Friday, June 19, 2009
ISSUES WITH UNEMPLOYMENT INSURANCE BENEFITS
In this economy, there are many people who are being laid off. Many of you are hoping to receive unemployment insurance benefits to carry you through the difficult period of being in between jobs. But the cost of unemployment insurance is partially borne by your employer and, it has been my experience, that in order to cut costs, many employers are attempting to disqualify laid off employees from unemployment insurance benefits on the ground that the employee was terminated for misconduct. You do have the right to have a hearing on this issue but many should be aware of the law. Under Section 593.3 of the New York Labor Law, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. The term "misconduct" is not defined in the statute. However, the New York State Court of Appeals in Matter of James (34 NY 2d 491) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Unemployment Insurance Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job if an adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including: mere inefficiency, inadequate performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances, good faith errors in judgment or discretion, etc. On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness. There are also other grounds for disqualification of benefits: for example, you will generally not be entitled to benefits if it was determined that you voluntarily terminated your employment without cause. When faced with a denial of benefits, you should contact an attorney (non attorneys who undergo a certain course can also represent you before the Administrative Law Judge hearing) and names of attorneys and others who specialize in this can be obtained from State of New York. Unemployment Insurance Appeal Board, Executive Suite, 9 Bond St., Brooklyn, NY 11201, Tel. (718) 613-3505, Fax (718) 613-3507. Sometimes, these cases are handled on a pro bono basis and I have done several pro bono. But you should also be aware that presently, there is a huge backlog of cases and, in one matter I handled, due to the complexity of issues, multiple hearings were required. The process may sometimes take a considerable amount of time until a final determination is made.
Thursday, June 18, 2009
CUSTODY ISSUES
What if you are the parent with sole custody of your child? What if the other parent is, in fact, completely unfit to be a parent due to drugs, alcohol, mental health issues, incarceration, etc.? What happens if, excuse the morbidity, you die or become completely incapacitated? Remember - an award of sole custody does not mean the other parent's parental rights have been terminated. Custody of the child may go to the other parent or other relatives of you and/or the other parent may fight over custody and visitation. Well nothing can prevent someone from starting a litigation but one thing you can do is express your wishes in a will and a Standby Guardian Designation. Standby Guardianship is another alternative for transferring the custody and the care of children to another person. Standby Guardianship allows the custodial parent to make future plans for his or her children without having to legally transfer decision-making power. I usually recommend both a will and a Standby Guardian Designation but here is a discussion of the Standby Guardian Designation Law in New York State (Surrogates Procedure Act Section 1726):
I. Designation of Standby Guardian. New York's standby guardianship law is developed for parents who are fatally ill or progressively, chronically ill, and who want to plan for their children's future. There are two ways that a standby guardianship may be formed: by petition, prior to a triggering event; or by designation at any time, ideally to be followed by petition even after a triggering event. A particular person may be nominated as standby guardian under either method. The early-petition strategy requires the parent to declare that she has a "progressively chronic illness" or an "irreversibly fatal illness. She must state the basis for this, although she does not have to file a physician's statement. [Surrogate 1726.3(b)(ii)] The petition must list any or all of four triggering events: mental incapacity, physical debilitation plus consent, consent alone and death. [Surrogate 1726.3(b)(i) and (d)(ii) and (e)(iii)]
The designation strategy, on the other hand, is a step toward guardianship, with formalization through the court occurring at some later point. The parent prepares a document that lists two triggering events: mental incapacity and physical debilitation plus consent. An optional designation form is provided in the statute. By contrast with the early-petition process, the statute does not require death to be listed as a triggering event, although legal practitioners' designation forms in New York City do so list it. The law permits the designation to go forward if the parent dies after the designation is created but before the petition is filed. [Surrogate 1726 4.(b)] In practical terms, the major difference between the two strategies is that the early-petition process allows a parent to resolve all issues relating to future care of her child in court, before she becomes severely incapacitated. The designation process allows the plans to develop privately, and shifts the administrative burden to the standby guardian. The parent retains "full parental rights" after the guardianship begins. [Surrogate 1726.4(b)(iii)] This amounts to concurrent authority shared by the parent and the standby guardian. [Surrogate 1726.7] In practical terms the parent has primary authority unless she is unable to exercise it. The parent may revoke the designation either orally, in writing, or in any other way that indicates intent. [Surrogate 1726.4(f)] (Practitioners forms used in New York City state that a revocation is to be in writing.] The designation is filed in court together with a petition requesting appointment of the standby guardian.
