WAS YOUR REFEREE IMPARTIAL?

 

                                                                                    By Gordon Reiselt

                                                                                mailto:gr@kbh-lawfirm.com

 

      Under the Federal Employee Compensation Act (FECA), an injured worker has the absolute right to select any treating doctor[1] and OWCP similarly may select its own doctor[2] for any reasonable purpose. If a conflict in the medical opinions is created between the claimant’s treating doctor and a doctor appointed by the government, according to law,[3] the Secretary of Labor shall appoint a third doctor, commonly referred to as a referee. The appointment of the referee doctor is made so that the conflicting medical opinions may be resolved.[4] However, not every difference of opinion necessitates the appointment of a referee. OWCP decides if a “true” conflict exists and then sets into motion the process of appointment. In order for a referee to be appointed, the conflicting medical reports must be of virtually equal weight. Probably due in large part to expense, OWCP in general disfavors findings of conflicts and believes that most medical evidence can be resolved without resorting to a referee.[5] Once a referee is appointed and an examination is conducted, whatever the referee’s decision is, it is entitled to “special weight” if it is based upon an accurate medical history and factual background and if the referee was selected according to law. Only then is the opinion of the referee sufficient to break the tie.[6]

 

      Because a referee’s decision is supposed to be fair and impartial, OWCP is strictly controlled by extensive regulations on how a selection of a referee is accomplished[7]. The Employee Compensation Appeals Board[8](Board) places great importance on the appearance as well as the fact of impartially and therefore only if the selection procedures which were designed to achieve this result are scrupulously followed may the selected doctor’s opinion carry “special weight”.[9] For instance, OWCP cannot select doctors who may give the appearance of having bias. Therefore, doctors who are employed by or associated with federal agencies (i.e. doctors who perform regular fitness for duty examinations for the USPS), must be excluded. To assure that selected doctors are aware of these regulatory restrictions, OWCP has adopted language to be inserted into introductory letters when a claimant is referred for an impartial examination: ”Because this examination is being requested in accordance with a statutory provision for resolving a conflict in medical opinion, it is important that the physician have no previous connection with the claimant, and no regular association with the claimant's employing agency.  If you, or a member of your professional firm, have previously attended this patient, or regularly performed fitness- for-duty examinations for the patient's employer ... please call [the Office] so that other arrangements can be made for the impartial examination." [10] 

In one case the Board found that if a physician did not perform more than 3 to 4 fitness for duty examinations per year, that doctor would be able to serve as a referee. Presumably, anymore than four examinations in a given year would disqualify a doctor. Doctors who have had any previous connection with the claimant (i.e. doctors who have previously treated or examined a claimant) are also disqualified. The same is true for doctors who have consulted with OWCP under contract.

 

      In order to assure impartially, qualified doctors are selected randomly in sequential order by a computer program[11] using a claimant’s zip code.[12] This zip code is entered into the software and a cluster of qualified doctors is produced. OWCP starts with the first five in the cluster. That doctor is called and asked if he will perform the examination. If the first doctor accepts the appointment then that doctor is chosen. If the doctor declines, then the second doctor is called. Only doctors who are board certified in their respective field of expertise are eligible to act as referees.[13] If OWCP initially selects a doctor who exhibits one of the above biases[14], a claimant may be allowed to participate in the selection of another referee by filing a written after the initial appointment.[15] There are two instances when the Office will allow a claimant to participate. There must be a specific request to participate and a valid reason must be provided or when there is a valid objection to the doctor selected by the Office.[16] If OWCP agrees with the claimant’s objection regarding the selected referee, a list of three other referees will be prepared and the claimant may choose any one of the three.[17]

The Office is not permitted to ask leading questions[18] or have oral communication[19] involving any disputed issues with the impartial doctor.

A good example of what constitutes a leading question can be found in the case of Vernon E. Gaskins, 39 ECAB 746 (1988). The Office’s medical advisor responded to a report of an impartial doctor and in so doing, suggested an different conclusion and in the process, insulted the Board.[20]

 

      Of course, there are a variety of ways that OWCP can effectively circumvent the random selection process of a referee. Review of recent case files reveal that OWCP only has documented the files with the referee chosen to perform the examination, not all of the referees that the computer program has selected. With only this evidence, there is no way to actually determine if more than one doctor was considered for selection. There is also a technique in the computer program, which allows OWCP to “bypass” any doctor that is selected. OWCP does not inform the claimant or the bypassed doctor that this has occurred. This “bypass” technique is clearly a means to disrupt the random selection process. When a bypass occurs, OWCP is instructed to enter a “bypass” code, which would indicate the reason for the “bypass”. However, one recent case file reviewed involving the selection of a referee, did definitely involve a “bypass” without a “bypass” code being used.

