Division of Federal Employees' Compensation (DFEC)
Procedure Manual
FECA PM Part 2 (PDF format)
Under Construction - DFEC is updating its resources to make them easier to access. Click below for links to specific chapters within Part 2 of the Procedure Manual, or click the link above to view all of Part 2. Note - All chapters are not yet available as individual links.
LIST of CHAPTERS
2-0100 |
Introduction |
2-0200 |
General Provisions of the Federal Employees Compensation Act |
2-0300 |
Communications |
2-0400 |
File Maintenance and Management |
2-0402 |
Security and Prevention of Fraud and Abuse |
2-0700 |
Death Claims |
2-0801 |
Time |
2-0802 |
Civil Employee |
2-0803 |
Fact of Injury |
2-0804 |
Performance of Duty |
2-0805 |
Causal Relationship |
2-0807 |
Continuation of Pay and Initial Payments |
2-0808 |
Schedule Awards and Permanent Disability Claims |
2-0809 |
Statements of Accepted Facts |
2-0810 |
Developing and Evaluating Medical Evidence |
2-0814 |
Reemployment: Determining Wage-Earning Capacity |
2-0901 |
Computing Compensation |
2-1000 |
Dual Benefits |
2-1100 |
Feca Third Party Subrogation Guidelines |
2-1200 |
Fees for Representatives' Services |
2-1300 |
Lump Sum Payments |
2-1400 |
Disallowances |
2-1500 |
Recurrences |
2-1600 |
Review Process |
2-1601 |
Hearings and Reviews of the Written Record |
2-1602 |
Reconsiderations |
2-1603 |
Appeals |
2-1700 |
Special Act Cases |
Chapter 2-0401, Automated System Support for Case Actions |
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Back to Chapter 2-0401 Table of Contents
1. Purpose and Scope. This chapter describes the Federal Employees' Case Management System insofar as it records and supports Claims Examiners' (CEs') actions and outlines their responsibilities for maintaining an accurate data base and managing a case load using the automated system. The Disability Tracking System is addressed in FECA PM 2-0601.
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2. Responsibilities. The CE has primary responsibility for keeping the automated Case Management File (CMF) accurate, and may use the various capabilities of the system to monitor and assist case processing.
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3. System Components. The case management system has multiple subsystems with which the CEs interact. Some of the subsystems are:
a. The Compensation Management System. The CE's responsibilities include providing accurate and detailed payment set-ups for entry into the system.
b. The Correspondence Management System. The CE uses this system to generate letters to claimants, employing agencies, and other interested parties.
c. The Case Management System, including the imaged case record. This program includes a query function, which allows CEs to obtain information about specific cases, and it includes other sub-systems which allow CEs to enter new data.
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4. System Capabilities.
a. When an injury report or claim for occupational disease is received in a district office, a record is created in the Case Management System and an acknowledgement to the agency and the claimant is generated automatically. The system controls number assignments and edits entries for duplication of date and other identifiable errors.
b. CEs are required to record their adjudicatory actions in the Case Management System, which should contain current status of each case and the effective date of that status. Other data recorded in the Case Management System include third party status and rehabilitation indicators. Definitions of adjudication and pay status codes appear in paragraphs 6 and 7 below.
c. Reminders may be set, allowing CEs to diary cases for further review and action.
d. Responsible Claims Examiner (RCE) is shown in the Case Management System. This shows who is currently managing the case.
e. Incoming and pending mail may be viewed in the imaged case file. Priority correspondence is tracked in the system and assigned automatically for some correspondence types or upon review as assigned by the CE.
f. Reports can be produced by managers and CEs using the automated reporting system. These reports are used to query pending cases in need of action and for case management purposes.
g. Addresses for frequent correspondents other than the claimant or beneficiary are maintained in the Case Management System. Entry of names and addresses of authorized attorneys and other legal representatives is required; entry of other names and addresses is optional. By entry of these addresses into the system, the CE is able to pull them into correspondence as needed.
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5. Status Changes. The Case Management System contains a pair of two-character code fields for recording the status of the case file. Adjudication status codes are used to record acceptances and denials of benefits, and case or pay status codes are used to track the level of payments authorized on a case. CEs and claims supervisors have sole responsibility for ensuring that these codes are kept accurate and current. Since office performance is largely measured by the dates these codes are assigned and by the proportion of cases in various statuses to total cases in the office, the integrity of code use is extremely important.
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6. Definitions of Adjudication Status Codes. With the exception of noncontroverted no-time-lost cases discussed in paragraph 8, the adjudication status code field may not be filled until the initial acceptance or denial of the case by the responsible CE. Assignment of any of the codes beginning with "D" should reflect a formal decision with appeal rights.
Eighteen (18) two-character adjudication status codes are available in the system. Brief definitions are given below.
Acceptances
AM: Condition accepted as compensable. If open, entitlement to medical benefits only.
AL: Condition accepted and some period of disability supported by medical evidence. Leave elected or used awaiting decision.
AC: Condition accepted as compensable; some period of entitlement to continue pay accepted.
AD: Condition accepted as compensable; some period of entitlement to compensation is or was accepted; not being placed on periodic roll.
AP: Condition accepted as compensable; is or was entitled to compensation on the periodic roll.
AF: Death accepted as work-related; some beneficiary is or was entitled to benefits.
AT: Condition accepted as work-related but claimant entitled only to medical benefits.
AO: Case previously approved; no benefits payable. May be used to identify a case with a third party credit being absorbed in conjunction with MC case status.
Denials-Any denial code prevents entry of payment data in the automated compensation payment system.
DO: Disallowed pending.
D1: Denied as not timely filed, without entitlement to medical benefits (use AT for pre-1974 cases where monetary benefits are denied and medical benefits are payable). Do not use in COP time denials.
D2: Denied; claimant not a civil employee.
D3: Denied; fact of injury not established.
D4: Denied; not in performance of duty.
D5: Denied; causal relationship not established or disability due to injury has ceased.
D7: Remanded by ECAB.
D8: Remanded by H&R.
D9: Request for reconsideration pending.
SU: Consideration for benefits suspended for failure to report for an Office-directed medical exam. This is also used when an initial claim is withdrawn. Use with code CL.
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7. Definitions of Pay Status Codes. Every case file acquires a pay status code (or case status code) when it is created and retains such a status throughout its existence. Before the case is adjudicated, the pay status code reflects whether it has been reviewed, and afterwards it reflects whether and what benefits are being paid or are payable. There are nineteen (19) two-character pay status codes in the system. Only certain codes are compatible with payment through the Compensation Management System and allow for bill payment. Brief definitions are indicated below.
UN: Case created, not reviewed. This status is automatically generated at the time of case create, and should not be changed unless the case has been reviewed by a CE.
UD: Under development. Used whenever further development is needed before pay status or closure status can be assigned. Assigned without an adjudication code, after initial review if there is not enough evidence for acceptance or denial. Assigned with DO if a case in D_ status is remanded for development by the Employees' Compensation Appeals Board (ECAB) or Branch of Hearings and Review (H&R), or is under reconsideration.
MC: Entitled for the time being to medical treatment only. Only used in combination with "A_" adjudication code.
DR: Entitled to payment on daily roll; permits payment through the compensation management system. Used for finite period of wage loss or repurchase of leave; not used for schedule award paid in lump sum or for initial or final supplemental payment where the case is or will be on the periodic roll.
PR: Entitled to payment on periodic roll. Used with AP.
PN: Entitled to payment on periodic roll; formally determined to have no wage earning-capacity or re-employment potential for indefinite future. Used with AP.
PW: Entitled to payment on periodic roll at a reduced rate, reflecting a partial wage-earning capacity or actual earnings. Used with AP.
PS: Entitled to payment for schedule award, whether periodic or when a single schedule award payment is made on the daily roll because this single payment represents the initial and final payment of the entire award. This occurs when the date of maximum medical improvement is in the past and the percentage is small enough so the entire award is paid in the past and in full representing one single payment. Assigned with AP to effect payment through the compensation management system.
LS: Entitled to payment of a lump sum schedule award. Assigned only with code AP. Code should not be changed until the schedule award entitlement period has ended.
DE: Monthly payments are being made to at least one beneficiary of a deceased Federal employee. Used with AF. Also required to pay burial, transportation and administrative costs.
ON: Overpayment exists; final decision made on issues of fault and waiver. Claimant not on periodic roll.
OP: Overpayment exists; final decision made on issues of fault and waiver. Claimant on periodic roll.
C1: Closed, accepted, no further payments anticipated; no time lost from work. Assigned only with AM.
C2: Closed, accepted, no further payments anticipated, time lost covered by leave, leave not repurchased. Used with AL adjudication code.
C3: Closed, benefits denied. Assigned with "D_" adjudication code.
C4: Closed, entitlement to continued pay accepted, pay was continued for time lost from work; no further payments anticipated. Assigned with AC.
C5: Closed, previously accepted for benefits, all benefits paid.
CL: Administrative closure.
RT: Retired or awaiting retirement.
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8. Assignment of Status Codes. Rules for assigning status codes to cases as they pass through the system will be given at appropriate points in the case development and case management chapters of the Procedure Manual. So that this information is available in summary form, and its relationship to information tracked by reports is clear, a brief account of proper code assignment in developing and adjudicating cases is given here.
a. Primary Adjudication.
(1) Creation. Each case received is placed in status UN at time of case create. No adjudication code is used with UN, and bills cannot be processed while case is in this status. Cases move from UN to UD when reviewed by a CE who makes that disposition.
(2) Development/Review. If the CE is unable to accept a condition without more information, appropriate development letters are prepared and the case should be placed in status UD.
For a primary case under development, no adjudication status code is assigned. Status UD permits payment of bills, but without an adjudication code only bills properly authorized by Form CA-16 or OWCP referral should be paid.
(3) Acceptance. If the CE is able to accept a condition, either on first review or after development, the condition, as well as an appropriate adjudication status and pay status, are entered in the case management system. The adjudication code will depend on whether the CE accepts any period of disability as supported by medical evidence. All approval (A_) codes must reflect true adjudication, which includes acceptance of the five basic requirements and approval of a condition, and the status code date should be the date on which the case was approved.
While the case remains open and no period of compensation is approved, the appropriate pay status code is MC. The case should remain open as long as bills are anticipated and/or there is no reported return to work. Thus, the CE would make the following disposition of an accepted case for which no claim for wage-loss beyond COP has been filed:
AM/MC: Condition accepted as injury-related. No period of disability accepted as injury-related. Further bills expected and probably payable. (This would be the status for an accepted no-time-lost case.)
AL/MC: Condition accepted as injury-related. Leave was elected on Form CA-1, or it is being used to cover disability due to occupational disease. Some period of disability is supported by medical evidence. Case is being held open for medical bill payment.
AC/MC: Condition accepted as injury-related. Continued pay was elected and is supported for some period. Further bills expected and payable.
If COP was elected but must be denied, and the case as a whole is accepted, the appropriate status is AM/MC. This can change to AD/_ if a claim for leave repurchase or wage loss is accepted. If leave is elected, but no period of disability is supported by medical evidence, the appropriate codes are AM/MC.
(4) Closure (in minor cases). With the exception of noncontroverted no-time-lost cases, all cases must be adjudicated, with acceptance of a condition or formal denial, as well as appropriate status codes entered into the case management system.
The appropriate closure codes for adjudicated cases involving no-time-lost, leave, or short term disability situations are:
AM/C1: Condition accepted. Up to $1500 in medical payments can be made without adjudication by the CE. No time lost.
AL/C2: Condition accepted. Some disability supported and covered by leave. No further claim or bills expected.
Non-controverted no-time-lost cases will be closed without adjudication by the CE as soon as they are created, and will not subsequently require the CE's attention unless any of the following apply:
(a) The total amount of medical bills exceeds $1500;
(b) Evidence is received to show that the injured employee was disabled for work after the date of injury;
(c) Evidence is received to show that a schedule award may be payable for permanent impairment.
Prior to releasing cases to the claims units, the District Office will identify the non-controverted, no-time-lost traumatic injury cases.
COP cases should not be closed until a date of return to work is in file, on Form CA-1, Form CA-3, or other documentation in the file. The appropriate closure code, if no further disability is claimed, is AC/C4.
If COP is elected but disputed in an accepted case, the code should be AM/MC until closure. The issuance of Form CA-1050 should not lead the CE to assign a "D" code. If the case as a whole is denied, Form CA-1050 is not used and a formal notice of decision with appeal rights is issued, with explicit reference to any COP claimed or paid.
b. Compensation Payment.
(1) Daily Roll. The codes for daily roll payments are AD/DR (accepted for daily roll compensation; compensation payable). If continuing CA-7 Forms are expected, the case should remain in that status and should not be placed in a closed or medical pay status, since these will not permit payment through the compensation management system.
Lump sum schedule awards must be in AP/LS status. Therefore, even if a one-time payment of a schedule award is being made, the CE should not useAD/DR. The appropriate status after the payment is made would be AP/C5 or, if medical care continues, AM/MC.