II. Agreement of the Non-Custodial Parent. The standby guardianship law is silent as to the involvement of the non-custodial parent. He is not required to sign the designation. The legal provisions applicable to general guardianships require notice to be given to parents if they are in the state and their residences are known. Moreover it says that "No process shall be necessary to a parent who has abandoned the infant or is deprived of civil rights or divorced from the parent having legal custody of the infant or an incompetent who is otherwise judicially deprived of the custody of the infant…." [Surrogate 1705.1(a) and .2] At a minimum, there must be notice to the parent, or an affidavit describing why no notice is necessary, or consent of the parent. (Attorneys state that in Family Court, where standby guardian cases usually are heard, judges typically would require notice to an out-of-state parent if the residence is known.)
III. Role of the Standby Guardian. A standby guardian's authority does not begin until one of the triggering events listed in the petition or designation document occurs. Upon the occurrence, the standby guardian must gather the required evidence. Evidence would be a physician's determination of incapacity or debilitation, a parent's written, attested consent, a death certificate or funeral home receipt. Under the early-petition strategy the standby guardian has 90 days to gather the evidence and file it in court to activate the guardianship. [Surrogate 1726.3(e)] Under the designation strategy, the standby guardian has 60 days to do this, and the evidence must be accompanied by a petition for appointment. [Surrogate 1726.4 ( c)] If the documents are not filed within 60 days, the guardian's temporary authority lapses. If lapsed, a later filing can occur, and usually the request for renewed authority is granted. [Surrogate 1726.4(c)] The standby guardian's authority is concurrent with the parent's, and may include parental kinds of decisions relating to the personal welfare of the child, unless Surrogate's Court has also granted authority over the child's property. [Surrogate 1726.7] Once the guardianship becomes permanent, unless it is revoked or rescinded, it lasts until the child's majority or until another intervening event like the child's marriage. [Surrogate 1707.2]
IV. Court Process. Court process for a standby guardianship can commence either with filing a petition for appointment prior to a triggering event; or with filing a designation document along with a petition for appointment after the triggering event occurs. The law states that the filing is for "the sole purpose of safekeeping and shall not affect the validity of the appointment or designation." [Surrogate 1726.8(a)] In other words, the guardianship is not effective until the court makes a finding based on declarations in the designating document and the petition. The court must ascertain whether the guardianship will promote the child's best interests. [Surrogate 1726.3.(d)(I). See also Matter of Guardianship of Rene O.C.606 NYS 2d 872 (1993)] To do that, a court hearing is implied, even if the petition is uncontested. [Matter of Guardianship of F.H., 632 NYS 2d 777 (1995)] Notice is given to any parent living in the state in a known residence, unless the parent is adjudicated unfit, incompetent, etc. Notice must also be given to children named in the petition who are 14 years or older. [Surrogate 1705] A parent's presence in court can be waived, if she is too ill to appear. [Surrogate 1726.3 ( c)]
Under the early-petition strategy, once the court has made a decision, the matter lies dormant until one of the specified triggering events occurs. The standby guardian then files confirming documents within 90 days of the event, along with a petition for appointment as guardian. [Surrogate 1726.3(e)] Under the designation strategy, the documents are filed within 60 days of the triggering event, along with a petition for appointment. [Surrogate 1726.4( c)] The court then examines whether the facts are as stated and the child's interests will be promoted. [Surrogate 1726.4(e)] Note that this process can take place either in Family Court under the Family Court Act, Title 6, or in Surrogate Court under the Surrogate's Act, Title 17.
Overall, the New York Court retains a great deal of flexibility and discretion.
See McKinney's Consolidated Laws of New York Annotated Surrogate's Court Procedure Act, Chapter 59-A of the Consolidated Laws, Article 17 – Guardians and Custodians, Section 1705, 1707, 1726.
