LAW OFFICE NOTES
September 2008
James R. Linehan PC
7301 Ranch Road 620N
155-328
Austin, Texas 78726
800-266-9535 TOLL FREE
Greetings!

It is time again to answer some common questions that are routinely asked by claimants in their Veterans disability, federal workers' compensation, medical disability retirement and social security disability claims.  If you have a specific question you for which you would like an answer, please feel free to contact me directly.
 
Sincerely,
Jim Linehan
 
I am an injured veteran with a 30% service connected disability that was granted more than 20 years ago.  Is it true the VA can reduce my disability rating if I now ask for an increased rating?
No. A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. 38 CFR §3.951(b)

So is it true that if I file for an increased VA disability rating now, I have to re-open my old claim with the VA?
No. Once a veteran has been granted service connection for a disability, it is extremely easy for the veteran to file a claim for an increased rating that the VA is obligated to adjudicate. A claim for an increase is always "a new claim, not subject to the provisions of 38 U.S.C.§§ 7104(b) and 7105(c) prohibiting reopening of previously disallowed claims except upon new and material evidence under 5108(c)."  In other words, a veteran does not have to submit new and material evidence in support of a claim for an increased rating.

I am a federal employee who was injured on my job.  Is it true that my federal employer can force me to choose their doctor as my initial treating doctor?
No.  You are permitted to choose the doctor first who will treat your injury. 5 U.S.C. § 8103

But if I then want to change treating doctors, is it true that I must obtain permission first from the federal government?
Yes.  Once you have chosen your treating doctor, in order to change doctors you must submit a written request to the U.S. Office of Workers' Compensation Programs (OWCP) fully explaining the reasons for your request.  The OWCP may approve your request at its own discretion.  20 C.F.R. §10.316(b)

If the OWCP denies my request to change doctors, is it true that can I ask my federal employer to authorize a change?
No. Only the OWCP may authorize a change in doctors; not your federal employer. 20 C.F.R. §10.316(b)

Is it true that federal employees who are injured on the job have no right to go to any court on their OWCP claim?
Yes.  Federal employees have no rights to go to any court for review or appeal of their OWCP claim. 5 U.S.C. §8128

Then if I am injured on my federal job, is it true that I can avoid going through the OWCP process by waiving my rights to federal workers' compensation and then go to court?
No.  Federal laws are clear. "No employer or other person may require an employee or other claimant to enter into any agreement, either before or after an injury or death, to waive his or her right to claim compensation under the federal employees compensation act (FECA). No waiver of compensation rights shall be valid."  20 C.F.R. §10.15

I am a disabled federal employee on medical disability retirement.  I was collecting OWCP compensation for my injury years ago.  Is it true that I can switch back to the higher paying OWCP benefits?
Yes.  You can elect to receive the higher paying OWCP benefits, if qualified, at any time and as often as you choose.  22 U.S.C. §4048

I am a veteran who was injured in-service.  Is it true the VA will now pay an attorney to represent my VA disability claim if I win?
Yes.  For many many decades it was federal policy was to discourage attorney representation of VA claimants. This was effectively done by making it a federal crime for an attorney to charge more than $10 as a fee to represent a claimant on a VA claim.  But in 2006, Congress eliminated some, but not all of the barriers to a VA clamant hiring an attorney for representation before the VA.  The new law authorizes agents and attorneys to charge a fee for representation at the VA agency level so long as (1) a Notice of Disagreement (NOD) has been filed; and (2) the NOD was filed on or after June 20, 2007.  The new law then requires the VA, not the veteran, to directly pay the attorney a fee no more than 20% of the back-pay benefits awarded the veteran.  Pub. L. No. 109-461, 120 Stat. 3403 (2006)

Is it also true that the Social Security Administration will pay my attorney for me if I win my social security disability case?
Yes.  SSA is responsible for authorizing and processing direct fee payment to your representative when: a valid fee agreement or fee petition exists, the representative is eligible for direct payment, and a favorable determination is made that results in past-due Title II and/or Title XVI benefits.

Is it true then that the OWCP will pay my attorney for me if I win my OWCP claim?
No.  Federal employees filing for OWCP compensation benefits are solely responsible for all attorneys' fees and costs on their claim. The claimant will not be reimbursed by OWCP, nor is OWCP in any way liable for the amount of the fee. 20 C.F.R. §10.702

Trying to understand the laws and regulations surrounding disability benefits can be incredibly confusing for the layman. It's almost impossible unless you have devoted your education and career to understanding this specific niche. If you want to cut through the all the confusing obstacles that stand in your way, give the offices of James R. Linehan a call as soon as possible. If too much time passes, you could miss out on your
Veterans Disability,
Social Security Disability,
 Federal Workers Compensation OWCP,
or
OPM medical retirement benefits.
For your convenience and quicker communications, Click here oovoo  and download this free program. It will only take a minute.  Once downloaded to your computer, add my name as follows: "jimlinehan" to your new ooVoo contact list.  You will then be able to upload and transfer any documents or files (if you have them scanned into electronic format) directly and immediately to me through oovoo and you will also be able to talk with me "live" with full video and audio!
 
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