When the claimant returns to work (or ceases to claim compensation) and medical bills are still coming in, the codes should be AM/MC. If the claimant is discharged from treatment, the case is closed AM/C5.
Cases in AL/_ status in which a claim for leave repurchase is filed should remain AL until a leave-buy-back payment is set up, at which time the case status changes to AD/DR.
(2) Periodic Roll. A case in which extended disability is anticipated is paid on the periodic roll and should be in status AP/PR. These codes also apply if the periodic roll payments have ended, and a last payment, not equal to a full four weeks, is paid to fulfill claimant's entitlement.
The case should remain AP/PR while being developed for re-employment potential by the CE, or to determine whether disability continues to be due to the employment. When a determination on future entitlement is reached, the status will change from AP/PR as follows:
AP/PW: Claimant has returned to work with some loss of actual earnings, or claimant's benefits were reduced to reflect a partial earning capacity. Claimant in this status should not be receiving compensation for temporary total disability or a schedule award.
AP/PN: After full development, it has been determined that the claimant has no earning capacity, and a memorandum to that effect has been certified by the Supervisory Claims Examiner (SCE) and placed in the file. These cases must still be reviewed annually to determine whether the status is justified.
(3) Schedule Awards. If a schedule award is being paid, the case should have status AP/PS whether it is being paid on the periodic or the daily roll. If a lump sum schedule award is being paid, the case should have status AP/LS. After expiration of lump sum payment of a schedule award, the case is changed to AP/MC by the system. Further determination by the CE is required to decide whether the status should be changed to AP/C5 or, if medical care continues, AM/MC.
A case should remain in AP/PR status while the CE is determining its ultimate disposition. Cases in PR status for one year or more should be reviewed to determine whether there is a basis for rehabilitation, re-employment, or wage earning capacity determination.
(4) Closure Without Denial. When a claimant who has been receiving compensation on the daily roll returns to work and is discharged from medical care, the case is closed AD/C5. A periodic roll case, when entitlement to medical and compensation ends, becomes AP/C5. However, if expenses for medical treatment are expected to continue after wage loss compensation ends (the claimant is working or elected an OPM annuity), the case may be held in AM/MC status and eventually closed AM/C5.
A0/C5 should not be used routinely on closed cases.
c. Denials.
(1) Use of Denial Codes. A denial adjudication code should reflect a formal decision with full appeal rights, and the adjudication status date should be the date of release of the formal decision by the authorized person. Denied cases are always closed, except on remand from H&R or the ECAB. The codes are shown in paragraph 6 above.
(2) Denial of Monetary Benefits with Continuing Medical Care. If monetary benefits are denied by formal decision, but entitlement to medical benefits continues, the case may be assigned code AT/MC. Examples of AT/MC are:
(a) Claimant has x-ray evidence of asbestos-related disease, but no disability for work and is entitled to yearly medical examinations.
(b) Claimant returned to work without loss of earnings, but will continue to require periodic payment of medical expenses, as for prosthesis repair.
The use of these codes will enable district offices to distinguish cases which are inactive but must be kept open and in inventory (AT/MC) from those which are temporarily active but may eventually be closed and removed from inventory via retirement (AM/MC).
(3) Closures. The appropriate closure code when a case is denied for one of the five basic requirements is C3. C5 may be used with D5 when entitlement ceases after initial acceptance.
d. Reconsideration, Hearings, Appeal. Code D7 or D8 is used when a remanded case is not in a payment status and a de novo decision has not been issued. The pay status is UD. D9 is used while an application for reconsideration on a denied case is being processed. Cases in pay status (LWEC, SA) which are remanded or under reconsideration will retain the adjudication and pay status appropriate to their benefit status (e.g. AP/PW).
e. Reopening Closed Cases.
(1) Closed cases should not be reopened merely to pay medicalbills.
(2) Denied cases on which a medical bill is payable must be given a payable status temporarily in some instances. Code AM/MC may be used. Efforts should be made to ensure that cases are promptly restored to closed status after the bill has been paid.
(3) Where Form CA-2a or other claim for recurrence is received, case should be reopened using the last adjudication (A_) code and UD.
(4) Remands and reconsideration on denied cases should be assigned the adjudication code D7, D8, or D9, as appropriate, and pay status UD.
(5) Noncontroverted no-time-lost cases which later require adjudication by the CE which cannot be accepted immediately must be reopened. This may be done manually or by the system, and the case status will be UN.
f. Death. Cases on which death benefits are to be paid must be placed in status AF/DE, which allows payment of burial, administrative costs and survivor benefits. AF/UD may be used for a case in which employment-related death is accepted but documents such as birth certificates, marriage certificates, or election forms have not been received. When there is no further entitled beneficiary because of remarriage, completion of college, etc., the case should be closed AF/C5.
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9. Inquiries. In addition to its essential use in enabling CEs to take timely and proper action on files, and to enable supervisors to monitor case actions, the case management system provides basic information to contact representatives and others for use in responding to inquiries. It is to the advantage of the CE to maintain correct coding information in the system so that a representative can answer telephone inquiries without having to contact the CE for information.
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10. ICD-9 Codes. When conditions are accepted as work-related, the CE should enter the corresponding ICD-9 codes into the case management system. The codes are found in the ICD-9 manuals or electronic ICD-9 reference material. As additional conditions are accepted, the ICD-9 codes should be added to the system.
a. Severity of Condition. The ICD-9 code should accurately reflect the severity of the condition accepted. For instance, if the OWCP has accepted a herniated lumbar disc (code 722.10), the code for lumbar strain (847.2) should not be used instead. Coding should be as specific as possible, coded to the 4th or 5th digit.
b. Surgery. When a surgical procedure has been accepted as work-related, the CE should ensure that the accepted condition has been upgraded, when necessary, to ensure that bills will be paid appropriately.
c. Psychiatric Conditions. When a claimant who has a physical work-related condition requires treatment for a related psychiatric condition (e.g., depressive reaction), the CE must add the psychiatric diagnosis to the system. Failure to do so may result in denial of bills for psychiatric care.
d. Specific Identifiers. One-character identifiers unique to the case management system are used to add more specificity to ICD-9 codes. These identifiers are:
R Right
L Left
B Both
A Aggravation
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Chapter 2-0500, Conferences |
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1. Purpose and Scope. The purpose of this chapter is to provide specific instructions for holding conferences with claimants, employing agency personnel, or other parties to resolve complex issues and facilitate the claimant's early return to work (RTW).
The issues commonly addressed through conferencing include employing agency controversions and challenges, disputed facts or occurrences, and overpayments. In such situations, the conference is employed as a means of fact-finding, following which a decision is made.
A Disability Management (DM) conference is different from these kinds of conferences in that its goal is usually to facilitate the claimant's return to the work force, and, as such, is a form of principled consensus-building. If the objective of the RTW conference is reached, all parties will experience a positive result.
Although conferences will sometimes be held in person with several parties in attendance, most conferences will be held by telephone and will include the claimant and the employing agency. It is important to note that there are no set rules on who should be part of the conference or how many people should participate. Those who can help resolve the issue(s) at hand should be involved.
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2. Responsibilities. Senior Claims Examiners (SrCE) and journey level Claims Examiners (CE) are responsible for conferencing cases. Non-journey level CEs may also participate in some types of conferences.
The Supervisory Claims Examiner (SCE) may refer a case to a SrCE/GS-12 CE if he or she determines that such a case would benefit from a conference; however, in most instances, the SrCE/GS-12 CE is responsible for identifying cases for conferencing.
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3. Types of Conferences. All conferences are to be non-adversarial in nature. There are two specific types of conferences - formal conferences and informal conferences. This chapter focuses primarily on formal conferences. Informal conferences as part of the Disability Management process are discussed in greater detail in PM Chapter 2-0600-12.
a. Formal Conferences. A formal conference may be conducted in the following types of situations.
(1) When entitlement (due process) is involved, e.g., during the adjudication of a claim or reaching a final determination in an overpayment case.
(2) When an issue is in dispute or where detailed technical evidence is required to decide an issue in a case.
In most other instances, an informal conference may be sufficient.
b. Informal Conferences. Ongoing and steady communication between all parties involved in the DM process is vital to a successful resolution, and informal conferences are a particularly effective means of addressing issues that arise that may impede the return-to-work process. Conferences are also helpful when miscommunication between one or more parties has occurred.
Participants involved in an informal conference will vary greatly depending on the issue. During nurse intervention, the Field Nurse (FN) will often be involved as well as the employing agency and the claimant. During vocational rehabilitation, often times the Rehabilitation Specialist (RS) and the Rehabilitation Counselor (RC) will participate along with the claimant and CE.
(1) An informal conference during DM should have the goal of addressing the concerns of all involved parties and arriving at a solution that addresses participant concerns whenever feasible within the confines and parameters of the FECA program.
(2) Some reasons for conferencing during the DM process include: disputed medical evidence being used for a return-to-work effort; questions regarding the duties in a job offer; personnel issues pertaining to a job offer; and expectations during the various phases of vocational rehabilitation, including placement.
(3) A detailed Form CA-110 (record of call) or a memorandum to the file which documents the conference discussion should be placed in the case file.
(4) A formal follow-up or comment period is not required after an informal conference. In most instances, the issue at hand will likely be resolved by taking some other type of action, such as referring the case for a second opinion, requesting a new job offer, or sending a narrative letter which will reference the conference discussion.
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4. Cases Suitable for Formal Conferences. Formal conferences should be considered in the following situations:
a. The employing agency has controverted Continuation of Pay (COP) or has challenged the claim. This may be due to Fact of Injury, Performance of Duty (e.g., recreational injuries, assault cases), or for some other reason.
b. An overpayment has been identified and an issue remains unresolved.
(1) The financial data in the file is not adequate for a decision on waiver or repayment, or
(2) The issue of fault is in question, or
(3) No possible offset for recovery exists and compromise is possible.
c. Vehicle or housing purchase and/or modification. If the nature and complexity of the issue in these circumstances is relatively minor, an informal conference may be acceptable.
d. The evidence of record indicates that the claimant is not able to express himself/herself well in writing.
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5. Preparation. Before addressing the issues of the conference, the SrCE/GS-12 CE should advise the participant of the nature, seriousness, and possible results of the conference. The SrCE/GS-12 CE should also ensure that it is convenient for the participant to proceed with the conference and that the participant has any necessary records at hand. If either of these conditions is not met, the SrCE/GS-12 CE and the participant should schedule the conference at a mutually agreeable time in the near future.
Especially for conferences involving more than one party, a pre-conference call may be needed to schedule the call, provide the phone number, and explain the use of the conference line. If a pre-conference call is held, a CA-110 should be prepared for the file to document the call.
Upon calling the conference party, the SrCE/GS-12 CE should:
a. Give the participant a clear picture of the purpose of the conference call.
b. Explain the issues to be discussed.
c. Describe any evidence the participant needs to have for the conference call.
A pre-conference call is not a requirement. If the conference party is willing to proceed at the time of the initial call, the SrCE/GS-12 CE can proceed with the conference.
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6. Elements of a Conference. All conferences, regardless of whether there is a pre-conference call, should include the following:
a. Identification of caller.
b. Statement of the purpose of the call.
c. Statement that notes will be taken and, for this reason, periodic pauses will occur.
d. If the claimant is the only participant, advise him or her that information gained during the call will be shared with the employing agency.
e. An acknowledgement from the participant(s) that he or she understands the nature of the issues and the purpose of the conference.
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7. Senior CE/GS-12 CE Actions. During the discussion, the SrCE/GS-12 CE should:
a. Address the issues in ascending order of difficulty and listen carefully to what is being said.
b. Take notes complete enough to capture necessary information.
c. Probe responses which are too general or not credible, or which conflict with other statements given or other evidence in the file.
d. Confirm the accuracy of the statements recorded by reading them back to the participant(s) for confirmation.
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8. Memorandum of Conference. After a formal conference is completed, the SrCE/GS-12 CE should complete a neutral Memorandum of Conference (that is, one which does not contain findings). It should describe what each party said in the conference in clear, non-technical language. The Memorandum of Conference should:
a. Include the name of the claimant, file number, and date of the conference.
b. Identify the SrCE/GS-12 CE who conducted the conference and the participants in the conference.
c. Provide a background.
d. Identify and describe the issues which were discussed.
e. Describe each party's position before the conference.
f. Describe the explanations provided in the conference to properly document the record. The SrCE/GS-12 CE should explain, in clear language, the criteria being used to make the various decisions and the implications of those decisions.
For instance, if the SrCE/GS-12 CE provides explanation to a claimant in an overpayment case concerning the criteria for deciding "fault" and "waiver" and the implication of these decisions, this should be fully documented. The meaning of "fault" should be explained, as well as the criteria upon which it is determined. For example, the SrCE/GS-12 CE should state that a preliminary finding of fault was made and explain how it was reached; state the implications of this finding; and invite the claimant to provide any information that could affect the finding.
g. Describe what each party said in the conference that is relevant to the issue.
h. Describe the method used to confirm the accuracy of the information collected during the conference and recorded in the Memorandum of Conference.
i. Describe any agreements reached in the conference. For example, an agreement with a claimant in an overpayment case to repay with deductions from schedule award payments.