I. Designation of Standby Guardian. New York's standby guardianship law is developed for parents who are fatally ill or progressively, chronically ill, and who want to plan for their children's future. There are two ways that a standby guardianship may be formed: by petition, prior to a triggering event; or by designation at any time, ideally to be followed by petition even after a triggering event. A particular person may be nominated as standby guardian under either method. The early-petition strategy requires the parent to declare that she has a "progressively chronic illness" or an "irreversibly fatal illness. She must state the basis for this, although she does not have to file a physician's statement. [Surrogate 1726.3(b)(ii)] The petition must list any or all of four triggering events: mental incapacity, physical debilitation plus consent, consent alone and death. [Surrogate 1726.3(b)(i) and (d)(ii) and (e)(iii)]
The designation strategy, on the other hand, is a step toward guardianship, with formalization through the court occurring at some later point. The parent prepares a document that lists two triggering events: mental incapacity and physical debilitation plus consent. An optional designation form is provided in the statute. By contrast with the early-petition process, the statute does not require death to be listed as a triggering event, although legal practitioners' designation forms in New York City do so list it. The law permits the designation to go forward if the parent dies after the designation is created but before the petition is filed. [Surrogate 1726 4.(b)] In practical terms, the major difference between the two strategies is that the early-petition process allows a parent to resolve all issues relating to future care of her child in court, before she becomes severely incapacitated. The designation process allows the plans to develop privately, and shifts the administrative burden to the standby guardian. The parent retains "full parental rights" after the guardianship begins. [Surrogate 1726.4(b)(iii)] This amounts to concurrent authority shared by the parent and the standby guardian. [Surrogate 1726.7] In practical terms the parent has primary authority unless she is unable to exercise it. The parent may revoke the designation either orally, in writing, or in any other way that indicates intent. [Surrogate 1726.4(f)] (Practitioners forms used in New York City state that a revocation is to be in writing.] The designation is filed in court together with a petition requesting appointment of the standby guardian.
II. Agreement of the Non-Custodial Parent. The standby guardianship law is silent as to the involvement of the non-custodial parent. He is not required to sign the designation. The legal provisions applicable to general guardianships require notice to be given to parents if they are in the state and their residences are known. Moreover it says that "No process shall be necessary to a parent who has abandoned the infant or is deprived of civil rights or divorced from the parent having legal custody of the infant or an incompetent who is otherwise judicially deprived of the custody of the infant…." [Surrogate 1705.1(a) and .2] At a minimum, there must be notice to the parent, or an affidavit describing why no notice is necessary, or consent of the parent. (Attorneys state that in Family Court, where standby guardian cases usually are heard, judges typically would require notice to an out-of-state parent if the residence is known.)
III. Role of the Standby Guardian. A standby guardian's authority does not begin until one of the triggering events listed in the petition or designation document occurs. Upon the occurrence, the standby guardian must gather the required evidence. Evidence would be a physician's determination of incapacity or debilitation, a parent's written, attested consent, a death certificate or funeral home receipt. Under the early-petition strategy the standby guardian has 90 days to gather the evidence and file it in court to activate the guardianship. [Surrogate 1726.3(e)] Under the designation strategy, the standby guardian has 60 days to do this, and the evidence must be accompanied by a petition for appointment. [Surrogate 1726.4 ( c)] If the documents are not filed within 60 days, the guardian's temporary authority lapses. If lapsed, a later filing can occur, and usually the request for renewed authority is granted. [Surrogate 1726.4(c)] The standby guardian's authority is concurrent with the parent's, and may include parental kinds of decisions relating to the personal welfare of the child, unless Surrogate's Court has also granted authority over the child's property. [Surrogate 1726.7] Once the guardianship becomes permanent, unless it is revoked or rescinded, it lasts until the child's majority or until another intervening event like the child's marriage. [Surrogate 1707.2]
IV. Court Process. Court process for a standby guardianship can commence either with filing a petition for appointment prior to a triggering event; or with filing a designation document along with a petition for appointment after the triggering event occurs. The law states that the filing is for "the sole purpose of safekeeping and shall not affect the validity of the appointment or designation." [Surrogate 1726.8(a)] In other words, the guardianship is not effective until the court makes a finding based on declarations in the designating document and the petition. The court must ascertain whether the guardianship will promote the child's best interests. [Surrogate 1726.3.(d)(I). See also Matter of Guardianship of Rene O.C.606 NYS 2d 872 (1993)] To do that, a court hearing is implied, even if the petition is uncontested. [Matter of Guardianship of F.H., 632 NYS 2d 777 (1995)] Notice is given to any parent living in the state in a known residence, unless the parent is adjudicated unfit, incompetent, etc. Notice must also be given to children named in the petition who are 14 years or older. [Surrogate 1705] A parent's presence in court can be waived, if she is too ill to appear. [Surrogate 1726.3 ( c)]
Under the early-petition strategy, once the court has made a decision, the matter lies dormant until one of the specified triggering events occurs. The standby guardian then files confirming documents within 90 days of the event, along with a petition for appointment as guardian. [Surrogate 1726.3(e)] Under the designation strategy, the documents are filed within 60 days of the triggering event, along with a petition for appointment. [Surrogate 1726.4( c)] The court then examines whether the facts are as stated and the child's interests will be promoted. [Surrogate 1726.4(e)] Note that this process can take place either in Family Court under the Family Court Act, Title 6, or in Surrogate Court under the Surrogate's Act, Title 17.
