgram Analyst, VACOProgram Analyst, VACO

Office of Occupational Safety and Health Office of Occupational Safety and Health michael.arighi@va.govmichael.arighi@va.gov