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9. Obtaining Comments. In most cases, the SrCE/GS-12 CE should offer each participant an opportunity to comment on the Memorandum of Conference.
a. Comments Required. A comment period is required for most formal conferences, with the exception of the circumstances describe below, especially if a conference with the claimant results in new allegations that need to be shared with the employing agency for confirmation or rebuttal.
(1) Each participant should be sent a copy of the Memorandum of Conference and be requested to provide any comments within 15 days. The requests may be sent to all parties simultaneously rather than serially. However, if comments from one or more parties result in a material change to the Memorandum of Conference, the SrCE/GS-12 CE will need to request comments from the other party(ies) again.
(2) At the end of the 15-day period, the SrCE/GS-12 CE should make findings on the issue(s) for resolution. These findings need not be the subject of a separate memorandum, but they will need to be documented in any resulting formal decision. Where a controversion is not upheld, rationale for OWCP's action should be provided in accordance with 20 C.F.R. Section 10.119.
b. Comments Not Required. When it is clear that the decision will benefit the claimant and that the basis of any objection from the employing agency will be addressed in the ensuing decision or other correspondence, a comment period is not required. For instance, a controverted case which will be resolved in the claimant's favor as a result of a conference, and the employing agency's controversion will be addressed via correspondence which will advise the agency of the basis for continuing pay.
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1. Purpose and Scope. This chapter discusses the management of disability claims. It provides an overview of various intervention techniques, including nurse and rehabilitation interventions, which are addressed in more detail in PM Chapter 2-0811 and PM Chapter 2-0813. This chapter also discusses medical management as it relates to the disability management process, though medical management is discussed in detail in PM Chapter 2-0810.
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2. Introduction. The Office of Workers' Compensation Programs (OWCP) is responsible for seeing that benefits are promptly paid and helping claimants return to duty as soon as possible in order to minimize the period of disability. The OWCP is also obligated to see that benefits do not continue after the effects of the work-related condition have ceased.
Management of disability claims begins as soon as a new claim is received indicating that the claimant has lost time from work as a result of the injury or is disabled from his or her date of injury position. The Claims Examiner (CE) assists the claimant in returning to work as soon as possible and continues to manage the case until a resolution is reached. Disability management, however, is a team approach and consists of more than just CE intervention. The best outcomes stem from an active team approach where the OWCP, the Employing Agency (EA), the claimant, and the medical providers use all available tools to ensure medical recovery and a sustainable return to work.
The CE uses the Disability Management (DM) Tracking system in iFECS to record actions taken during disability management. A disability management record should be created as soon as work-related lost time is verified in an accepted case. In some instances a record will be automatically created, and in other instances a record must be manually created. A record may also be created for use when managing cases in which the claimant has not lost time from work but is only working limited duty. PM Chapter 2-0601 discusses the DM Tracking system in detail.
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3. Intervention Actions and Case Management. Each disability case presents a different set of circumstances that must be addressed. Effective disability management requires the CE to correctly analyze the evidence in a case and determine a course of action which will be effective in helping the claimant recover and return to work. The process of reviewing the evidence, identifying obstacles and challenges to recovery and return to work, and taking timely, appropriate action to resolve these hurdles should be repeated as necessary until the claimant returns to work. The CE should then continue to monitor the return-to-work effort until a decision can be made regarding the claimant's wage-earning capacity.
Disability management consists of multiple case management components and various types of intervention actions which should take place simultaneously in order to produce the best possible outcome for the claimant. These actions are outlined here briefly and discussed in greater detail later in this chapter.
a. Case Management. Routine case management actions during the period of disability management are critical to a successful outcome. Types of case management actions necessary during disability management include, but are not limited to:
(1) Case Adjudication. Prompt and accurate adjudication of the initial injury claim is an important first step towards a successful disability management outcome. Proactive steps by the CE at the adjudication stage result in more timely intervention actions, such as assignment of a Field Nurse.
(2) Payment of Compensation Claims. Prompt payment of claims for compensation sets the foundation for a positive return-to-work outcome, since the claimant will not suffer undue financial hardship during the period of disability.
(3) Customer Service.
Returning phone calls promptly and providing information so that outstanding issues can be addressed allows the case to move forward.
Responding to written inquiries in a timely and responsive manner so that pending issues can be addressed allows the return-to-work effort to continue without delay.
b. Intervention Actions. The CE is responsible for taking a series of intervention actions to assist the claimant in recovery and return to work. Intervention actions should be timely and appropriate based on the evidence in the case. Types of intervention actions include, but are not limited to:
(1) Medical intervention includes the following:
Authorizing medical treatment. Authorizing treatment expeditiously allows medical recovery to progress.
Questions to the attending physician. The CE may write case-specific questions to the attending physician to obtain information about the claimant's condition, the anticipated period of disability, work capacity, and the physician's treatment plan.
Second opinion referrals. The CE may request a second opinion examination at any time to clarify the claimant's condition, the extent of disability, work capacity, or other issues.
District Medical Advisor (DMA) referrals. The CE may refer the case to the DMA if surgery or treatment is requested and input prior to authorization is needed. Also, if the CE needs advice on unfamiliar or technical medical issues, the CE may seek clarification from the DMA.
Referee medical examinations. A referral for a referee examination should be undertaken when a conflict of medical opinion between the attending physician and an OWCP-appointed physician, such as a second opinion physician or the District Medical Advisor, has been identified and the medical opinions are of equal weight.
(2) Nurse intervention includes the following:
COP Nurse (CN) Assignment. Cases are assigned to a CN for action if the claimant sustained a traumatic injury and has not returned to work. After gathering information from the claimant, EA and physician, the CN provides a report to the CE so that appropriate action can be taken.
Field Nurse (FN) Assignment. If the claimant has not returned to full duty and the case has been accepted, a FN can be assigned. The FN works as a liaison between the claimant, EA and physician to address medical and return-to-work issues.
(3) Vocational Rehabilitation intervention includes the following:
Re-employment. When work limitations have been obtained, the CE may refer the case for assignment of a Vocational Rehabilitation Counselor (RC) to assist the claimant with returning to work with either the EA or a new employer.
Medical Rehabilitation. If permanent work restrictions are not yet on file, the case may still be referred for Medical Rehabilitation for work hardening programs and functional capacity evaluations aimed at producing work tolerance limitations. A referral may also be appropriate for speech therapy, orthotics, or prosthetics which would make the injured worker more employable; or psychiatric counseling, drug addiction counseling, or pain management clinics which would likely improve the claimant's condition with a view towards return to work.
(4) Employing Agency intervention centers on maintaining open lines of communication with the EA and providing the EA with the information needed so that a job offer can be made as soon as possible. Since the EA and OWCP have the same goal of the claimant returning to work as quickly as possible, it is important to maintain ongoing communication with the EA throughout all stages of disability management. This will occur both telephonically and via written correspondence, which should be documented in the claimant's file.
(5) Claimant intervention centers on keeping the claimant actively involved in the disability management process and focused on returning to work as the ultimate goal. When the CE becomes aware of concerns raised by the claimant in the management of a claim, the CE should explain the purpose of disability management and fully address any concerns raised by the claimant. Open lines of communication with the claimant are equally as important as the communication with any other party involved in the disability management process.
(6) Conferencing. The CE may arrange for a telephone conference with the claimant, EA, FN or RC to address and resolve return-to-work issues. Conferencing can be an effective tool to move the return-to-work effort forward. These should be fully documented in the file.
The case management and intervention actions mentioned in this paragraph are outlined in detail in the remaining paragraphs of this chapter. Though listed separately, they do overlap, as these actions take place concurrently, not linearly. Possible outcomes and resolutions for cases are outlined in paragraph 14 of this chapter. It is important to remember that the best possible outcome for the claimant can frequently be obtained by timely and appropriate proactive intervention and case management.
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4. Case Adjudication. Timely receipt of new injury claims from the EA with subsequent prompt adjudication by the CE is crucial to effective disability management. While neither of these may at first appear to be actual components of disability management, they are actually important building blocks for a successful outcome. In any claim where the claimant has not returned to work, a sense of urgency is needed to gather the necessary information to make a decision so that the focus can quickly change to maximizing medical recovery and assisting the claimant with return to work.
The quicker the EA transmits the new injury claim and supporting evidence to the OWCP, the sooner the OWCP can take action on the claim. If the case can be accepted upon initial review, the CE can move straight into disability management if the claimant is not working or has not returned to the date of injury position. This is true whether the claim is for a traumatic injury or an occupational disease. If the claimant's return to work status is unclear at the time of adjudication, the CE should make appropriate contacts to verify this information, which should then be documented in the file.
If the case cannot be accepted on initial review, tailored development outlining the deficiencies in the case should be undertaken immediately. While 30 days should be provided for the submission of evidence, the case can and should be accepted as soon as sufficient evidence is received. Before a case is denied, the full 30-day period for submission of evidence is required; however, the OWCP should make every effort to issue acceptance decisions on these claims as soon as possible so that medical treatment and disability management can commence.
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5. Payment of Compensation Claims. Like new injury claims, prompt processing of wage-loss claims is critical to a successful disability management outcome. Every effort should be made to pay wage-loss claims as soon as possible so that the claimant does not suffer undue financial hardship during the period of medical recovery. If a wage-loss claim is received, and the information submitted with the claim in conjunction with the evidence on file is insufficient to make payment, the CE should be proactive in obtaining the necessary information.
If information is needed from the EA, the CE should usually first attempt to gather it via phone, rather than written correspondence, since sending requests through the mail and awaiting a mailed response can create significant delays that may affect the claimant financially. If a written request must be sent, the CE should determine whether some kind of payment can be made in the interim, e.g. a payment using the base pay rate while awaiting verification of premium pay. If a payment is made based on a temporary pay rate, the claimant should be notified and follow-up action should be taken to resolve the outstanding issue.
If the medical evidence on file is insufficient to support payment, a written request should be sent; however, other alternatives can be considered simultaneously. Other alternatives include communication with the claimant and/or physician via phone to explain the type of evidence required. If a FN is active with the case, he or she could assist in eliciting the necessary information.
When compensation payments are initiated, the CE should review the medical evidence regarding the anticipated period of disability to determine whether compensation should be paid on the daily roll or the periodic roll. Payment of compensation is addressed in detail in PM Chapter 2-0901.
a. Daily Roll. When the initial anticipated period of disability is unclear, or disability is expected to continue for fewer than 60-90 days, compensation should usually be paid on the daily roll. In cases where compensation is paid on the daily roll, the CE should monitor the medical evidence when subsequent compensation claims are received to determine whether the medical evidence continues to support disability. If the attending physician extends disability without clear supporting medical rationale and objective examination findings, appropriate medical intervention should be initiated.
b. Periodic Roll. When the medical evidence indicates that disability is expected to continue for more than 60-90 days, compensation should usually be paid on the periodic roll.
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6. Customer Service and Communication. Effective and efficient communication throughout the life of a case is very important, but during the disability management phase it is crucial. In the course of managing a disability claim, the CE is responsible for communicating case management goals to the claimant, EA, attending physician, and others involved in a case so that each is aware of his or her responsibilities. The CE should also work with them to address and resolve issues hindering return to work. Intervention strategies with the Nurses, Rehabilitation Specialist and Rehabilitation Counselor, EA, and claimant are outlined in detail later in this chapter.
Routine customer service is equally as important as targeted intervention.
a. Phone Calls. Returning calls to all parties promptly is necessary so that outstanding issues can be addressed. The CE should attempt to return calls as quickly as possible in these cases because good communication is integral to effective early disability management. All calls should be documented in the case file.
b. Response Mail. Responding to written inquiries in a timely and efficient manner allows pending issues to be addressed so that the return-to-work effort can continue. Sometimes, especially if the claimant or EA seem uncertain of the status of the case or a recent action, a phone call in response to a written inquiry may be more helpful than a written response. A phone call allows the parties involved to discuss any areas of concern. Depending on the issue, a conference may also be beneficial. (Conferences are discussed later in this chapter.)
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7. Medical Intervention. The goal of medical intervention in disability cases is to address and resolve medical issues to assist the claimant with recovery and return to work. The CE is responsible for authorizing appropriate treatment for the accepted conditions, clarifying medical issues, obtaining information about work capacity, and taking other intervention actions as needed to address medical issues impeding recovery and return to work. Developing and evaluating medical evidence is discussed in detail in PM Chapter 2-0810.
a. Initial Contact with the Attending Physician. When the initial period of compensation entitlement is established, the CE should review the medical evidence to determine the expected period of disability. Initial intervention action should be taken consistent with the information provided by the attending physician (AP). A letter to the AP could be one of the CE's first steps in the disability management of a case. Not only will this letter to the AP be used to gather information, it will also set the tone for working with this medical provider moving forward.
