LAW OFFICE NOTES
August 6, 2009
James R. Linehan PC
4 NE 10th Street, No. 502
Oklahoma City, OK 73104
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
 
My mother was a federal employee.  She was severely injured on her job and collected federal workers' compensation benefits (OWCP) for years.  She passed away last year in another state.  She had no money or assets to speak of when she died except some federal death benefits.  Now, the OWCP is coming after me.  They say that they mistakenly overpaid her$25,000.00 in OWCP benefits when she was alive and since I represent her estate that I owe them that money.  Can they do this to me?

Yes they can and will. (Frightening isn't it?)  

The USDOL OWCP is a federal agency that by law does not answer to the US Congress or any United States Court of Law.  Click here.

On June 15, 2009 the OWCP without much public notice, if any,  issued to itself a self-created policy FM 09-04 that allows the OWCP to come after the estates, survivors and representatives of deceased federal workers for any alleged overpayments the OWCP may have made on a federal workers' compensation claim. 

According to OWCP Director Douglas Fitzgerald, who issued this policy, if the OWCP made an overpayment of benefits to a deceased worker then the OWCP can and will:
1. Notify the representatives of the estate (such as you) that a debt is owed to the OWCP and must be paid in full within 30 days of notice.  If no payment is made then the OWCP will
2. Proceed to collect any overpayment from the widow/widower's survivor benefits, and
3. Proceed to collect any overpayment from the disability retirement benefits and death benefits that were owed or paid  to the survivor's of the deceased worker, and
4. Proceed to collect any overpayment due from any tax refunds due the estate from the IRS.

The OWCP policy also states that even if the OWCP itself was a fault for making the overpayment, that will not excuse the debt from being owed and recovered. The estate must show that the deceased worker was without fault in collecting the overpayment. This might be an impossible burden of proof  as obviously the worker is no longer alive to testify.

I was a federal employee but I can no longer do my job because of injury and illness.  I am filing for OPM medical disability retirement benefits.  Someone told me that I could not use any medical treatment that I received after my retirement date to show that I am disabled.   Is that true?

It used to be true, but no longer.
OPM medical disability retirement is an annuity paid to federal employees who can no longer perform their assigned jobs due to physical and/or mental impairments.  It is similar to social security disability.

As part of his case, the worker must show medical evidence that he is unable to perform his job.  However most claimants continue to work up until the day they can no longer do so and then they file for OPM.

OPM would routinely deny claims because the worker's medical evidence showing their inability to work was, logically, received after they stopped working.   The OPM required that the medical treatment showing an inability to work must have been received before the worker retired due to his disability.  This made no sense as the worker was still working when he was receiving such medical treatment; how could he claim an inability to work at the same time he was working?

Common sense has now prevailed.  In a recent federal court decision, the federal court ruled that the OPM could no longer take such a nonsensical position to deny disability claims.

The court ruled that the OPM must consider all medical evidence, including medical evidence of treatment after a claimant leaves his job, in evaluating and reviewing a medical disability retirement application.

So, no it is no longer true what you were told.  You can and should use all medical evidence, even after you left work, to show that you are medically disabled.
Go here to read more on this recent court case.

My husband had filed a federal workers' compensation claim with the OWCP.  His claim was for severe carpal tunnel syndrome (CTS). He had permanent injury to his hands due to the CTS. He died last month is a car accident.  I just received a letter from OWCP accepting his claim for CTS and apologizing because they forgot to send out a notice of acceptance letter.  Now OWCP is telling I am not entitled to scheduled award benefits on his accepted claim because of their error.  Is that true?

 Yes, even though the OWCP was clearly at fault for delay in the case, you lose.

A scheduled award in OWCP claim is a final award paid to the injured employee for the permanent effects of his accepted injury.  For example, a scheduled award would be payable to your husband for the permanent injuries to his hands due to the CTS. 

A scheduled award is tax-free, payable over and above regular salary and can be worth tens of thousands of dollars if not more, depending upon his injury and his wage rate.
There is no time limit on when a worker must file a scheduled award.  On an accepted claim, he can do so years or even decades after his injury and even after he has retired or left federal employment.

Scheduled awards that are in process with the OWCP at the time of the injured worker's death are payable to the survivors.

Your husband was very likely entitled to a significant amount of money from OWCP per a scheduled award for his CTS.

However, because of their own admitted mistake,  the OWCP did not send out their acceptance letter until after your husband died.  Since your husband, did not file a claim for his scheduled award (on his now accepted CTS) before he died, the OWCP does not have to pay him or you as his widow, any scheduled award benefits he may have been entitled to receive.

When he died, without filing for the scheduled award during his lifetime, he took that award money with him.

Click here to read the OWCP's decision upholding its own error denying benefits to survivors.

I am a veteran.  I have an accepted service connected disability for right knee injury.  Now because of my right knee imbalance, I have developed injury to my left knee.  Am I entitled to veterans benefits for my left knee?

Perhaps.

You are referring to a "secondary" disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2007)

To put in layman's terms, you must submit medical evidence that shows that your second injury is due to, or a result of, your already existing service connected injury. Your treating MD should present medical reports first detailing and explaining the existence of your already proven service connected injury. And then you must present medical evidence showing that but for, or "more probably than not" your second injury was incurred as a result of your first service connected injury.

Once proven, in general, the effective date awarded to a service-connected disability can be no earlier than the date that VA received the claim for that particular disability. Click here for a similar case.

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.

Need One to One Advice?

Disability claims and appeals can be very confusing and complex.  So it is very common for disability claimants ask that I be available to them to answer general questions and give general guidance on "how to" handle various issues in OWCP or OPM medical disability retirement or Social Security Disability or Veterans Disability claims. 
For example, this could include as needed by you, consultations by live video, or by email, or requests on how to find certain forms or how to submit items to a federal agency, etc. 
This One to One consultation service is offered to you for your convenience as a means to be available to you to provide you general guidance on a non-representative basis. 
Click here to learn more about One to One Expert Advice!
 
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