An on the job injured Federal Employee must keep in mind that the Federal Employees’ Compensation Act (FECA) that is administered by the Office of Workers’ Compensation Programs (OWCP) is not a disability retirement program. The number one task for a Claims Examiner is to take timely intervention actions to obtain work tolerance limitations that will require you to return to some type of work. One such intervention action allowed under the FECA is a second opinion examination/evaluation. The authority for second opinion medical examinations is found at 5 U.S.C. 8123(a).
Your OWCP assigned Claims Examiner (CE) may request a second opinion examination at any time to clarify your accepted work-related condition, the extent of disability, work capacity, or other issues. If the CE has reason to believe that a claimant is no longer disabled due to the accepted work injury, or no longer has objective residuals of the accepted injury, but the attending physician (AP) maintains that you have continued residuals or disability from the work injury and does not submit sufficient medical rationale to support that opinion, the CE will order a Second Opinion Examination.
The AP is the primary source of medical evidence in most cases and, as such, is expected to provide a rationalized medical opinion based on a complete medical and factual background in order to resolve any pending issues in a case. In certain circumstances, such as, where the AP’s report does not meet the needs of the OWCP, the OWCP may schedule a second opinion examination (SECOP).
The decision to refer a case for a second opinion examination rests with the CE, although such an exam may be recommended by a Field Nurse (FN) or District Medical Advisor (DMA), or requested by the employing agency.
A Second Opinion Specialist will typically be selected who is administratively qualified in the appropriate branch of medicine, as outlined in the Federal Employee’s Compensation Act (FECA) Procedure Manual. Second Opinion Examinations are generally conducted by a physician selected by a medical referral group that has contracted with the OWCP to provide second opinion medical referrals. The methods for selecting second opinion physicians are more flexible, since a strict rotation of physicians is required for this type of examination.
If the medical referral group is unable to schedule the necessary appointment in accordance with the needs of the OWCP, the Office of Workers’ Compensation can use the Medical Management application for this purpose.
A fitness for duty examination directed by the employing agency will not be considered a second opinion examination; however, if the findings or conclusions of such an exam differ materially from those of the AP, the CE may consider a second opinion referral.
Where an emotional condition is the only work-related condition known to be present, a referral can be made to a Psychiatrist or a Clinical Psychologist (as long as the file contains no indication that medication for a psychological condition is being used). Referral to a Clinical Psychologist may be made even if the Attending Physician is a Psychiatrist, but not where psychogenic overlay is felt to be present, as these cases presuppose a connection between the psychological condition and its physical manifestation which can best be addressed by a Psychiatrist.
If the issue for determination is the causal relationship between a workplace injury/factor and a claimed condition or a claimant’s ability to perform the date of injury position or some other type of modified work, a referral can be made to a specialist in occupational medicine, even if the attending physician is an Orthopedist, Neurologist or some other specialty. As a sub-specialty under the Board of Preventive Medicine, Occupational Medicine Physicians are specialists in the field of workplace injuries and illnesses and their causal associations. They also specialize in addressing fitness for duty relevant to the employee’s work environment.
The CE will generally furnish the Second Opinion Specialist a description of the reason(s) for requesting the examination, a statement of accepted facts (SOAF), a list of pertinent questions to be resolved or issues to be addressed, copies of pertinent medical reports from your case record, including diagnostic test results if applicable and a blank Form OWCP-5c providing work tolerance limitations if appropriate. Although a CE has the authority to order a second opinion anytime; typically, a second opinion determination will have the weight of medical evidence to be relevant for 18 months.
If your AP is a General Practitioner and the Second Opinion Physician is a Board-Certified Specialist in the appropriate specialty, and they differ with respect to an issue, such as, diagnosis or causal relationship, with all other factors in their medical reports being equal, the opinion of the physician who has training, knowledge, and Board-Certification in a specialized medical field related to the claimant’s specific injury will usually have greater probative value concerning medical questions pertaining to that field than the opinions of other physicians. In determining the weight of medical opinion, the CE will ensure that all factors in both medical reports are equal prior to assigning the weight to a physician based on medical specialization alone.
If you have been on the OWCP Periodic Rolls or have been paid regularly on the Daily Rolls for over 12 consecutive months, a second opinion could be coming your way. If your doctor only responds to the OWCP with a Form CA-17, a second opinion could be coming your way. If your physician requests an authorization for an elective evasive procedure, a second opinion could be coming your way. If your doctor is trying to get your case expanded for medical conditions not initially accepted, a second opinion could be coming your way. If you are being paid by the OWCP based on a lost wage-earning capacity decision for 24 months, a second opinion could be coming your way. If you have been on the periodic rolls for 30 months and have never been evaluated by an OWCP Ordered Second Opinion Physician, consider yourself lucky.
I can assure you that the Claims Examiner will never, ever give up in obtaining work tolerance limitations, no matter how long you have been on the OWCP periodic rolls or how old you are. Based on my many years of experience, I believe 85%, if not more, of second opinion evaluations result in either work tolerance limitations or full duty releases. It is not unusual for a second opinion examination to last no more than 15 to 30 minutes at best.
Total Disability Determinations made by SSA, Veterans Administration or the Office of Personnel Management have no bearing on the OWCP. Under the FECA, only those injured workers who have had both legs, or both arms, or hands amputated or totally blind in both eyes are considered by the OWCP to be permanently disabled. If that doesn’t apply to you, then the OWCP considers you to be Temporary Total Disabled (TTD) and that you will eventually be able to return to work. Also, pain alone is a subjective symptom and, as such, not a compensable condition.
Second Opinion Evaluations can be challenged if you have a competent Representative that has a firm understanding of the complexity related to due process under the FECA. You must ask yourself who would have a better understanding of the FECA and the inner workings of an OWCP District Office than a retired OWCP Journeyman Quality Case Management Claims Examiner who can competently represent me and ensure that all parties concerned are not taking shortcuts to circumvent my due process rights under the FECA.
Please note that the information provided above can be verified and found in the FECA Procedure Manual.