If the relationship between the mechanism of injury and resulting accepted condition(s) is very clear and the AP has been treating the claimant since the date of injury, it is not always necessary to provide a Statement of Accepted Facts (SOAF) to the AP with the initial inquiry. However, if either of these criteria is not met in a particular case, or the case is complex factually or medically, the CE may provide a SOAF for the physician to use as the framework for responding to questions posed.
The initial letter to the AP should outline the accepted conditions in the case and seek responses to relevant issues, such as:
- The status of the claimant's recovery from the injury.
- An update on the claimant's post-operative condition, if applicable.
- The specifics of the treatment plan.
- Projected date of return to work with and without restrictions.
- Prognosis for full recovery.
The CE should be careful not to ask questions that are not germane to the case. For instance, if the claimant just had a spinal fusion one week ago, it would be inappropriate to ask whether the claimant's condition has now resolved. On the other hand, if the claimant only suffered a minor sprain eight weeks ago, asking whether the condition has completely resolved would be appropriate.
b. Clarifying medical issues. Not only at the onset of disability, but also throughout the course of a disability case, it will be necessary for the CE to request clarification of medical issues such as the anticipated length of disability, new diagnoses, the treatment plan, recommendations for work restrictions or other medical issues. In addition, the claimant may encounter delays in recovery or obstacles to obtaining a release for work.
(1) Common examples of issues that would require clarification through medical intervention include:
- The physician estimates a length of disability longer than usual for the injury or condition, without medical justification.
- Disability extends beyond the date the physician originally projected, and no explanation is provided.
- The medical evidence no longer supports continued total disability, but the claimant has not been released to any type of light duty or full employment.
- Temporary restrictions have continued beyond the usual duration for the accepted condition.
- The restrictions provided are of a greater severity than would normally be expected for the accepted condition.
- The claimant develops a non-work related condition which may affect the time needed to recover from the work-related condition.
(2) When a delay or obstacle is encountered, or a medical issue needs to be clarified, the CE should initiate medical intervention. Depending on the circumstances in the case, the intervention may include the following:
- Questions to the AP. The CE could write to the AP and ask specific questions to obtain the information needed to resolve medical issues. The CE may pose questions about the treatment plan, the reasons for the length of disability, whether a return to regular duty will be likely, and recommendations for work restrictions. Just like the initial contact with the AP, the CE should tailor the questions to the specific circumstances of the case and not ask questions that are not relevant to the case.
- Review by the District Medical Advisor (DMA). When the CE needs assistance with interpretation of medical reports, information about general medical issues related to a case, or review of the appropriateness of medical authorizations, the DMA can be asked to review the case and provide an opinion to assist the CE with the medical management of a case.
- Second opinion referrals. Medical evaluations from a second opinion physician may be requested at any time. If the attempt to obtain information from the AP is unsuccessful, the CE should refer the case for a second opinion. Second opinions are also useful throughout the course of a case for obtaining additional information about the claimant's condition and work capacity.
- Referee examinations. When a conflict of medical opinion arises between the AP and an OWCP-appointed physician such as a second opinion referral specialist or the DMA, and the opinions are of equal weight, the CE must arrange for a referee medical examination to resolve the conflict of opinion. The authority for referee medical examinations is also found at 5 U.S.C. 8123(a).
c. Recurring Medical Intervention. When an action is taken, the CE should review the outcome of the intervention to determine whether the issue has been resolved and whether medical recovery and return-to-work efforts are progressing appropriately. If the medical intervention does not clarify or resolve the issue, the CE should undertake further intervention.
Timely, specific, and ongoing intervention to address and resolve medical issues is essential to helping the claimant recover and return to work as quickly as possible. The CE may need to use all of the medical intervention techniques described above at various times during the disability management of one case.
In order to facilitate the best outcome, the CE should advise the FN or RS of the weight of medical evidence regarding work capacity, should the outcome of medical intervention actions change this determination. The claimant and EA should be kept abreast of the CE's ongoing actions in this regard.
d. Authorization for medical treatment. Beyond specifically targeted medical intervention, the CE should also review and respond promptly when requests for authorization of medical treatment are received to ensure treatment is not delayed. Authorizing medical treatment quickly allows medical recovery to progress. The CE may receive formal requests for authorization but may also learn of pending medical requests via updates from the FN or while reviewing new mail.
(1) When clarification is needed regarding an authorization request, the CE should request clarification from the AP, consult the DMA, or refer the case for a second opinion examination. Appropriate medical development should be undertaken in a timely manner so that the treatment authorization issue can be resolved and the case can move forward.
(2) Requests for surgery. If the AP requests authorization for surgery, the CE should ensure that medical rationale has been provided to establish that the proposed surgery is appropriate for the accepted condition(s). If appropriate, the case should be sent to the DMA for review prior to authorization. See PM Chapter 2-0810.
If the surgery is authorized, the CE should ensure that ICD-9 codes for the accepted conditions are updated if necessary. The CE should also request the surgery date and expected period of disability from the AP, as this information is necessary to medically manage the case.
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8. Nurse Intervention. The Nurse Intervention program was implemented to assist CEs with medical management of disability claims and to provide claimants with assistance in coordinating medical care. The goal of Nurse Intervention is medical recovery for the claimant and early return to work.
The Nurse Intervention program is comprised of a Staff Nurse, who is located in the district office, and COP Nurses and Field Nurses, who work on a contractual basis in the district office's servicing area. The CE, however, is responsible for the management and overall direction of the case. Nurse Intervention is discussed in more detail in PM Chapter 2-0811.
a. The Role of Nurses.
(1) Staff Nurse (SN). The SN plays an important role in the Nurse Intervention process. The SN's responsibilities include, but are not limited, to the following:
- Ensuring there is a sufficient number of CNs and FNs to service the district office's needs.
- Monitoring of the nurse's performance in correlation to both the contract specifications and the quality of services provided.
- Assigning CNs and FNs in particular cases.
- Reviewing nurse reports for completeness and timeliness prior to authorizing payment of bills.
- Communicating with the CEs regarding the cases assigned to FNs.
- Relaying important or time-sensitive information to the CEs so that action can be taken if needed, e.g. if expedited adjudication is needed.
(2) COP Nurse (CN). The CN is a registered nurse who is assigned early in the life of a traumatic injury case and works each case telephonically rather than in person. The information obtained is then used to make decisions about the best path for that particular case. The CN's responsibilities include, but are not limited to, the following:
- Contacting the claimant to obtain a history of injury, history of treatment, and current work status, as well as physician contact information.
- Confirming the work status with the EA and ascertaining whether accommodations are available if needed.
- Contacting the physician's office to obtain a verbal history of treatment and expected treatment plan. He or she can also provide the OWCP address for submission of reports and contact information for requesting medical authorizations should the claim be approved.
(3) Field Nurse (FN). The FN is a registered nurse who assists in the management of disability claims in a number of ways. Unlike the CN, the FN's contact is frequently in person with the claimant, EA, and medical providers. The FN's responsibilities include, but are not limited to, the following:
- Developing a rapport with the claimant and answering questions about what to expect from OWCP, while at the same time establishing the return-to-work goal clearly for the claimant from the outset.
- Making determinations about the initial extent of the injury, treatment necessary for recovery, and return-to-work expectations (using the CN's report, if available, as part of this process).
- Attending the claimant's medical appointments to facilitate communication about return to work and ease any authorization difficulties the claimant may be encountering.
- Obtaining functional capacities, restrictions and limitations from the physician as early as possible, and then providing these to the EA.
- Identifying possible barriers to the claimant's return to work and then developing a plan of action with the CE to resolve the identified barriers.
- Continual evaluation of the likelihood of return to work with the EA and physician, with the goal of following the plan through to successful full duty return to work and closure.
- Communicating regularly with the medical providers, claimant, EA, SN and CE to keep all parties informed of the status of the case to facilitate a timely, sustainable return to work.
- Making recommendations for vocational rehabilitation when necessary.
Usually a FN's contact with the claimant, EA and physician is in person. Sometimes though, contact may be only telephonic in nature. This may occur, for instance, if there is no available FN in the claimant's locale. This may also occur in non-complex cases where telephonic intervention is determined to be sufficient. Regardless of whether the communication is in person or telephonic, the nurses in these cases are referred to as FNs, since the goal of the intervention is the same.
b. COP Nurse Assignments. Although nurse intervention will not be extensive during the COP period, the medical knowledge and experience of a CN will permit identification of cases that require more extensive intervention due to the severity of the injuries, contemplated surgical intervention, or lost time from work.
Based on the data entered when a traumatic injury case is created (particularly date stopped work), a case will become automatically eligible for a CN assignment if the claimant does not return to work. This happens even if the case has not yet been formally accepted.
(1) Cases are electronically assigned, if eligible, to a particular CN. Upon receipt of the case, the CN should make a three-point contact in order to effectively "triage" the case, and then report these findings via a COP Nurse Report to the SN and CE.
(a) Claimant - The CN should make initial contact with the claimant. Often this contact is the claimant's first experience with OWCP; therefore, it should be positive. It sets the tone for moving forward toward a positive outcome for the claimant. The CN should obtain details concerning the injury and determine whether the claimant has a treating physician. If so, contact information should be obtained. The CN can also answer general questions about OWCP.
(b) Employing Agency - The CN should contact the agency to confirm the claimant's work status and determine whether work accommodations are going to be available during recovery. The CN can also discuss with the EA whether he or she feels that a FN assignment would be beneficial in the particular case.
(c) Attending Physician - The CN should contact the physician's office to obtain information concerning treatment and the date of the claimant's next appointment. The CN can provide general information about dealing with OWCP, such as the address for submission of reports and how to submit authorization requests and medical bills should the claim be approved. The CN can also advise whether accommodations can be made at the EA.
(2) Once the information has been gathered, the CN enters it on the COP Nurse Report, along with other relevant information pertaining to possible issues or foreseeable barriers. The CN should also make a specific recommendation pertaining to whether a FN assignment would be beneficial.
(3) Once the COP Nurse Closure report is received, the SN reviews it and submits the bill for payment. At that point, the COP Nurse Report will be viewable by the CE, who can use the information provided to determine whether a referral for FN intervention is needed. The closure type and date will also be visible to the EA in the Agency Query System (AQS) at that time.
If the CN closes the case and the claimant has not returned to work in a full-time capacity, the case should be reviewed for adjudication action. See the Case Adjudication paragraph above for an explanation on the importance of expediting adjudicatory actions in these types of cases.
c. Field Nurse Assignments. FN services are a valuable tool for assisting claimants in returning to work and assisting CEs in moving a case towards resolution. Early referral for FN intervention services is critical to ensuring successful disability management, and FN assignment should occur as soon as possible after the injury occurs if the claimant has not returned to work. Referral for FN services may also be made if the claimant has returned to work but is disabled from performing his or her date of injury position.
(1) The need for a FN referral can be established with any of the following criteria:
- The claimant is disabled as a result of the accepted condition and has not returned to work. This is true even if a projected return-to-work date is on file but has not yet occurred. In this case, the FN will work with all parties involved to obtain a release to work or facilitate the return-to-work effort on the projected date.
- Surgery is authorized. In these cases, it is important to assign a FN prior to the actual surgery date if at all possible (unless the claimant is working full duty prior to the surgery) so that the FN can attend the pre-operative appointment with the claimant and assist with arranging any post-operative care that may be needed.
- Work tolerance limitations are on file but outstanding medical issues hinder or preclude a return to work. The FN can assist with the outstanding medical issue (e.g., physical therapy, medication, treatment plan, etc.).
- Work tolerance limitations are on file, but they are considered temporary pending further medical recovery. The FN can work with the claimant, EA and physician to obtain a return to work with temporary accommodations, stable and well-defined work restrictions, or a release to full duty.
- The anticipated return-to-work date does not coincide with the severity of the original injury, or the return-to-work date is extended without clear medical reasons. The FN can work with the claimant and physician to clarify the reason for the severity or delay and perhaps assist with obtaining authorization for medical treatment that would remove the barrier.
- The claimant is only working limited duty but may be able to return to full duty.
(2) The Nurse Referral. A FN can be assigned in an accepted case as soon as there is an indication that the claimant is out of work due to the work injury or disabled from performing the full duties of the date of injury position, as well as any of the reasons outlined in the prior paragraph. This referral can be made even if the claimant is still in the COP period following the injury and even if the OWCP has not yet made a wage-loss payment. A FN may also be assigned upon request by the EA for other reasons if the CE concurs that a FN would be helpful in resolving the case and the claimant is not already working full duty. How to make a nurse referral is discussed in more detail in PM Chapter 2-0811.
(3) Upon receipt of the referral, the FN is expected to meet with the claimant, attend medical appointments, monitor the claimant's return to work, visit the work site, and communicate with the CE, SN, AP and EA. The FN obtains and relays information through a combination of phone calls, written communication, and face-to-face interaction. The FN can assist in the following ways:
- Coordinate medical care if various medical providers are involved, e.g. an attending physician, a specialist, physical therapists, etc.