Overall, the New York Court retains a great deal of flexibility and discretion.
See McKinney's Consolidated Laws of New York Annotated Surrogate's Court Procedure Act, Chapter 59-A of the Consolidated Laws, Article 17 – Guardians and Custodians, Section 1705, 1707, 1726.
Wednesday, June 17, 2009
LANDLORD/TENANT MATTERS IN NASSAU COUNTY
At least once to twice a month, I am in Landlord/Tenant Housing Court in Nassau County representing tenants. One of the many issues I am faced with, which makes Nassau County much different than New York City, is that most of the leases are not rent stabilized/rent controlled or have other statutory protection. Many of them are just one year (I've seen some two year) leases or oral leases (oral leases in New York are also known as a month to month tenancy). That means at the end of the term of the written lease, the landlord (or you) is not obligated to renew for any reason or, if you wish to remain, the landlord may ask for a high increase. If an oral lease, the landlord (and you) may at any time (upon 30 days notice) seek to terminate the lease for any reason or, if you wish to remain, the landlord may ask for a high increase. Thus, if you are from New York City and move to Nassau County and do not enter into a lease for an apartment subject to rent regulation, you may be faced with the above issues, specifically, no right of renewal and no statutory fixed rent increases (or rarely decreases) but rents fixed at the discretion of the landlord. And note: in this economy, landlords want good tenants so if you have always paid on time, at the end of your lease, or upon 30 days notice if an oral lease, maybe you can ask your landlord for a reasonable rent decrease or other concession - but if the landlord says "No", you must be willing to remain on the landlord's terms or move to new premises. In a later blog, I will discuss other issues that arise when you rent in Nassau County.
Saturday, June 13, 2009
OWCP Hides The Rules and Takes Away Your Rights
Since the late 90's OWCP has posted the procedure manual and other reference materials explaining how claims are to be adjudicated and otherwise addressing specific policy issues. That was a tremendous improvement over the situation when I first started handling these cases when there was a massive paper procedure manual. Updates would arrive in the form of pages that needed to get replaced in the enormous paper document and you would need to replace pages that had been revised.
Keep in mind that FECA is a unique law in that it creates what is essentially a self insurance process for the federal government. There is no appeal out of this process into any court, it is a closed system. The people setting policy are the same people responsible for overseeing the claims process. The statute contains a section, called a "door-closing provision", that bars you from appealing this process into any court. Federal courts consider this system to be "non-adversarial" and there is a long tradition of rules that were designed to protect the injured workers. OWCP has an obligation to help you with your case. This is not like a normal litigation system where each side is simply protecting itself and wins by beating you out of benefits.
Unfortunately, the powers that be at OWCP no longer understand their obligation to the injured worker. Today, this is a system that views injured workers as whining frauds who get in the way of demonstrating to Congress that costs have been reduced and interferes with OWCP management's ability to keep the employing agencies happy.
This shift seemed to reach a tipping point about 5 - 6 years ago. It was at that point that the people running the fed comp process at OWCP decided to get rid of the old way of doing things where they put all the rules applicable to these cases out there for anyone to find and understand. Obviously, they could not do this in an open and honest way, they had to do this by stealth in a way that would not seem obvious.
