Ed:
As I think about this further i can't help but come up with another question..
Timing.. How can timing affect my claim?
Like having the correct diagnoses added to the SOAF, and possibly going out again on a "new" claim?

Ed Daniel:

Thanks for the response..
Along with the "new" claim i will of course use the same dr I have been for years to write reports outlining my exsisting injuries and how they are affected by doing all you mentioned.

These injuries have been documented for years, although never added to the SOAF, will that matter?

Ruuth:I was under the impression that you were "going to be sent" for an referee examination. So, too much time has passed and you are about to return to work as a result of a job offer. Lets address what is before you: return to work made avaiable due to your accepted work restrictions.

It has been determined by the weight of the medical evidence (2nd op & referee examinations) of record that you are not capable of returning the position at the time of the injury, but capable of returning to some type of work. Thus, the offerring of the job offer.

As I have said many time to my clients, "you are damaged goods". You have an accepted work related injury that has not resolved. If it has resolved then you should be returning to your position at the time of injury or when disability began. Your disability has lessened to the point that you can return to work, but with restrictions. If while in the performance of your duties (new return to work position) you twist, turn, push, pull, left and so on you aggravate your preexisting accepted work related injury you file a new claim.

While you are back at the limited duty position you can continue to purse the upgrading of the accepted condition by the submission of new evidence that establishes that your condition has worsened.

the SCEOP's were over a year ago,I had called about 7 months ago, the IME was shortly after that, Then came the job offer.

The IME stated my radicuopathies were resolved, (they're not), but in his report he states that they were once there if they are now resolved right?

So now if I write her a letter stating 'this is a letter pertaining to our conversation..." and that now please add"...isnt that almost confrontational? I think thats exactly the way she will be..but at this point what does it matter as i am being ordered back to work..

My doctor always sends in the reports on a monthly basis. All of these injuries have been well documented throughout my entire claim.
thank you for your patience.

Ruuth:Ok, now follow-up on the referral for a 2nd op examination. In about three weeks contact the CE again and find out the status of the referral. If I was you, I would send a letter to the CE repeating what was discussed over the phone. For example you start the letter with "This is to confirm our telephone conversation this morning where you stated ....." . This way you have it in writing as to what was discussed. If you got it wrong, then it would be up to the CE to set things correct.

Ed Daniel:
I had contacted my CE. When I asked her how to go about updating my accepted conditions, she told me that she would send me for an IME. I had already seen 2 SCEOP's. I was sent for the IME eventually, but when she told me that I backed off.

Ruuth: YUou need to be "pro-active" in mamaging your claim. You need to write to the CE requesting OWCP to upgrade the accepted condition to include the cervical and lumbar "bulging" disc. Be sure to attach the medical documentation that establishs that you have "bulging" disc and the your attending physician's opinion why he believes that the "bulging" disc found on the objective testing were caused by the work incident that over 18 years ago. The same goes for the CTS.

Ed Daniel:
In reading your response to another post, I have a question. As I have stated in previous posts i will be accepting the job offer from USPS within the next 2 weeks. Upon returning If/when this position aggravates my pre-existing OWCP-accepted work -related claim I will file for a NEW claim.
 My question is:
My claim now is accepted for strains and sprains , cervical and lumbar and both knees.
I have had testing (EMG, NCV), and MRI's showing cervical and lumbar bulging and herniated discs. The MRI is probably 10 yrs old, the EMG and NCV were done last year. My doctor has diagnosed cervical and lumbar radicuopathies and CPT in both hands.

These injuries have been documented since my accident back in 1991.However OWCP has in the SOAF just strains and sprains.

Any advice here? In filing a new claim the doctor will surely address these injuries again. They should be included in the SOAF. In filing for a SA these injuries are affecting my arms, legs and hands.

Thank you in advance..

Ed Daniel, thanks again for your responses.

Thank you: These are questions you need to ask your attending physician. If you don't have any objective findings you are going to be out of luck.

