*The Black Box* Understanding the Claims Adjudication Process

1
The Black BoxUnderstanding the Claims
Adjudication Process

• Michael Arighi
• Program Analyst
• VA Central Office, Washington, DC

2
OWCP
3
So, what goes on at OWCP?

• OWCP seems a mysterious, inexplicable place where
  information goes in, but what comes out seems to
  have no connection to what went in.
• So, whats it really all about?

4
Functions of OWCP

• Claims adjudication
• Payment of benefits for injured workers
• Management of cases with a view to return to work
• NOT a retirement system

5
What is adjudication?

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

6
Adjudication

• So all claims are adjudicated in that manner?

7
Adjudication

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

8
Adjudication

• Most traumatic injury claims for simple injuries
  (ones with minimal medical treatment, no surgery,
  no need for wage loss compensation) are treated
  as Administrative Closure cases.
• These cases are administratively accepted, as
  long as expenses are lt1500 and no surgery or
  wage loss is requested.

9
Adjudication

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

10
Adjudication

• So, what about the ones that do have to be
  adjudicated? How does that work?
• Lets look at an overview, schematically, of what
  takes place

11

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

12
Development

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

13
Development

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

14
Development

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

15
Where do I fit in?

• The Agency has a rightand a dutyto submit
  information bearing on the case. We do this
  during the development process.
• Most of the Agencys information is going to have
  to come from the person closest to the incident.
  Usually, thats YOU.
• Accident investigation is often a critical part
  of this process

16
Where do I fit in?

• You also need an understanding of whats going on
  and to know what is and isnt covered under the
  Federal Employees Compensation Act (the Act OWCP
  administers) in order to respond appropriately
• Evidence can be submitted electronically now.
  Talk to your workers comp specialist

17
Adjudication

• After development of the case and allowing time
  for response from the claimantor if all
  necessary evidence is present on initial
  reviewthe CE will make a decision on the case.
• So, what is the CE looking for?

18
Adjudication

• Acceptance of a claim requires satisfaction of
  the Five Basics
• Timely filing
• Civil employee
• Fact of injury
• Performance of duty
• Causal relationship

19
Adjudication

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

20

• Timely Filing

21
Timely filing

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

22
Timely filing

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

23
Timely filing

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

24

• Civil Employee

25
Civil employee

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

26
Civil employee

• Usually, the question is easily answered, but
  there can be borderline cases, for example
• LEOs (non-Federal law officers)
• Volunteers (VA volunteers, WOCs, YCC, Job Corps)
• Contractors

27
Civil employee

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

28

• Fact of Injury

29
Fact of Injury

• Claimants burden to support, with evidence, the
  two parts to fact of injury
• 1) Medical and
• 2) Factual

30
Fact of Injury

• MedicalDoes a medical condition exist?
• FactualDid an injury event occur?
• Note There does not need to be a connection
  between these at this point. That issue is
  addressed at causal relation.

31

• Performance of Duty

32
Performance of Duty

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

33
Performance of Duty

• Premises
• - fixed place of employment
• Recreation
• - formally organized
• Union Duties
• - representational activity covered
• Horseplay
• - if together for periods of time
• Personal comfort doctrine

• To From Work
• - not usually covered going and coming rule
• Misconduct
• - violating safety rule or laws
• - negligence not enough
• Intoxication
• - by drug or alcohol
• - must be the proximate cause of injury-well
  look at this in more detail later

34
Performance of Duty-some issues

• Idiopathic Falls
• known, non-work-related, pathology
• intervening object
• Unexplained Fall
• Unknown etiology
• Travel Status
• reasonably incidental and NOT a
• Diversion from Duty
• Assault Cases
• Coworker Harassment or Teasing

35

• Causal Relationship

36
Causal relationship

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

37
Causal relationship

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

38
Causal relationship

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

39
Continuation of Pay
40
Continuation of Pay

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

41
Continuation of Pay

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

42
POP QUIZ!

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

43
COP

• Disability not caused by traumatic injury
• Not a citizen or resident of US or Canada
• No written claim within 30 days
• Injury not reported prior to termination of
  employment
• Injury occurred off premises and not in POD

44
COP

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

45
COP

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

46
COP

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

47
COP

• Proving willful misconduct, intent to injure or
  kill, or intoxication is usually extremely
  difficult.
• Intent or willfulness is inherently difficult
  to prove
• Carelessness ? willfulness

48
COP

• Intoxication Provide all evidence you
  canwitness statements, police reports, tox
  screen results, etc.
• Intoxication ? causation
• Need to prove BOTH that the person WAS
  intoxicated (by drugs or alcohol) AND that it
  was the intoxication that caused the injury.
  Tough standard (and intended to be)

49
COP

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

50
Disputing claims

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

51
Disputing claims

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

52
Disputes

• The key is to remember that CEs are busy and
  dont like to feel like their time has been
  wasted.

53
Questions?
54
Contact Information

• Michael Arighi
• Program Analyst, VACO
• Office of Occupational Safety and Health
  michael.arighi_at_va.gov