WORKING WITH AN ATTORNEY
WORKING WITH AN ATTORNEY
In general, when you have questions or problems, contact your attorney first – going around your attorney to speak with OWCP, or other people connected to your claim can cause unforeseen problems. Obviously, speaking with your doctor is always your right and not a conversation your attorney needs to be a part of. You should receive copies of all documentation received or written by your attorney. You should also receive updates on all oral communications your attorney has with anyone connected to your claim – either via the phone or in written format.
Attorneys in these systems work on hourly-rate retainer agreements. Specifically, in the OWCP system, contingency / percentage retainer fees are forbidden. The ECAB has ruled that only fees based on an hourly rate agreement will be approved in accordance with 5 U.S.C. §8127, and OWCP has stated that it will conform its fee approval standards to that of the ECAB. Consequently if an attorney offers you a contingency or percentage retainer agreement, that attorney is not complying with the law regarding representative fees and fee approvals.
Under an hourly fee retainer agreement, you will need to pay the attorney for all time spent on your claim. This includes time spent reviewing your file, speaking with you and other people related to your claim, placing written notes into your file, drafting documents or narratives, performing research, assisting doctors with their reports, interviewing witnesses to your injury event or the wrongdoing of your employing agency among other things.
You will also be required to pay “expenses” which may include payments for a specialist medical report, travel expenses if your representative or doctors need to travel to attend a hearing, copy charges, mailing costs, or other costs that may arise in the course of representation.
Generally you will need to place a sum of money with your attorney as a guarantee against future work. The amount of the retainer varies from attorney to attorney depending on his or her hourly rate coupled with their assessment of your case. The attorney will place that money into a client trust account as required by his or her State Supreme Court, or Bar Association, depending on the rules or laws of the state where your attorney is licensed.
I do not know how non-attorney representatives handle retainer fees, or who, from a regulatory perspective, oversees their handling of client funds.
When the OWCP issues a fee approval in your case, the attorney can then take the money from the client trust account and get paid. Attorneys may apply for multiple fee approvals, often on a monthly basis, as you case progresses. The attorney can take funds from the client trust account to pay for expenses as they come due.
In general, attorneys do not engage in substantial phone consultations with people who have not entered into a retainer agreement and paid the agreed upon retainer fee. Moreover, this office does not give advice or take action without having reviewed the OWCP file. Consequently, after being retained the first thing this office will do is ask you, and OWCP, for all the documentation relating to your claim – and then we will read it.
Ask yourself; do you really want advice that might affect hundreds of thousands of dollars in medical, wage loss or retraining benefits from an attorney who has not read your entire file? Look at it this way, if you are a 35 year old Postal employee, and suffer a disabling back injury such that you will never work again, and you are going to live 75, your lifetime wage loss compensation may amount to $1,200,000.00, or more. (40 years X $30,000.00 per year = $1,200,000.00)
If you don’t believe your case is might be worth a million dollars in lifetime benefits, you better believe your employing agency does!
Case in point, I entered a case that had over 8,000 pages of documents (I weighed the file to come up with that number). Originally, the client brought only a few pages that really told me very little about the case – but the client thought those documents were the heart of the case. Despite the client thinking they knew the important parts of the case, they failed to read the letter from OWCP accepting the claim – 8 years before walking into my office! That letter was worth over $220,000.00, and the client had failed to read the letter much less understand its importance.
I hope this example helps you understand the importance of having a knowledgeable and experienced attorney read your entire file – not just the parts you believe are important.
Finally, during your initial phone conversation with an attorney, despite your assertions that you are telling the attorney everything he or she needs to know to go to a hearing in two days, or engage in a phone conference with your Claims Examiner over the termination of your benefits tomorrow – you are not. There is always much more in your file than you know.
The moral of the story is: retain your attorney at the earliest sign of a problem – sooner rather than later – don’t wait until the last minute.
QUICK GUIDE: (You may want to print this and keep it with you.)
1. Employers may select EMERGENCY medical care ONLY.
2. Employers cannot order regular treatment by their Doctor.
3. You have the right to be treated by Doctors of your choice.
4. Employers have no right to accompany you to, or call, your regular treating physician/s – NO EXCEPTIONS !
5. Employers may require Fitness For Duty Examinations.
6. Report injuries to supervision ASAP & request Form CA-1. If not provided, download at OWCP.COM & Call OWCP ASAP.
7. Complete CA-1 & give to supervision – obtain the receipt. If a receipt is not provided, call OWCP ASAP.
8. Obtain witness statements AS SOON AS POSSIBLE.
9. Request Form CA-17, if not provided, call OWCP ASAP.
10. Supervision completes Side A – ensure its accuracy.
11. GO TO A DOCTOR, OR EMERGENCY ROOM – ASAP.
12. Physician Assistants are NOT Doctors in this system.
13. Chiropractors only treat spinal subluxations seen by X-ray.
14. Your Doctor must document ALL testing & results on the Form CA-17 – including CLINICAL testing.
15. CLINICAL TESTING, conducted & observed by a Doctor, IS objective medical evidence for OWCP purposes.
16. Doctors must state, on a more likely than not (51/49) basis, the injury event caused the diagnosed condition.
CONNECTION BETWEEN INJURY EVENT & DIAGNOSIS !
17. Your Doctor must complete Side B of the CA-17 WITH SPECIFIC DETAILS IN ORDER TO:
18. PROVE YOUR DISABLING DIAGNOSIS IS CAUSALLY CONNECTED TO THE INJURY EVENT and
19. PROVIDE RESTRICTIONS FOR A WRITTEN LIMITED DUTY JOB OFFERBEFORE YOU RETURN TO WORK.
20. If Side B of the CA-17 demonstrates you are not able to perform the activities on Side A – you have the right to a
WRITTEN LIMITED DUTY JOB OFFER AND A SUITABILITY DETERMINATION FROM OWCP BEFORE YOU RETURN TO WORK!
21. FOR EMOTIONAL DISTRESS CLAIMS, CALL.
The Federal Employees’ Compensation Act
5 USC §8101 ET. Seq.