- Relay authorization information for diagnostic tests, equipment, surgery, etc.
- Obtain treatment plans from the attending physician and determine whether more active treatment or more active participation by the claimant in the recovery process may be needed. Also, the CE may want the FN to address any prolonged treatments such as physical therapy without clear goals or direction.
- Provide guidance to the CE where the claimant has sustained a catastrophic injury or has undergone surgery.
- Assist the CE in resolving medical issues.
- Assist in arranging for a Functional Capacity Evaluation (FCE) and/or work hardening program.
- Clarify work status and obtain work tolerance limitations, and then relay this information to the EA.
- Assist in work site evaluation following a return to work and monitor the claimant post return to work to ensure it is sustained.
- Address any problems the claimant may have in adjusting to the work setting.
- Obtain the date of maximum medical improvement.
- Recommend a second opinion examination.
- Recommend vocational rehabilitation services.
After receiving the referral, the FN should make the initial contacts with the EA, claimant and AP. The FN should then contact the CE to discuss the strategy for moving forward with the case. At that time, the CE can direct the FN to take specific actions as needed.
(4) CE and FN Interaction. During the period of FN intervention, the CE
and the FN will confer, either by telephone or written communication, to determine the next action. Timely response to FN inquiries is crucial to successful case management. The CE determines the best approach to achieve progress in the case and directs the FN in obtaining necessary information or completing specific tasks needed to achieve those goals, as detailed in the prior section.
The FN may note such information as the physician's opinion concerning length of disability, work limitations, etc. The CE may use this information as the basis for questions to the physician but should not base adjudicatory actions on nurse reports.
The FN will report to the OWCP, either by telephone, in writing, or both. The FN's monthly report should outline accomplishments and action plans necessary to resolve barriers to sustainable return to work. Written reports are usually required every 30 days, but effective disability management hinges on more frequent communication in most cases.
(5) Length of Assignment. The length of a FN's involvement will depend on the specific circumstances in a case. An initial assignment period will be determined at the outset of the case, usually 120 days. This may be adjusted, however, depending upon the progress in that case. Return to work monitoring by the FN is automatic for 60 days after a light duty return to work, and for 30 days following a full duty return to work. These extensions are automatic, even if the extension takes the case beyond the initial 120-day assignment period.
If the CE determines that the FN could still be of assistance after that initial period, the CE should document the file extending the FN intervention for 30-60 additional days. A follow-up review should then be undertaken after that extension period has ended. As long as the CE documents the case file accordingly and the rationale for continued intervention is clear, the CE can extend the FN intervention period for up to 180 days. During this period, return-to-work 30/60 day extensions are automatic as well.
Rationale for extending the FN intervention period includes, but is not limited to, the following:
- Work tolerance limitations are expected shortly and the EA has indicated a willingness to accommodate the claimant.
- The claimant has undergone surgery during the initial intervention period, and the FN needs more time to work with the claimant and physician post-operatively to obtain a release to work.
- The claimant has returned to a temporary modified assignment, but the work restrictions are expected to lessen in the near future, and the FN could assist the EA with the formulation of a permanent position.
- A full-duty release is expected in the near future, and the FN would be able to assist with that transition back to full duty.
- The claimant has returned to a modified position, and the FN could monitor the claimant post return to work to ensure that it is sustained.
- A second opinion or referee examination was obtained during the initial intervention period which delayed the CE's determination of the work tolerance limitations that should be used for the return-to-work effort; therefore, the FN needs extra time to work with the EA on an appropriate job offer.
- The claimant has encountered medical setbacks or the recovery has been unusually delayed, and the FN's services would be beneficial to the claimant's medical recovery and/or return-to-work effort.
FN intervention past 180 days must be approved by a Supervisory Claims Examiner (SCE), upon recommendation of the CE, unless the extension is due to a 30/60 return-to-work monitoring period. Any extension beyond 180 days should also be discussed with the SN. Even with Supervisory approval, nurse intervention should usually be closed after 10 months of assignment, unless the case is catastrophic in nature.
The key for extending FN services in any circumstance is that the CE makes a purposeful decision for the extension with clear goals for the FN to accomplish during the next approved period. Extending the FN intervention period without clear direction and communication from the CE to the FN is not permissible. The process for extending FN services is discussed in more detail in PM Chapter 2-0811.
(6) Dual Tracking. Based on the circumstances in the case, OWCP may determine that the assignment of a Vocational Rehabilitation Counselor (RC) simultaneously with FN intervention could be useful.
(a) Although not always necessary, dual assignment should be considered in the following kinds of circumstances:
- The claimant has a condition that will likely lead to permanent work related restrictions, which would prohibit a return to the date of injury position, and the EA has indicated that it will not have any work available for an individual within the expected restrictions. In this instance, the file should reflect expectations for when the restrictions will likely be permanent and the kinds of restrictions that are expected.
- If the EA needs vocational information and assistance with formulating a job offer, the RC and FN may work concurrently with the EA. In these instances, the RC may be able to provide vocational testing, transferable skills analysis, ergonomic assessments, and even arrange for short-term training that would enable the EA to make a job offer.
(b) If the CE determines that dual tracking would be useful, a rehabilitation referral will be sent to the RS for consideration. If the case is opened for both rehabilitation and nursing services simultaneously, the CE should send a letter to the claimant (with copies to the FN, RC, and EA) outlining the circumstances, roles of each party, and the claimant's expected cooperation with the return-to-work effort.
(c) If dual tracking occurs, the FN and RC have different roles, but each compliments the other. The FN should focus on the following:
- The claimant's medical condition in order to obtain permanent and/or stable, well-defined work tolerance limitations.
- Maintaining open communication with the physician while providing information as necessary to the CE and RC. Any needed communication by the RC with the physician should flow through or be coordinated with the FN (while still assigned to the case).
- Communicating with the SN, CE and RC as needed - documenting any communication in the monthly reports.
Once the FN obtains stable and well-defined work restrictions, FN intervention should be usually be closed, unless work with the EA is necessary to complete a job offer, and the RC should commence with developing a return-to-work plan.
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9. Vocational Rehabilitation Services. Returning the claimant to suitable work is the primary goal of vocational rehabilitation. It is a valuable resource for the return-to-work effort. In most cases, the earlier the claimant begins vocational rehabilitation, the greater the likelihood of a successful return to suitable, gainful employment.
Vocational Rehabilitation (VR) services are addressed in section 8104 of the FECA. Like medical treatment and wage-loss compensation, these services are a benefit to which the claimant may be entitled. While vocational rehabilitation is provided at the discretion of OWCP, participation on the part of the claimant ismandatory under the FECA.
The VR program serves a dual purpose: providing return-to-work services to the claimant while also providing a basis where appropriate for OWCP to make a determination on the claimant's capacity to earn wages. This paragraph will specifically address how vocational rehabilitation should be used in the disability management process to achieve a return to work. PM Chapter 2-0813 provides a comprehensive description of VR services.
The VR program is comprised of a Rehabilitation Specialist (RS), who is located in the district office, and the RC, who works on a contractual basis in the district office's servicing area. The CE, with recommendations from the RS, is responsible for the management and overall direction of the case, even during the VR period.
a. Vocational Rehabilitation Roles.
(1) The RS plays an important role in the VR process. The RS's responsibilities include, but are not limited to, the following:
- Ensuring there is a sufficient number of counselors to service the district office's needs.
- Monitoring the RC's performance in correlation to both the contract specifications and the quality of service provided.
- Assigning RCs to particular cases.
- Reviewing RC reports for completeness and timeliness prior to authorizing payment of bills.
- Communicating with the CEs regarding the cases assigned for VR services.
- Relaying important or time-sensitive information to the CEs so that action can be taken if needed, e.g. a new issue with the claimant's medical condition that is hampering the VR effort.
- Providing training and guidance to CEs in regard to how to recognize when vocational services are necessary to assist the claimant with returning to work, and serving as a vocational resource to the CEs.
- Providing solutions for return-to-work barriers in cases.
(2) The RC is a certified counselor who assists with the VR effort in a number of ways. The RC's contact is usually in person with the claimant since he or she is assigned by area when available. The RC's responsibilities include, but are not limited to the following:
- Evaluating the claimant's vocational abilities and transferrable skills.
- Arranging for vocational testing and training.
- Overseeing Occupational Rehabilitation Plans.
- Conducting labor market surveys.
- Formulating a vocational re-employment plan.
- Assisting the claimant with job-seeking skills such as resume building and interview techniques.
- Arranging for specialized ergonomic job and home modification services.
- Making recommendations to the RS and CE if a particular barrier is hindering the return-to-work effort.
- Working with the FN during a dual tracking period.
b. Referral for rehabilitation services should be made in the following circumstances:
(1) If the claimant has been released to work and the FN intervention period has ended, the claimant should be able to work at least four hours per day if the goal is return to work with the date of injury employer. If return-to-work services with the EA have been exhausted and the goal of rehabilitation is placement with a new employer, the claimant should be able to work on a full-time basis and should be capable of at least sedentary work. A referral for a work release of only 4 hours can be considered in some circumstances, and the CE and the RS should discuss this option, especially if part-time work may be available.
(2) If the physician recommends work hardening and work restrictions are expected after completion of the program, the claimant can be referred to vocational rehabilitation for an Occupational Rehabilitation Program (ORP). Once restrictions are established, the rehabilitation services will then focus on return-to-work efforts.
(3) A Dual Tracking period with FN services and VR services may be helpful, as outlined in the prior paragraph, 8(c)(6).
c. Return to work with the EA (not involving Dual Tracking) is only to be undertaken by the RC if the CE and FN nurse have not previously exhausted all attempts to get a suitable job offer.
(1) The time frame for placement with the previous employer is a maximum of 90 days, although if the EA chooses not to make an offer early during this phase, the phase should be much shorter.
(2) During this phase, the claimant, RC, EA and CE all participate in the return-to-work effort. A conference call is often helpful to address any issues that arise which may impede this process. Conferences are discussed later in this chapter.
(3) If the outcome of this phase is positive and the claimant returns to suitable employment with the agency, the RC should remain on the case for 60 days after the return to work. At that time, OWCP should be in a position to issue a formal loss of wage-earning capacity decision, if applicable. If the claimant is working full time in a light duty position, but the position is not one for which a formal loss of wage-earning capacity decision can be issued, the RC should ascertain whether that position will continue indefinitely or whether further VR services would be helpful in formulating a permanent job offer. If further services will not be helpful, VR will close at that time.
(4) If the claimant does not return to work during this phase, there are two possible outcomes. If the claimant refused to accept a suitable offer of employment, the CE should follow sanction procedures under Section 8106 of the FECA, as discussed in FECA PM Chapter 2-0814. If the agency failed to offer employment, the VR effort should move on to the next phase, the development of a plan for placement with a new employer.
d. Plan development is the next phase of vocational rehabilitation. During this phase, the RC should gather information about the claimant's work history, education, and transferable skills. This information is then compared to the jobs available in the local labor market where the claimant resides.
(1) If the claimant has sufficient transferable skills to obtain employment that is reasonably available in the local labor market, a placement plan is put into place. The claimant will be provided with placement assistance (resume and interviewing skills, job leads, etc.) for 90 days. If the claimant secures a job, the counselor will follow up for 60 days to ensure a successful return to work. If the claimant does not obtain a job or fails to take advantage of the placement assistance provided, a constructed loss of wage-earning capacity decision can be considered based on the job(s) identified in the placement plan.
(2) If the employing agency cannot offer a job and the claimant is unemployable in the local labor market with his or her current skills, a training plan can be pursued if vocational testing establishes that the claimant has the necessary aptitude. The claimant can be provided training to prepare him or her for a job that is reasonably available in the local labor market. Once the training period has ended, the claimant is offered placement services as described above. If training is needed, short-term or pre-vocational training that would serve to upgrade basic skills are the preferred options. Long-term training plans should be pursued as a last resort, since returning the claimant to work in the shortest time possible is a primary focus of vocational rehabilitation.
e. Dual Tracking. OWCP may determine that the assignment of a RC simultaneously with FN intervention in certain circumstances could be useful, as noted earlier in this chapter. The referral for the RC in these cases will be for Medical Rehabilitation, and the period will usually be limited to 3 months for concurrent services.
If the EA needs vocational information and assistance with formulating a job offer, the RC and FN may work concurrently with the EA. In these instances, the RC may be able to provide vocational testing, transferable skills analysis, ergonomic assessments, and even arrange for short-term training that would enable the EA to make a job offer.
In other cases, where the EA has determined there will be no job opportunities for the claimant, the claimant's work restrictions may not yet be stable and well defined. As a result, full plan development cannot begin immediately with these claimants, but, in the interest of expediting the return to work, the RC may assist with work hardening and functional capacity evaluation scheduling and begin the groundwork for the development of a return-to-work plan by obtaining the claimant's work history, performing preliminary labor market surveys, and conducting transferrable skills analysis.