Ed Daniel,thank you for your response. What type of specialist? My doctor is board certified orthopaedic surgeon and fellow, american academy of neurological & orthopaedic surgeons. Also, I don't have any objective findings, can not have EMG test. What are other tests may reveal objective findings that won't involve needles or pricking skin? Which diagnosis should have objective findings? Is not the aggravation to pre existng ppi injury sufficient without objective findings if doctor can show rationale of relationship? Sorry, if my questions are repetitive. Thank you again.

Thank you: First things first. If you are being scheduled for a 2nd op examination write to the CE and request a copy of the Statement of Accepted Facts (SOAF) and questions for determination that is being sent to the 2nd opinion examiner. If you have a copy of the questions for determination you can be aware as to what the CE is trying to determine.

Second, burden, burden who has the burden of proof? if you want your accepted condition to be up graded YOU have the burden of proof to establish that a condition as being caused or aggravated by the original injury. Your physician will have to provide his/her medical opinion, with his/her reasoning, why he/she believes that your accepted condition should be upgraded. The medical opinion MUST be supported with objective medical evidence that supports the diagnosis. If that means that your physician has to refer you to specialist for a consultation then have it done. Your attending physician has the inherent authority to refer you for testing and consultations.

Third, once you submit a CA-7 to your employer you need to be "pro-active" and obtain a copy of the completed CA-7. Once you have you a copy of the completed CA-7, submit it to OWCP yourself. If the employer fails to complete the CA-7 in a timely manner, you should submit a copy of the CA-7 you submitted to the employer to OWCP and explain when you submitted the CA-7 to the employer and that your employer has failed to properly process the claim.

Edited by author 06-28-2009 01:11 PM
Ed Daniel, I apreciate your expertise and hope you can give me guidance about somewhat complicated claim. First of all, how does my doctor request my claim be upgrated ie, should it be in NMS form? Details: I slipped on black ice falling on right arm and was initially diagnosed as contusion to right arm. I have pre existing injury that is accepted 20% PPI w/SA to same arm of epicondylitis with shoulder hand syndrome and right upper extremity. I sought treatment with another orthopaedic specialist, who has placed me on arm rest, PT and no work for the past six months for fall that was diagnosed as contusion to right elbow/epicondilitis. OWCP accepted the claim as contusion to right elbow. I have no objective findings for the fall, both x-ray and mri were negative. I have experienced excruciating pain since the fall. Though, I understand OWCP considers pain to be subjective but my pain still exists and due to removal of axillary nodes from same arm I am not a candidate for EMG testing because I am at high risk for lymphedema. My attending physician now feels that the fall has aggravated the pre existing condition and he agrees with previous doctor's diagnosis and also feels that I have an atypical complex regional pain syndrome in upper extremity as well as nerve root irritation to the right upper extremity. The problem is that I have not been paid and recently found out that my claim is under development and I am being scheduled for SECOP. At this point, how does my doctor show the fall aggravated pre existing condition? Also, the injury comp specialist at USPS sat on my CA7 for 2 mos before processing it. Should I retain a lawyer at this point or wait to see if my compensation will be denied? Also, can I request and expect approval of both claims being combined and treated by current treatng physician? Thanks again for your response.

Thank you Mr. Daniel.

You are and continue to be a valued asset in relation to this forum. Keep up the good work as I for one am indebted to your valued service.


Thank you kindly.

GORT: I would suggest that you obtain a Permanent Impairment rating. Then submit the medical report along with a CA-7 claiming a schedule award. Remember, you have the burden of proof to show that you have a permanent impairment as a result of the accepted condition. So, if you simply file a CA-7 without a medical report showing that you have an impairment, OWCP can deny your claim because you failed to establish that you have an impairment related to your accepted condition(s). As of 5/1/09 OWCP uses the 6th Edition of the AMA Guide to Permanent Impairment to determine an IW's entitlement to a schedule award.

LDM1: As you know I am not an attorney and cannot give a proper answer. I would suggest that you contact an attorney that deals with the Freedom of Information Act and the 1974 Privacy Act. Ed Daniel