One of the first things they did was to take down the easily searchable versions of the procedure manual and other policy documents, and replace them with non-searchable gigantic pdf files. Instead of being able to do a text search for a term, now you need to read through pdf documents, some of which can be a thousand pages long, just to find references to a term.
In the same vein, OWCP also simply stopped updating the procedure manual. If you look at the table of contents you can see from the dates that sections were last updated that the procedure manual seems to have been abandoned. It is the same with FECA Bulletins, Memos, and Circulars. They no longer put any substantive rules out there for you to find.
How can this be? There used to be dozens of updates and policy memos every year. There used to be a quarterly summary of significant ECAB decisions alerting examiners to new issues and to recurring errors. In 1999 and 2000 there were two substantial policy documents discussing steps the district offices must take to make the directed medical selection process more fair.
Now, instead of updating the published rules and issuing policy statements explaining how the program is supposed to run, they now do the updates by way of telephone conference calls and internal emails, that they refuse to release in response to FOIA and PA requests, to district directors addressing updates to the program. It used to be that when they released these documents listing the rules, you could then point out that a claim was not being adjudicated in accordance with the published rules. What an inconvience, OWCP being held to a set of rules rather than just deciding cases on an ad hoc basis. Horror of horrors, decisions overturned and deserving claimants awarded benefits that had been denied. We can't have that anymore.
All of this secretiveness seems to be part of the world view shift that happened at OWCP earlier this decade.
The federal comp process has lost its way. Its horribly obvious that the people running this program would abolish the program if they could get away with it. Instead, they are eviscerating it. To these folks, their "customer" is the employing agency. The injured worker is just an inconvenient whiner getting in the way of servicing the employing agency.
Why doesn't the procedure manual get updated any more? Seemingly, this allows OWCP to hide its actions from scrutiny.
The shift away from openness has also come with an increasingly hostile approach at ECAB, the only review of cases that is not completely under the thumb of OWCP. Clearly, ECAB is also now comprised of persons who view the protection of employing agency whims as far outweighing concern for protecting injured workers. ECAB has steadily eliminated rules that once protected injured workers from unfair decisions. This process culminated in the waning months of 2008 with the issuance of a new rule cutting in half to six months, the time one has to appeal a decision to ECAB.
Typical of the disingenuous manner in which ECAB has conducted itself they issued a statement explaining that they were actually increasing the time for an appeal from three months to six months. While technically, the old rule said you had 90 days to appeal, but for good cause you could appeal for a year. In practice, they have always accepted all appeals for one year. Now the rule is six months, and they can waive that under special circumstances and extend it to a year. Clearly, all but the most extraordinary circumstances will result in an appeal after 6 months being denied.
When ECAB described the rule change, they explained that the old rule only allowed an appeal for 90 days, and they had doubled that to 180. They neglected to mention that the old 90 day rule was NEVER interpreted as 90 days, that ALL appeals were accepted automatically for one year. Now you only have six months.
So if you can't find information to help you understand your situation, don't be surprised. OWCP seems to want it that way.
Keep in mind that FECA is a unique law in that it creates what is essentially a self insurance process for the federal government. There is no appeal out of this process into any court, it is a closed system. The people setting policy are the same people responsible for overseeing the claims process. The statute contains a section, called a "door-closing provision", that bars you from appealing this process into any court. Federal courts consider this system to be "non-adversarial" and there is a long tradition of rules that were designed to protect the injured workers. OWCP has an obligation to help you with your case. This is not like a normal litigation system where each side is simply protecting itself and wins by beating you out of benefits.
Unfortunately, the powers that be at OWCP no longer understand their obligation to the injured worker. Today, this is a system that views injured workers as whining frauds who get in the way of demonstrating to Congress that costs have been reduced and interferes with OWCP management's ability to keep the employing agencies happy.
This shift seemed to reach a tipping point about 5 - 6 years ago. It was at that point that the people running the fed comp process at OWCP decided to get rid of the old way of doing things where they put all the rules applicable to these cases out there for anyone to find and understand. Obviously, they could not do this in an open and honest way, they had to do this by stealth in a way that would not seem obvious.