The FN should focus on the medical aspects of the case, and the RC should focus on the vocational aspects of the case. Once the claimant has stable and well-defined restrictions, nurse intervention should usually cease (unless continuing assistance to the EA would be helpful in formulating a job offer), and the RS will direct the RC to begin actual plan development.
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10. Employing Agency Intervention. The EA has a vested interest in returning the claimant to work as soon as possible, so partnering with the EA throughout the return-to-work process is important to a successful outcome.
The first step in the disability management process is solely within the EA's purview - the transmission of new injury claims and subsequent wage-loss claims. The quicker the EA transmits the new injury claim and supporting evidence to the OWCP, the sooner the OWCP can take action on the claim. If the case can be accepted upon initial review, the CE can move straight into disability management if the claimant is losing time from work or disabled from performing his or her date of injury position.
It is also the EA who first speaks to the claimant about the OWCP and what to expect after a claim is filed. For that reason, the OWCP should partner with the EA throughout the process so that the EA can effectively communicate the purpose of the FECA program to the claimant and convey from the outset that medical recovery and return to work are the ultimate goals.
a. Communication between the OWCP and the EA. Since the EA and the OWCP have the same goal of the claimant returning to work as quickly as possible, it is important to maintain open and ongoing communication with the EA throughout all stages of disability management.
During the disability management process, the OWCP should be able to expect the EA to:
Notify the OWCP promptly when the claimant either returns to work or does not return to work after being released by the AP and notified of the availability of modified work.
Allow the FN and/or RC access to the claimant's work site.
Maintain contact with the claimant and address the claimant's concerns about personnel issues such as retirement and health insurance benefits that may be affected by a return to work.
Communicate any medical updates to the OWCP.
The EA should expect the following from the OWCP during the disability management process:
Information relevant to the return-to-work effort, especially work tolerance limitations.
Pertinent information obtained by the FN and RC that would enable the EA to formulate a job offer.
Prompt determinations on medical issues and the suitability of job offers when needed.
Communication as described above will occur both telephonically and via written correspondence, but use of the phone (with documented CA-110s for the file) for many issues is the best way to resolve outstanding issues.
b. Job Offers. The most important action of the EA can be the formulation of a job offer within the claimant's work restrictions. The CE can solicit a job offer once work restrictions are obtained. The EA may also obtain the work restrictions through the FN, physician, or even the claimant. Once obtained, it is up to the EA to provide work accommodations and create a suitable job.
The EA will determine whether work accommodations can be made when medical restrictions are presented. The FN can assist with this process during nurse intervention, and the RC can assist with this process during vocational rehabilitation. If work accommodations are available for a partially disabled claimant, the EA will advise the claimant in writing of the specific duties and physical demands of the modified position. Offers of employment are addressed in detail in PM Chapter 2-0814.
If a FN is assigned to the case, but the EA, the FN, or the OWCP believes that vocational rehabilitation services may also be beneficial for the return-to-work effort (perhaps to arrange for specific job training or address ergonomic issues unable to be addressed by the FN), then a RC can be assigned concurrently to assist with the return-to-work effort.
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11. Claimant Intervention. The most important party in the return-to-work process is the claimant. All interventions and CE actions are done with one goal in mind, ensuring that the claimant recovers and is able to return to work in a sustained capacity following a work injury. Claimants must therefore understand from the very beginning that the OWCP is in fact a return-to-work program - not a retirement program. The EA plays a large part in encouraging return to work, but it is the OWCP's responsibility as well to convey the advantages of a speedy return to the workplace.
a. Retention Rights. A primary goal of disability management is to return the claimant to work as soon as possible, but particularly within one year of the onset of disability. This one-year deadline is significant because section 8151(b) of the FECA requires the EA to offer the claimant his or her former position or its equivalent if the injury or disability has been overcome within one year. If the disability is overcome after one year, the EA must make "all reasonable efforts" to rehire the claimant. In practice, this means that in some cases there may be only a one-year window of opportunity for return to work with the EA. It is therefore essential that a return-to-work agenda be emphasized early in the life of an accepted disability claim to take advantage of this limited opportunity so that the claimant does not lose his or her opportunity to continue in the Federal employment system and does not sustain a negative impact on retirement benefits.
If the claimant has not returned to work and that one-year time frame is approaching, the claimant should be reminded of his or her retention rights. Approximately two months prior to the one year mark, or at the end of efforts to place the claimant in a job with the previous employer (whichever occurs sooner), the claimant should be advised in writing that the previous employer has not identified a job meeting the claimant's work limitations and that contacts with the previous employer do not indicate that any such offer will be forthcoming. It is also appropriate to alert the claimant at this time that the OWCP will begin vocational rehabilitation plan development if the claimant can work in some capacity, and that the rehabilitation effort will prepare the claimant for other work, possibly with another government agency but probably with a private employer. The CE uses the "Ten Month" letter for this purpose.
b. Communication between the OWCP and the Claimant. Early in the disability management process, the FN plays a key role in communicating on behalf of the OWCP. The CE may also need to communicate with the claimant as well to clarify any questions the claimant may have. Timely responses to the claimant's inquiries will foster a good relationship with the claimant and alleviate any concerns he or she might have about the status of his or her case moving forward. As outlined earlier in this chapter, timely customer service and prompt payment of compensation claims build trust with the claimant and enable the claimant to concentrate on recovery and return to work.
Beyond routine customer service items, the CE or other designated staff will also communicate with the claimant when:
- A FN and/or RC are assigned to the case.
- Medical information is requested from the AP.
- The claimant is scheduled to report for a second opinion or referee examination.
- A job has been determined to be suitable and the claimant is expected to return to work.
- The various stages of vocational rehabilitation begin.
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12. Conferences. As noted throughout this chapter, ongoing and steady communication between all parties involved in the disability management process is vital to a successful resolution. Conferences are a particularly effective means of addressing any issues that arise that may impede the return-to-work process. Conferences are also helpful when miscommunication between one or more parties has occurred.
There are two types of conferences - formal conferences and informal conferences. Formal conferences are discussed in PM Chapter 2-0500. Formal conferences require a memorandum of conference, as well as a follow-up comment period. When due process is involved, e.g. during the adjudication of a claim or reaching a final determination in an overpayment case, a formal conference is needed. At other times, though, an informal conference may be sufficient.
a. An informal conference during disability management is a form of mediation, and the goal is to address the concerns of all involved parties and arrive at a solution that is agreeable to everyone. Some reasons for conferencing during the return-to-work effort include, but are not limited to, the following:
(1) Medical evidence used for a return to work may be disputed by the claimant or the EA. An explanation of how medical evidence is afforded the weight for return-to-work purposes can alleviate these concerns.
(2) The duties of a limited duty position offered by the EA may not be described sufficiently so that a determination on suitability can be made. Additionally, a claimant may have a different idea about the requirements of a described job duty than the employer. Discussing these concerns and arriving at an understanding of the actual duties of an offered position can serve to inform the EA of how the job offer should be written and to alleviate the claimant's concerns that a particular job requirement exceeds his or her work abilities.
(3) Wage disparity can be a major deterrent to a claimant seeking to return to work. During the conference, the CE can explain the loss of wage earning capacity procedures and assure the claimant that income will not decrease even if the wages of the limited duty position are lower than those of the date of injury position.
(4) Personnel issues may not affect the suitability of a job offer as reviewed by the OWCP, but they can present obstacles to a successful return to work. For example, the claimant may object to a new work schedule. The conference allows an opportunity for all parties to express concerns and for a compromise to be reached whenever possible.
(5) Placement with a new employer may not be the claimant's desire. He or she may want to retain Federal status instead. If the EA is unable to make a job offer, the placement period during vocational rehabilitation is critical to a successful outcome for the claimant. If the claimant is aware from the beginning what will happen at the end of the placement period, e.g. a likely reduction of benefits with or without placement, he or she is more likely to cooperate fully during the placement period.
b. Participants in the Conference. A conference is usually held with the CE plus two or more parties. During nurse intervention, the FN will often be involved as well as the EA and the claimant. During vocational rehabilitation, often times the RS and the RC will participate along with the claimant and CE. There are no set rules on who should be part of the conference or how many people should participate. Whichever parties can help resolve the issue at hand should be involved.
c. Elements of an Informal Conference. Unlike a formal conference where an actual conference memorandum is necessary and the memorandum is mailed to the participants, informal conferences can usually be documented with a complete and thorough CA-110 or memo in the case file. Regardless of the format used, the conference should be fully documented in the file. Whether using a CA-110 or memo, it should contain the following information:
(1) A heading at the top annotating the call as a Conference.
(2) A list of who was involved in the conference and his or her role in the process, e.g. Jane Smith - EA Injury Compensation Specialist.
(3) Descriptive but thorough bullet points may be used in lieu of a full narrative, but the CE should be careful to attribute specific comments to specific individuals.
(4) If any action was promised as a result of the conference, the bottom portion of the CA-110 should clearly outline the pending actions.
(5) While a narrative memorandum is not needed, the CE must still ensure that the CA-110 or memo contains an accurate depiction of the content of the conference.
d. Follow Up Actions. Because these conferences are used to address various return-to-work issues and resolve any miscommunication, as opposed to formal adjudication actions, a formal follow up is not required. Often times the conference itself will have resolved the issue at hand. Other times, the CE's follow-up actions (letters, second opinion referrals, requests for a new job offer, etc.) will reflect information discussed during the conference.
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13. Intervention Strategies and Timing. Each interaction between the CE and the claimant, EA or AP should be used to ensure the claimant's recovery is progressing and to emphasize the goal of return to work. Brief but timely inquiries and open communication with all involved parties are effective tools in conveying case management goals and encouraging a successful return to work. Interventions may involve any of the types described in this chapter, and, as previously noted, these intervention actions can and should overlap for effective disability management. Taking actions sequentially is not usually the most effective method. Intervention actions are most effective when used simultaneously.
a. Key Strategies for Disability Management.
(1) Consider the evidence in the specific case file. The appropriate intervention to take on a specific case is based on a number of factors, including the accepted condition, extent of injury, treatment provided, availability of work accommodations, and other variables.
(2) Identify any pending obstacles or barriers to medical recovery and return to work.
(3) Anticipate the outcome of the possible intervention actions. Prior to taking an action, the CE should anticipate the possible outcome of such an action to determine whether the action will enable the disability management effort to progress.
(4) Decide on the best intervention action to resolve any pending issues in the case and then move forward.
(5) Assess the outcome of the intervention action taken. Did the intervention action yield the necessary outcome to move forward in the case?
(6) React to the new evidence in the file and repeat the five steps outlined above again until the case has been resolved.
b. Choosing an initial Disability Management strategy. Decisions made early in the disability management process are crucial to minimizing the effects of a work related injury in the long-term. The CE should review the specific circumstances of the case and utilize judgment in deciding which strategies to employ in order to minimize disability and the effects of the work injury. Initial actions will not be the same for every case. For instance, if the claimant is off work because of a pending surgery, this would require different intervention than a case where the claimant has undergone treatment and the physician anticipates a return to work in the very near future.
Choices made upon initial review of the claim can affect the return-to-work effort. For example, if a claimant files a claim for carpal tunnel syndrome and submits a medical slip stating "off work pending carpal tunnel release," the CE knows even before the case is adjudicated that the claimant is out of work. The CE therefore needs to make a decision about the best way to obtain the evidence necessary to adjudicate the claim so that disability management actions can be initiated and compensation can be paid if the case is ultimately accepted. Tailoring the development letter to request information about the possibility of surgery, while simultaneously requesting the evidence needed to adjudicate the case, is one way to begin the disability management process before the case is even accepted.
c. Adjusting Disability Management strategies as the case progresses. As the claim progresses through the disability management process, the CE should regularly assess the claimant's medical condition and return-to-work status and decide what type of intervention is appropriate. Tailoring the kind of interventions taken to the specific circumstances of the case and anticipating the outcome of each intervention is key to successful disability management. For instance, a conference call might be appropriate to address a claimant who is not fully cooperating with the vocational rehabilitation process, but it will not be useful in a case where disability has recurred and medical management is needed. A few examples of the decision making process are outlined below.
(1) If the claimant has not returned to work, the CE should usually write directly to the AP first or seek the assistance of the FN in addressing necessary issues with the AP. However, a second opinion should be scheduled if the AP fails to submit rationalized medical evidence that clearly establishes the claimant's work tolerance limitations. Alternatively, there may be a benefit to taking both actions at the same time. If the AP does not respond to the letter or provides an inadequate response, a second opinion will already be in process to obtain the requested information. If the AP does respond, the opinions of the two physicians can be compared and weighed to determine the next disability management action. Should a conflict of medical opinion exist, a referee examination can be scheduled to clarify and resolve the issue.
(2) If the EA fails to make a suitable job offer, the CE should direct the FN to work with the EA on the formulation of such an offer. If the EA cannot or will not make a job offer, a conference should be considered. If a job offer is still not forthcoming, the case should be referred for vocational rehabilitation.
