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GAMES APPELLATE REVIEWERS PLAY: HOW TO WIN YOUR RECONSIDERATION!

GAMES APPELLATE REVIEWERS PLAY: HOW TO WIN YOUR RECONSIDERATION!

Hint: All the games examiners play that we discussed in the last post, also make their decisions erroneous! In this space, we will discuss the requirements of a successful reconsideration motion, and why an attorney is your best bet to obtain it.

The most important point to note after the previous post, is that all of the tricks claims examiners play that we mentioned, constitute what is called under the FECA reversible error. That is, using technical tricks, like denying a claim because the examiner can’t tell whether the injury is an occupational disease or traumatic injury, is grounds for invalidation of the decision on motion for reconsideration or other appeal. This is also an actual result we won for a postal worker, given a horrible run around due to the development of bilateral post-traumatic arthritis in her knees.

Another trick that has often been overturned by the Employee Compensation Appeals Board (ECAB), is to deny a case by only mentioning the negative evidence against a claimant, even if 70% of the record is in the claimant’s favor. For example, an agency may attempt to discredit a claim by stating there are no witnesses to an injury; if the claims examiner denies a case solely on this basis, however, they would be mistaken, because witnesses are not required to substantiate an injury or illness. What is required is solid and detailed medical and factual evidence. ECAB has so stated in dozens of decisions on this topic.

Another misconception especially rampant is the ‘one year rule.’ This means that denial of a reconsideration is ostensibly automatic if filed more than one year after the date of the previous decision in the case. This is true under most circumstances save one: if OWCP’s previous decision shows ‘clear evidence of error.’ There are two ingredients of proof: Showing how OWCP ‘screwed up’ and providing detailed explanatory medical evidence from a new physician.

An ECAB case where this occurred developed when a postal worker who had previously accepted a full time job, had to cut back to working part-time due to recurrent symptoms. His doctor sent a letter saying he could only work part-time, but OWCP failed to consider or mention this letter and then terminated the workers compensation benefits. The worker then requested reconsideration but after the one year time limit. He argued all the way to ECAB. ECAB invalidated the OWCP decision, on the basis that the new evidence was sufficiently well detailed to overcome the one year rule.

The bottom line is that due to all of the rules changes and staff turnover at OWCP in recent years, a lot of ‘fishy’ decisions are being issued, that need to be overturned. Doing this is generally something that requires legal expertise, which we at The Law Offices of Eric L. Pines, PLLC, have in considerable abundance concerning FECA appeals. If something about your most recent decision looks or smells fishy to you, call us!