One of the first things they did was to take down the easily searchable versions of the procedure manual and other policy documents, and replace them with non-searchable gigantic pdf files. Instead of being able to do a text search for a term, now you need to read through pdf documents, some of which can be a thousand pages long, just to find references to a term.
In the same vein, OWCP also simply stopped updating the procedure manual. If you look at the table of contents you can see from the dates that sections were last updated that the procedure manual seems to have been abandoned. It is the same with FECA Bulletins, Memos, and Circulars. They no longer put any substantive rules out there for you to find.
How can this be? There used to be dozens of updates and policy memos every year. There used to be a quarterly summary of significant ECAB decisions alerting examiners to new issues and to recurring errors. In 1999 and 2000 there were two substantial policy documents discussing steps the district offices must take to make the directed medical selection process more fair.
Now, instead of updating the published rules and issuing policy statements explaining how the program is supposed to run, they now do the updates by way of telephone conference calls and internal emails, that they refuse to release in response to FOIA and PA requests, to district directors addressing updates to the program. It used to be that when they released these documents listing the rules, you could then point out that a claim was not being adjudicated in accordance with the published rules. What an inconvience, OWCP being held to a set of rules rather than just deciding cases on an ad hoc basis. Horror of horrors, decisions overturned and deserving claimants awarded benefits that had been denied. We can't have that anymore.
All of this secretiveness seems to be part of the world view shift that happened at OWCP earlier this decade.
The federal comp process has lost its way. Its horribly obvious that the people running this program would abolish the program if they could get away with it. Instead, they are eviscerating it. To these folks, their "customer" is the employing agency. The injured worker is just an inconvenient whiner getting in the way of servicing the employing agency.
Why doesn't the procedure manual get updated any more? Seemingly, this allows OWCP to hide its actions from scrutiny.
The shift away from openness has also come with an increasingly hostile approach at ECAB, the only review of cases that is not completely under the thumb of OWCP. Clearly, ECAB is also now comprised of persons who view the protection of employing agency whims as far outweighing concern for protecting injured workers. ECAB has steadily eliminated rules that once protected injured workers from unfair decisions. This process culminated in the waning months of 2008 with the issuance of a new rule cutting in half to six months, the time one has to appeal a decision to ECAB.
Typical of the disingenuous manner in which ECAB has conducted itself they issued a statement explaining that they were actually increasing the time for an appeal from three months to six months. While technically, the old rule said you had 90 days to appeal, but for good cause you could appeal for a year. In practice, they have always accepted all appeals for one year. Now the rule is six months, and they can waive that under special circumstances and extend it to a year. Clearly, all but the most extraordinary circumstances will result in an appeal after 6 months being denied.
When ECAB described the rule change, they explained that the old rule only allowed an appeal for 90 days, and they had doubled that to 180. They neglected to mention that the old 90 day rule was NEVER interpreted as 90 days, that ALL appeals were accepted automatically for one year. Now you only have six months.
So if you can't find information to help you understand your situation, don't be surprised. OWCP seems to want it that way.
Wednesday, May 20, 2009
New OWCP Tactic
I have noticed a sneaky, new tactic being used by claims examiners to get rid of unwanted medical reports. It is based on a long-standing rule that when OWCP sends you to a directed medical examination (i.e., a second opinion or referee exam), and that doctor does not provide an adequate medical report, then OWCP is supposed to request an addendum from the doctor. If the doctor still does not give a good enough explanation, then that doctor's report is set aside and OWCP must send you to a new doctor.
What seems to be happening with increasing frequency is that this rule is being used as a pretext for getting rid of doctors' reports that do not fit with the claims examiner's view of a case.
I have had several clients over the last few months who were sent out for directed exams. The doctors wrote reports that were no better or worse than other reports they'd written in dozens of other cases. EXCEPT this time their reports supported the injured workers' cases. The claims examiners proceeded to invent reasons why the reports were not good enough, requested clarifications, and then declared that the clarifications were not good enough either. In this way, they were able to send the claimants to new doctors hoping to get an opinion they liked.
I have had several clients over the last few months who were sent out for directed exams. The doctors wrote reports that were no better or worse than other reports they'd written in dozens of other cases. EXCEPT this time their reports supported the injured workers' cases. The claims examiners proceeded to invent reasons why the reports were not good enough, requested clarifications, and then declared that the clarifications were not good enough either. In this way, they were able to send the claimants to new doctors hoping to get an opinion they liked.