(3) If the claimant has been released to work, but a FN is no longer assigned to the case, the CE can request a job offer from the EA and refer the case for VR. Taking these actions simultaneously is usually the best strategy so that a RC can assist with the creation of a job and provide adjustment counseling to the claimant, which should result in a smoother transition back into the work environment for the claimant.
(4) If the claimant develops a disabling medical condition after VR efforts have been initiated, the CE should assess the medical evidence to determine whether the condition is work related. After contemplating the outcome of the various options, the CE needs to decide whether to approach the AP, refer the claimant for a second opinion, or pursue both courses of action simultaneously. During this medical intervention, the CE and RC should continue to communicate with the claimant so that return to work remains the ultimate goal even during this period of development.
d. Intervention Timing. Though intervention actions vary, timely and appropriate interventions do help to minimize the length of disability by maintaining focus on the goal of assisting claimants in returning to work.
As stated previously, a primary goal of disability management is to return the claimant to work as soon as possible, but particularly within one year of the onset of disability. It is critical that the CE be attentive to the specific issues of each case in order to actively manage the case and take timely action on any situation to achieve this goal. CEs should use all available tools, including reminders and reports, in order to take substantive actions on disability management in a timely fashion. While in active disability management, the case should usually be reviewed often and as frequently as necessary to ensure intervention actions and the disability management strategy are on course. This consistent focus will allow CEs to address issues hindering recovery, facilitate return-to-work efforts, and move cases towards resolution.
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14. Resolution of Disability Management Cases. The CE should actively manage the case until the claimant reaches maximum medical improvement and a resolution is reached regarding the claimant's work capacity. There are several possible outcomes; the purpose of this paragraph is to describe these possible outcomes.
Following are the most likely outcomes, along with any associated decision and the steps needed to pursue that course of action.
a. Complete recovery from injury-related conditions.
(1) In cases where the claimant has completely recovered from the employment injury and returns to the job he or she held when injured, no formal decision is necessary and the case may be closed if the claimant has been released from care.
(2) In some instances, the claimant has fully recovered but does not return to the date of injury position. The claimant has no ongoing entitlement to compensation for wage loss and medical benefits once the injury-related condition has resolved. In these cases, a formal decision following a notice of proposed termination is necessary to notify the claimant of this change in entitlement. (Formal decisions are discussed in PM Chapter 2-1400.) As the claimant's response may change the preliminary determination to terminate compensation, the OWCP should continue any nurse and/or rehabilitation services during the notice period until a formal decision with appeal rights is issued, unless the claimant is already in receipt of OPM benefits.
b. Complete recovery from injury-related disability.
(1) In cases where the claimant has recovered from the employment-related disability and returns to the job he or she held when injured, no formal decision is necessary. If the claimant has returned to the date of injury position but still requires ongoing medical treatment, the case can be left open for medical benefits.
(2) In some instances, the claimant recovers from the injury to the point that he or she is capable of performing the date of injury position but does not actually return to that job. The claimant has no ongoing entitlement to compensation for wage loss once the medical evidence establishes the claimant's ability to perform the date of injury position. In these cases, a formal decision following a notice of proposed termination is necessary to notify the claimant of this change in entitlement. (Formal decisions are discussed in PM Chapter 2-1400.) As the claimant's response might change the preliminary determination to terminate compensation, the OWCP should continue any nurse and/or rehabilitation services during the notice period until a formal decision with appeal rights is issued, unless the claimant is already in receipt of OPM benefits.
c. Return to modified work, with or without wage loss.
(1) Re-employment with no Loss of Wage Earning Capacity (LWEC).
(a) If the claimant returns to a new position or a modified version of the date of injury position with the previous employer at a pay rate commensurate with the current pay for the job held when injured, the claimant has no loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days, the CE should review the case to determine whether the medical evidence establishes permanent restrictions and whether the position fairly and reasonably represents the claimant's wage earning capacity. If so, the CE should prepare a formal decision making this finding. This type of decision is necessary even though there technically is no loss of wage earning capacity. See PM Chapter 2-0814. If the position does not fairly and reasonably represent the claimant's wage earning capacity, no decision can be issued. Different resolution codes are used for each of these scenarios.
(b) If the claimant returns to work with a new employer at pay rate commensurate with the current pay for the job held when injured, the claimant has no loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days and the medical evidence establishes permanent restrictions, the CE should prepare a formal decision addressing whether the earnings fairly and reasonably represent the claimant's wage earning capacity.
(2) Re-employment with LWEC.
(a) If the claimant returns to a new position or a modified version of the date of injury position with the previous employer and is earning less than the current pay rate of the job held when injured, the claimant has sustained a loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days, the CE should review the case to determine whether the medical evidence establishes permanent restrictions and whether the position fairly and reasonably represents the claimant's wage earning capacity. If so, the CE should prepare a formal decision making this finding. See PM Chapter 2-0814. If the position does not fairly and reasonably represent the claimant's wage earning capacity, no decision can be issued.
(b) If the claimant returns to work with a new employer and is earning less than the current pay rate of the job held when injured, the claimant has sustained a loss in wage earning capacity as a result of the injury. Once the claimant has satisfactorily performed the position for a period of at least 60 days and the medical evidence establishes permanent restrictions, the CE should prepare a formal decision addressing whether the earnings fairly and reasonably represent the claimant's wage earning capacity.
d. Determination of LWEC without actual job placement. This type of decision can be issued after the OWCP has made reasonable efforts to return the claimant to work and has advised the claimant of his or her rights and responsibilities. See PM Chapters 2-0813, 2-0814, and 2-1400.
In these cases, the claimant has been notified that the OWCP will provide vocational rehabilitation assistance leading to re-employment. The claimant is able to return to work and the file contains documentation that establishes appropriate work is reasonably available in the local labor market; therefore, benefits are adjusted to reflect any loss in wage earning capacity. The OWCP issues a decision based on the selected jobs, regardless of actual employment status.
In this instance, the CE will prepare a pre-reduction notice, addressing the claimant's loss of wage earning capacity based on a suitable position for which the claimant received training and/or placement efforts. After the notice period ends, a formal decision establishing the claimant's wage earning capacity will be issued, taking into account any evidence or arguments submitted during the notice period.
e. Application of sanctions. A claimant's failure to cooperate with the OWCP's rehabilitation and/or reemployment efforts may result in the suspension, reduction, or termination of benefits.
In these cases, the claimant has been notified of the obligation to participate in vocational rehabilitation efforts and has been provided vocational rehabilitation assistance leading to re-employment, either in the private sector or with another Federal agency. If the claimant continues not to cooperate, even after being warned of the consequences of non-cooperation, the CE will proceed with the reduction or suspension of benefits. Alternatively, a formal decision may be issued for failure to accept suitable employment. See PM Chapters 2-0813, 2-0814, and 2-1400.
f. A finding that the claimant has no wage earning capacity or re-employment potential for the indefinite future can be made on the basis of a medical or vocational determination. If no rehabilitation plan can be developed due to the severity of the claimant's medical condition and/or the limited job market in the claimant's commuting area, the CE may determine that the claimant has no wage earning capacity. If there is no expectation of further recovery or a change in the vocational determination or medical condition, the case can be placed in PN status with the concurrence of the Supervisory Claims Examiner. See PM Chapter 2-0812. This determination, however, should not be made during the early period of disability, especially during the first 30 months, except in rare circumstances.
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1. Purpose and Scope. This chapter describes the Disability Management (DM) Tracking System in the Integrated Federal Employees' Compensation System (iFECS), through which periods of disability and intervention actions associated with Case Management, Nurse Intervention and Vocational Rehabilitation are monitored. It addresses why and how a disability management record is created, managed, updated and resolved. It also addresses coding and data entry for this system and describes the relationship between the DM Tracking System and the tracking system for nurse and vocational rehabilitation activity.
Information related to the various DM components can be found in other chapters of the Federal Employees' Compensation Act (FECA) Procedure Manual (PM).
a. The DM process is outlined fully in FECA PM 2-0600, Disability Management.
b. Medical management is discussed in FECA PM 2-0810, Developing and Evaluating Medical Evidence. See also Part 3 Medical.
c. The Nurse Program is outlined in FECA PM 2-0811, Nurse Case Management, and FECA PM 3-0201, Staff Nurse Services.
d. Monitoring disability claims paid on the periodic roll is discussed in FECA PM 2-0812, Periodic Review of Disability Claims.
e. The Vocational Rehabilitation Program is outlined in FECA PM 2-0813, Vocational Rehabilitation Services, and in the Office of Workers' Compensation Programs (OWCP) PM Part 3, Rehabilitation.
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2. Introduction. OWCP is responsible for assisting injured workers with medical recovery from a work injury and facilitating a return to work as soon as practicable so that the length of disability is minimized. The processes relating to these functions are collectively known as Disability Management (see FECA PM 2-0600). Disability Management is comprised of both the Quality Case Management (QCM) phase of a disability case, which encompasses the first 30 months of disability, as well as the Periodic Roll Management (PRM) phase, when disability continues beyond the initial 30 months. The DM Tracking System is used during both the QCM and PRM phase of a case. The DM Tracking application is used to track the actions taken during the DM process, as well as critical return-to-work and case closure data used by the Division of Federal Employees' Compensation (DFEC). This system measures the duration of disability, the effectiveness of case management actions, the success of returning injured workers to employment, and case resolutions following disability which resulted from a work injury or illness. Consistent and accurate coding in the DM Tracking System is essential for proper analysis and measurement of actions taken during the DM process.
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3. DM Goals. To measure performance, OWCP tracks disability cases and focuses on two overarching goals, return-to-work and case resolution. These goals are tracked and measured in several different ways, with much of the data taken directly from DM Tracking. The various specific goals provide a measurement of the effectiveness of case management.
a. Return to Work. Returning the claimant to work as soon as possible, but especially within one year of the onset of disability, is the primary goal of disability management. This one-year deadline is significant because section 8151(b) of the FECA requires the employing agency to offer the claimant his or her former position or its equivalent if the injury or disability has been fully overcome within one year. See PM Chapter 2-0600-11(a), which discusses retention rights in greater detail. This one-year time frame is utilized in the tracking of lost production days.
(1) OCM Lose Production Days (LPD). QCM LPDs begin to count on the date disability begins and continue to count either until the employee has returned to full-time work or until certain closure codes are entered into DM Tracking.
(a) The formula used to compute the average LPDs assumes that each employee will remain off work for the entire first year; therefore, for each employee who has not returned to work during year one, the total number of lost production days defaults to 365. When the employee returns to work, the number of LPDs for that employee is adjusted to reflect the actual number of days of disability.
(b) LPDs are calculated differently in cases where the return to work is less than full-time. If a claimant returns to part-time employment, the LPDs continue to count, but each day defaults to a partial day, as opposed to a full day.
(c) When a claimant returns to work, or some other action is taken to resolve a case within the first year of disability, the overall LPD average should drop. The sooner the return to work or case resolution, the greater the reduction in average LPDs.
(2) Return to Work within Two Years. On July 19, 2010, the President established a 4-year Protecting Our Workers and Ensuring Reemployment (POWER) Initiative, covering fiscal years 2011 through 2014. The POWER Initiative extends prior workplace safety and health efforts of the Federal Government by setting more aggressive performance targets, encouraging the collection and analysis of data on the causes and consequences of frequent or severe injury and illness, and prioritizing safety and health management programs that have proven effective in the past.
(a) One of the seven goals in the POWER initiative is speeding employees' return to work in cases of serious injury or illness. The DFEC measures this goal by tracking return to work rates within a 2-year period.
(b) Not all DM cases count toward this 2-year goal, but all cases measured for this goal are taken from the existing DM universe. Note that only the 14 government agencies with the largest, statistically-significant case volumes (excluding the United States Postal Service) are included in this POWER goal.
(c) Since goal 7 of the POWER Initiative focuses on return to work with the original employer (at the Department level), a success is achieved only when the injured worker returns to work with the original employer within the two-year tracking period (which starts when the OWCP creates the DM record).
b. Resolutions. The term resolution has slightly different meanings depending on the phase of the case - QCM or PRM. Paragraph 13 of this chapter discusses the various types of resolutions in more detail.
(1) QCM Resolution. The QCM resolution goal is a measurement set at 30 months from the date disability begins. Regardless of whether or not the claimant returns to work, a case will remain in the QCM universe until a resolution is reached, or the case reaches 30 months from the date disability began. In general, a QCM resolution means that a final decision has been reached on a case if the claimant has not returned to his or her date of injury job. Resolution examples include a termination for no continuing disability, a formal loss of wage-earning capacity (LWEC) decision, etc.
If the claimant remains totally disabled and/or no resolution code has been entered into the DM Tracking System by the 30-month mark, the case will be considered unsuccessful with regard to DFEC's QCM resolution goal. At that time, the case moves into the PRM universe if there is continued wage loss.