 

      If a claimant has a duly appointed representative, the law states that both the claimant and the representative must receive notice of the referee appointment. If the claimant receives notice and the representative does not, the report of the referee cannot be used if it is adverse to the claimant. [21]

Of course, if notice is not given to the representative and the referee’s report is favorable, there is no need to raise an objection to the report.

 

      The selection of a truly impartial referee is a complex process. It is difficult for a claimant to adequately determine if a referee was correctly chosen. Hopefully the information here will assist a claimant to recognize if the selection procedure was properly followed. A referee’s report is entitled to “special weight” and acts as a tiebreaker, only if OWCP acts in accordance with the law.



[1] Some restrictions apply to chiropractors. The FECA provides that chiropractors are included in

   the definition of physician “. . only to the extent that their  reimbursable services are limited to treatment

  consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist,

  and subject to regulation by [the Office of Workers’ Compensation Programs].”

[2] This doctor is commonly referred to as the “Second Opinion Doctor”.

[3] See 5 USC 8123(a)

[4] Treating doctors are paid by OWCP according to a fee schedule; however second opinion and referee doctors are not subject to the same schedule and oftentimes receive more incomes than a treating doctor for basically the same type examination..

[5] Federal (FECA) Procedural Manual, Ch. 2-0810.11a. states: “Careful analysis of the medical evidence should allow for resolution of most issues without resorting to a referee or "impartial" specialist. However, where the analysis of the evidence demonstrates conflicting opinions or conclusions, which are, supported almost equally, the services of a referee specialist must be utilized.

[6] Jean Culliton 47 ECAB 728 (1996); Howard Y. Miyashiro, 43 ECAB 1101 (1992); Louis G. Psyras, 39 ECAB 264 (1987); Sarah E. Stanbrough, 34 ECAB 786 (1983).

[7] Federal (FECA) Procedural Manual, Ch. 3-0500

[8] This is a quasi-judicial body that has the authority to hear and, subject to law, make final determinations on appeals taken from employees of the Federal Government arising out of the FECA.

[9] Reports from doctors who are not chosen according to a strict rotational basis cannot be used. Leonard Lothlen, 37 ECAB 314 (1986).

[10] Federal (FECA) Bulletin 85-52, Issued August 30, 1985; Russell G. Broadhead, Docket No. 93-2132, Issued January 30, 1995.

[11] Specialists must be listed in the Marquis Directory of Medical Specialists. The computer program used is the Physicians’ Directory System,(PDS) a set of stand-alone software programs. One hearing Representative has ruled that use of the PDS satisfies that a strict rotation has been used in the selection of a referee.

[12] If a zip code other than the claimant’s is used, the case file must contain justifying documentation.

[13] There are rare exceptions to this rule and if a non-board certified doctor is selected, the case file must be documented with valid reasons.

[14] The listed objections are illustrative, not exhaustive. Other examples of objections that can be made by claimants are documented bias or unprofessional conduct by a selected referee; a female claimant who requests a female doctor when a gynecological examination is required or when a claimant who resides in a remote area has a medically documented inability to travel.

[15] This procedural opportunity is not an unqualified right under the FECA. See Roger Wilcox, 45 ECAB 265, Issued June 17, 1993.

[16] Terrance R. Stath, 45 EACB 412 (1994); Leonard Waggoner, II, 37 ECAB 676 (1986)

[17]  See Federal (FECA) Procedural Manuel, Ch.3-500.4b.(4)

[18] Carlton L. Owens,  36 ECAB 608 (1985)

[19] Federal (FECA) Procedural Manual, Ch 2-810, 13a(2); Aubrey Belnavis, 37 ECAB 206 (1985)

[20]  The Office’s medical advisor told the impartial doctor in a letter: "Although I agree with your letter, and I believe I understand what you are saying, the whole necessity for the reevaluation was due to an ECAB Remand. ECAB (Employees' Compensation Appeals Board) is mainly composed of a group of lawyers with no particular expertise in medicine or understanding of scientific matters. They review decisions on the claimant's request in an attempt to prevent justice miscarrying. Gaskins, 39 ECAB at 748

[21] Donna M. Fox, Docket No. 93-1160, Issued July 29, 1993