This tactic also sends a message to physicians that if they want more patients sent to them for evaluation and reports, they better say what they think OWCP wants them to say!
Be on guard and don't let yourself fall victim to this new trick!
Wednesday, April 1, 2009
Beware of Biased Claims Examiners
FECA is considered a “non adversarial” system. Therefore, you would expect the program administrators to be helpful rather than hostile to the injured workers they are obligated to protect. My experience has been just the opposite. Here are some examples:
- I have one client who was serving in a civilian capacity at a military base high in the mountains of Afghanistan when he suffered a fall and ended up needing a hernia repair, hip replacement, and knee surgery. It is almost four years later, and the claim was again denied by the same claims examiner for the third time. Hearings and Review keeps remanding the case, telling the examiner that he has adjudicated the case in error. The examiner then sits on the case for nine months to a year, and denies it again disregarding the remand instructions.
- Some time ago, a claims examiner in the Philadelphia district office told me that all of my clients are liars, and the only reason they need to have a lawyer is because they are dishonest. This same examiner telephones injured workers and uses various scare tactics to make them think their cases will go badly because they have a lawyer representing them. Telling them the only reason they need a lawyer is because they are frauds. Workers that rebuff his threats have received unfavorable decisions and written accusations of fraud. When these wrongful actions are brought to the attention of the Philadelphia district office and the National office, the decisions are vacated, but this examiner continues his job without recrimination. He recently sent one of my clients (a decorated and disabled veteran) a letter terminating his benefits for allegedly committing fraud, without any basis for doing so. That decision was quickly vacated by his superiors who blandly dismissed the entire episode as a routine error. This is a system that is run by people who think are obsessed with outsourcing to the private sector, think that workers are frauds, and view this entire process as one that ought to be abolished.
- I recently came across this posting on the Internet from someone who appears to be an examiner in the Dallas district office. Her comment indicates that, in her opinion, all but 2% of claimants are frauds: http://bighollywood.breitbart.com/bgale/2009/02/05/attach-strings-to-everyone-taking-taxpayer-money-not-just-corporations/ (scroll down to PAM L’s comment dated 2/5.). This is what many OWCP employees think about you. Keep in mind, this is a "non-adversarial" process.
Tuesday, March 24, 2009
No COLA for FECA Claimants
In FECA Bulletin 09-02, OWCP explained that federal employees receiving federal workers compensation benefits will not be receiving a COLA this year:
The cost of living adjustments granted to a compensation recipient under the FECA are
based on the “Consumer Price Index for Urban Wage Earners and Clerical Workers” (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent, determining the amount of the CPI increase granted to claimants. 5 U.S.C. §
8146a establishes the base month as December.
December 2007 had a CPI-W level of 205.777 per BLS. The CPI-W level for December 2008 was reported as 204.813 by BLS, which is in fact a decrease of 0.5% from the December 2007 level. As a result of this decline in the CPI-W level, there will not be a cost of living increase for FECA recipients in 2009.
At the same time, SSA gave Social Security recipients a 5.8% increase. While OWCP personnel have their explanation as to why they gave no increase, you can see the disparity between how a politically powerful group (SSA benefit recipients) versus recipients of benefits from a program that does not care about the welfare of recipients are treated.
The cost of living adjustments granted to a compensation recipient under the FECA are
based on the “Consumer Price Index for Urban Wage Earners and Clerical Workers” (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent, determining the amount of the CPI increase granted to claimants. 5 U.S.C. §
8146a establishes the base month as December.
December 2007 had a CPI-W level of 205.777 per BLS. The CPI-W level for December 2008 was reported as 204.813 by BLS, which is in fact a decrease of 0.5% from the December 2007 level. As a result of this decline in the CPI-W level, there will not be a cost of living increase for FECA recipients in 2009.
At the same time, SSA gave Social Security recipients a 5.8% increase. While OWCP personnel have their explanation as to why they gave no increase, you can see the disparity between how a politically powerful group (SSA benefit recipients) versus recipients of benefits from a program that does not care about the welfare of recipients are treated.
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