A group of former federal workers have called into question the impartiality of the Office of Workers’ Compensation (OWC) when choosing referee doctors. Seven former government employees, led by Blake Brown, filed a lawsuit under the Freedom of Information Act (FOIA) in an attempt to uncover bias in the actions of the OWC. The suit seeks the past 10 years of statistics for Colorado orthopedic doctors who were selected as referees in contested workers’ compensation claims.
Under the Federal Employees’ Compensation Act (FECA), injured federal workers must provide proof of their injury via a doctor’s opinion. Many workers opt for treatment by their own physician or a doctor of their choosing. The worker must also submit to examination by a doctor designated by the OWC. When these two physicians cannot agree on the injury or cause, the OWC must resolve the dispute with impartiality. This is meant to be accomplished with a “randomly” chosen referee physician.
The OWC uses software that searches for doctors within 25 miles of the zip code of the injured employee. If the doctors on the generated list are unable or unwilling to provide the needed service, the software then expands the search radius to include physicians in an ever increasing geographical area until a willing and available physician is located. In theory, this method should tap a revolving panel of doctors with no bias in selection. Brown and his fellow plaintiffs believe that this system has been compromised.
Brown, et al. suspect that the OWC has actually been referring the same small pool of referee doctors over and over on purpose. They allege that by using this “select pool” of physicians, these doctors become financially reliant upon the assignments. This then influences their decisions in favor of the OWC. The federal workers cite a specific orthopedic doctor that has been used in a referee capacity for the OWC repeatedly. They argue that this physician has weighed in on numerous workers’ compensation cases where the zip codes of the injured employees have been far outside of the initial 25-mile radius, despite the presence of other orthopedic doctors within a closer range.
The federal workers requested OWC records for the referee selection process under FOIA, to investigate their suspicions. The focus was predominantly on orthopedice doctors and the previous 10-year period. They also specifically asked for screenshots of the scheduling software menus. They received redacted records in response, obliterating physician names and addresses, and no screenshots.
The missing information led to the filing of a suit to received partially un-redacted records. Brown, et al. don’t challenge redacting of employee information. They simply challenge removal of the physician info. The district court denied their requests, and they appealed.
Tenth Circuit Court of Appeals Ruling
The 10th Circuit Court has now weighed in on the case. They disagreed with the lower court and reversed that court’s decision on August 29, 2016. Because some of the redacted data at issue are the physicians’ business addresses, the expectation of personal privacy is impacted. They remanded the case for additional proceedings.
With this turn of events, it’s likely that the plaintiffs in this case may finally receive the information they need to truly investigate their claims, and determine if there is a showing of bias in the OWC’s selection of orthopedic doctors. If this is the case, the situation will likely become far more complicated.
If your rights have been violated in a Colorado Workers’ Compensation claim, don’t hesitate to contact Kaplan Morrell for skilled legal guidance. We have been championing the rights of injured Colorado workers for nearly two decades. Call (866) 356-9898 to schedule a free consultation.