One important federal workers’ compensation benefit is the schedule award. It is payment for the permanent impairment of an extremity as the result of a work-related injury. Eligible applicants can sometimes elect to have it paid over a period of time or in a present value lump sum payment. When it comes to filing for schedule award, one of the most important aspects of the claim has nothing to do with you, but your doctor.
First, although it may be obvious to you that you are injured, the award is not available for impairment of the back (spine), heart or brain. However, you may still qualify if impairment develops at other parts of your body as a result of the injury to the ineligible part. For example, nerve root restriction at the portion of your spine that is injured often develops impairment at the part of the body serviced by the nerve: lumbar problems lead to leg problems or neck problems lead to arm and hand problems.
Of course, a person cannot get a schedule award if they do not have an accepted federal workers’ compensation claim. For the claim to be accepted, the Office of Workers’ Compensation Programs (OWCP) must decide, that the injury was work related.
This is often an area of hot dispute. It is not unusual for the employer to hire a consulting doctor for an agency medical exam. Quite often, he provides the basis for the denial of the worker’s claim, because his opinion is that the injury did not really occur at work, that it is “pre-existing”, or it is merely a “degenerative” condition. Injured workers are sometimes shocked to find that in their time of need, it seems to them that this doctor is not being fair. A lot of people just don’t normally attribute the negative aspects of advocacy to doctors.
Unfortunately, you will need your doctor in your corner during this boxing match. Most doctors who actually try to help patients are unaware of just how specific you will need for his or her written opinion to be when attributing the injury to your work activity. Many treating physicians don’t like having to deal with all of the paperwork and delays required by the workers’ compensation laws just for one patient.
When it comes to debating a consulting doctor’s opinion, there are few things you need to make sure to have. First, a detailed responsive report should be obtained and filed in the record to rebut the agency medical examiner’s opinions. Your doctor is probably not accustomed to having his opinions challenged or otherwise questioned by a consulting doctor hired by your employer. Treating doctors can often be uncomfortable in the role of defending his opinions or having to become your advocate. It is easier for them to resort to ambiguous or vague statements regarding their diagnosis and the cause of your problem. This can have the effect of decreasing the strength of evidence in your favor when compared to the certainty expressed by the employer’s consulting doctor.
I suggest that you that you take the time and money to obtain a good responsive report from your treating physician. In doing this, it is extremely important to get organized. For example, you should put together all of your medical records in a three ring notebook with tabs, a table of contents and summaries for your doctor. You may consider hiring a nurse to be your helper in this. The goal is to make it easier for your treating physician to review the opinions of the opposing doctors, as well as your other doctors, in order to incorporate those things into an overall responsive report.
Of course, one of the primary things upon which he needs to focus is that you were not experiencing any symptoms in this portion of your body prior to the work related injury. Your doctor also needs to write about how there is nothing uncommon about a person already having a weakened “degenerative” condition without symptoms, and then as the result of a particular work incident, the condition becomes painful or otherwise symptomatic. It can be the case that a pre-existing, weakened condition can make people more likely to suffer injury than someone without the pre-existing condition.
Making a statement like this allows your doctor to help you turn what looked liked a weak case into a stronger case when they attribute your impairments and restrictions to the work incident. This can be further substantiated by the fact that your records may clearly reflect that you were not receiving any medical treatment for those portions of your body during the 12 months preceding the incident.
In order to get your federal workers’ compensation schedule award, you should make sure your OWCP schedule award request file is complete. The most important document to be put in your file is a rating of your impairment by a physician.
Generally speaking, the amount of the award is dictated by the extent of impairment and which body extremity is impaired. For example, each limb is assigned a number of weeks of compensation for its “loss of use”. If the doctor determines you have a 25% impairment of that limb, your award is 25% of what your workers’ compensation wage loss benefit would be for those weeks. Eligible applicants can elect to have it paid over a period of time or in a present value lump sum payment.
You need your impairment rating to be conducted in accordance with the strict guidelines required by the federal government. Many doctors are simply inexperienced in rating impairments in accordance with those guidelines. Some think they are experienced because they may have done something similar for a non- federal workers compensation patient in the past – but they are wrong… the way of calculating the impairment for a federal employee is not the same as for a non-federal employee.
Unfortunately, some surgeons are very hesitant to help you substantiate the residual impairment problem because that is like saying that their operation was not successful. They mistakenly fear that somehow it is like admitting malpractice. I sometimes think they must be taught to describe every surgical procedure as a complete success. Fortunately, the rating does not have to be provided by your treating surgeon.
You should check with the doctor, his staff and other personnel in his office to make sure that the work is done correctly. They might not be experienced in this, they might not want to admit it, but you can’t afford to lose a very important benefit because of the possible discomfort of addressing their experience in the rating process. Good luck!
– Brad Harris, Attorney