(2) PRM Resolution. Unlike the QCM resolution goal, there is no specific timeframe for achieving a PRM resolution in a specific case. A case will remain in the PRM universe indefinitely until a resolution is reached. The types of resolutions discussed above, however, for QCM also count as resolutions in PRM cases, e.g. a return to full duty work, return to light duty work with a formal LWEC decision, a termination for no continuing disability, etc. There is one addition, though, for PRM cases that does not apply to QCM. Because of the nature of PRM cases (longer term disability), a determination that there has been no change in the claimant's entitlement may also count as a resolution as long as the medical and factual evidence in the file reflect this finding; the case, however, remains in the PRM universe.
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4. DM Records. A DM record should be created for each period of disability. Some cases may have more than one period of disability and, therefore, multiple records may exist throughout the life of a case, but only one DM record should be active in a particular case at one time.
In some instances, a record will be automatically created, and in other instances a record must be manually created. It is important that the Claims Examiner (CE) recognize the need to create a DM record manually so that periods of disability can be appropriately tracked and managed.
a. When to create a DM record. Tracking and management of a DM case begins early in the life of a case. Early tracking aids the CE in managing the case by providing the CE with a mechanism to record case management actions and return to work (RTW) data until a resolution is reached.
(1) Case Acceptance. A DM record should be created as soon as a case is accepted and the evidence indicates that the claimant has not returned to work as a result of the injury. A DM record can also be created at the time of acceptance if the claimant is working but is still disabled from his or her date of injury position.
(2) COP Nurse Closure. In traumatic injury cases where a COP nurse has been assigned, a COP Nurse Closure report is on file, and there is no evidence in the file reflecting a full-time RTW date, the CE should review the case for appropriate DM actions. If the claimant has not returned to work, and there is no clear imminent RTW date, a DM record should be created in an accepted case, even if the COP period has not yet expired. A DM record can also be created at the time of COP Nurse case closure and case acceptance if the claimant is working but is still disabled from his or her date of injury position.
(3) Lost Time from Work. A DM record should be created any time after acceptance of the case when the claimant is disabled from work due to the work-related condition(s).
(a) When the CE first becomes aware that the claimant is disabled from work (even if the COP period has not expired or a wage-loss claim has not yet been received).
(b) The first CA-7, Claim for Compensation, is approved for a non-intermittent period of leave without pay, and medical evidence supports continued disability from work.
(c) A recurrence of disability is accepted.
(d) If surgery is approved, the CE can ascertain the date of surgery (which would equate to disability from work). The DM record can then be created at the time of surgery, even if a CA-7 has not yet been received.
b. DM Start Dates and Track Dates. When a DM record is created, these two dates are of particular importance. The goals outlined in the preceding section track from one of these two dates; therefore, it is of the utmost importance that they be accurate.
(1) The Start Date is the date that the DM record was created. This date cannot be modified.
(2) The Track Date usually reflects the date wage loss or the period of disability began. The Track Date can be entered by the CE when a DM record is manually created. This date can be modified by those who are authorized to do so, generally at a level higher than a CE.
(a) If the claimant returns to full-time light duty work before the DM record is created, the Track Date is the same as the Start Date. LPD will not be measured in these cases, but DM performance with regard to resolution tracking will be based on the Track Date.
(b) If the claimant returns to part-time light duty work before the DM record is created, the Track Date should be the date of the part-time RTW and partial LPDs will be counted. See paragraph 2-601-3a(1) for more discussion on how LPDs are calculated.
(c) For total disability cases, LPDs begin with the Track Date and are counted as explained in paragraph 2-0601-3a(1).
c. Maintaining the DM Record. Once the record is created, DM Tracking allows the CE to enter information regarding disability, intervention actions, work status, and medical work restrictions. The CE is responsible for maintaining the DM record so that it accurately reflects the intervention actions taken to assist the claimant in recovery and return to work.
Intervention codes -- including intervention actions, optional process codes, and closure codes -- should be entered on the Disability Tracking tab in the DM record in iFECS. Information about work status, job offers and suitability, and corresponding dates is entered on the Work Status Tracking tab in the DM record. When RTW information is saved, the data populates the first screen and LPDs are automatically updated, if applicable. Information about work restrictions can be entered on the third screen of the DM record to assist the CE in effectively documenting the record.
Some codes are mandatory and some codes are optional. The remaining paragraphs in this chapter discuss the coding structure in detail.
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5. DM Categories. When DM codes are entered, they automatically trigger updates to the DM categories. These categories reflect the progress of a DM record from the beginning stages until resolution is reached.
If a return to work without wage loss or other resolution is not achieved during the initial 30 months of QCM disability tracking, the DM record continues to be tracked and managed in the PRM universe until a resolution can be reached. If the resolution of a QCM case involving ongoing partial disability does not trigger a closed DM record, the ongoing disability is also managed and tracked under PRM.
The DM category codes and descriptions are as follows:
QCM - Triage |
A DM record is open and a COP Nurse has been assigned. |
QCM - Resolved Triage |
The claimant has returned to work full time within the 45-day COP period. |
QCM - Open |
A DM record is open and does not have a return to work date. A QCM-Triage category may be of record prior to this category, but not always. |
QCM - Working Light Duty |
The claimant has returned to work at less than full duty, but a loss of wage-earning capacity (LWEC) decision has not been issued. |
QCM - Complete |
The claimant has returned to work at full duty, or at modified duty with no loss of wage-earning capacity, a formal decision has been issued regarding the claimant's future entitlement (e.g. no injury-related disability, refusal of suitable work), or some other resolution code has been entered indicting no further entitlement to compensation (e.g. the claimant has elected retirement benefits). No further disability tracking action is necessary. |
QCM - Suspended |
A sanction decision (such as for failure to attend a medical examination) has been issued which suspends disability management actions. If the SRO code is entered, DM tracking resumes and the record reverts to the previous category code. |
QCM - Removed from QCM |
The DM record has been manually removed from tracking (e.g. it was created in error). |
QCM - Expired |
If no resolution has occurred within 30 months from the DM Track Date, the QCM record will expire. |
PRM-Open |
The DM record has been open 30 months or more past the DM Track Date and the claimant remains off work or is working with wage loss. The case will continue to be managed under PRM. |
PRM - Working LD |
The claimant has returned to work at less than full duty, but an LWEC decision has not been issued. |
PRM - PN |
A finding has been made that the claimant is entitled to payment on the periodic roll with no wage-earning capacity for the indefinite future (case status code PN). |
PRM -LWEC |
A formal loss of wage-earning capacity (LWEC) decision has been issued and the claimant is receiving payments on the periodic roll. |
PRM - Suspended |
A sanction decision such as for failure to attend a medical examination) has been issued which suspends disability management actions. If the SRO code is entered, DM tracking resumes and the record reverts to the previous category code. |
PRM - Remove from PRM |
The DM record has been manually removed from tracking within the PRM universe of cases (e.g. it was created in error). |
PRM - Complete |
The claimant has returned to work full duty, returned to work with no loss in wage-earning capacity, a formal decision has been issued regarding the claimant's future entitlement (e.g. no injury-related disability, refusal of suitable work), or some other resolution code has been entered indicting no further entitlement to compensation (e.g. the claimant has elected retirement benefits). No further disability tracking action is necessary. |
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6. DM Codes. The DM record should be updated to reflect the actions taken to bring a DM case to resolution. Some DM codes are mandatory, while others are optional. The codes are described in more detail later in this chapter.
a. Mandatory Codes. There are five types of mandatory codes.
(1) CE Intervention Codes. These codes must be updated in the DM record whenever a CE actively intervenes in a case in an effort to bring a case towards resolution. See 2-0601-7 for a detailed discussion on CE intervention codes. The following are some situations when a mandatory CE Intervention code is required:
(a) a narrative report is requested from a physician;
(b) a second opinion examination or referee examination has been scheduled;
(c) a nurse extension has been granted;
(d) a case is opened for dual tracking with both field nurse services and vocational rehabilitation services;
(e) a ten-month letter has been issued; or
(f) a conference has been completed.
(2) Codes Reflecting a Nurse or Vocational Rehabilitation Status Change. When a Field Nurse (FN) or Rehabilitation Counselor (RC) is assigned to the case, a nurse or vocational rehabilitation case has been closed, or the status of a nurse or vocational rehabilitation case has changed, the appropriate codes must be updated by the Staff Nurse (SN) or Rehabilitation Specialist (RS) via the Nurse/Rehabilitation Tracking System (NRTS). When the codes are entered into NRTS, the DM record will auto-populate with the appropriate DM code. See paragraph 2-0601-8 below for a detailed discussion of nurse intervention codes; see 2-0601-10 for a detailed discussion of vocational rehabilitation program codes.
(3) Return-to-Work Codes. When a claimant returns to work, the appropriate RTW information should be entered via the Work Status Tracking tab in the DM record. The RTW information should document the claimant's work schedule, his or her work capacity, and the effective date of the claimant's return to work. See paragraph 2-0601-11 for a detailed discussion of RTW codes.
(4) Closure Codes. Whenever a case is resolved other than through the claimant's return to full duty, the DM record should be closed using the appropriate closure/resolution code. See paragraph 2-0601-13 for a detailed discussion of QCM/PRM resolutions.
(5) Suspension Codes. If compensation is suspended for any reason, the DM record should be updated with the appropriate suspension code. However, when the claimant satisfies his or her burden and entitlement resumes, the DM record should be reopened with the appropriate code. See paragraph 2-0601-13.
b. Optional Codes. Optional codes are not required; however, entering these codes provides a detailed explanation of the progression of a DM case and can assist the CE with management of the case. Optional codes are useful not only to clarify the past management of a case, but also to indicate what further actions may be necessary. See paragraph 2-0601-12 for a detailed discussion of optional codes.
c. RMV Code. When a DM record is created erroneously, the case must be removed from DM using code RMV. This code should only be used when a case was placed into DM Tracking in error. Valid DM cases should not be removed from DM via the RMV code. If the reason is not clear, sufficient explanation should be given in the record to explain why the case was removed from DM using this code. This explanation may be documented by updating the notes section in DM Tracking.
Note - In some situations, the RMV code is automatically populated based on other codes that are entered.
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7. CE Intervention Codes. Codes should be updated in the DM record whenever a CE actively intervenes in an effort to bring a case towards resolution. The following mandatory codes should be entered into DM Tracking by the CE:
a. CON (Conference Completed). This code should be used for both formal and informal conferences, but it should only be used when the conference pertains to the DM aspects of the case, e.g. this code should not be added to DM Tracking if a conference was held with regard to an overpayment. The effective date of the status is the date of the conference.
b. OIC (Other Intervention by CE). Used when the CE contacts the claimant or Employing Agency (EA) to discuss a RTW date and/or the availability of limited duty. This code may be used more than once in a given DM record, but it may not be used when the conversation concerns bill payment, compensation payment, or other case issues not specific to disability management. The OIC intervention should be focused on RTW. The effective date of the status is the date of the letter or telephone conversation. It may be used in the following instances:
(1) The CE contacts the claimant to specifically discuss return to work issues. Topics would include the anticipated return to work date (for either regular or light duty); current work limitations and why they preclude any work at all, or preclude return to the claimant's regular job; and whether the claimant has contacted the employer about the availability of light duty. This type of contact will usually occur by telephone and should be documented in the file via a CA-110 (or equivalent). The conversation should be substantive and serve to remind the claimant of his or her responsibility to return to work.
(2) The CE contacts the EA to discuss work limitations or the availability of light duty, or to solicit a job offer. If the claimant has been released to work, the description of work limitations should be available on the date of the contact. If the use of OIC is based on a telephone call, the CE should fully document the conversation in a CA-110 (or equivalent).
c. MSI (Second Opinion Scheduled). The effective date of the status is defined as the date of the second opinion examination (a date in the future is allowed). This code should not be entered when a case is referred for a second opinion evaluation; rather, it should be entered once the appointment date has been set.
d. MRI (Referee Exam Scheduled). The effective date of the status is defined as the date of the referee examination (a date in the future is allowed). This code should not be entered when a case is referred for a referee evaluation; rather, it should be entered once the appointment date has been set.
e. QAP (Narrative Report Requested from Physician). Used when the CE poses written questions to the attending physician about the extent and duration of disability, work tolerance limitations or the claimant's ability to work, current treatment plan to facilitate medical recovery, etc. The effective date of the status is the date of the letter.
f. SRO (Suspension Reopened). If the claimant's compensation has been suspended for obstruction of the rehabilitation effort (SUC), obstruction of a medical examination (SUM), or failure to return Form CA-1032 (SUE), and compensation is later reinstated, code SRO is required. The effective date of the status is the date of that compensation was reinstated.
g. TML (Ten Month Letter Issued). A primary goal of disability management is to return the claimant to work as soon as possible, but particularly within one year of the onset of disability. This one-year deadline is significant because section 8151(b) of the FECA requires the EA to offer the claimant his or her former position or its equivalent if the injury or disability has been fully overcome within one year. If the claimant has not returned to work on a full-time basis, the claimant should be reminded of his or her retention rights and the CE should send such a letter by 10 months post Track Date (though it can be sent sooner). The effective date of the status is the date this letter is sent.
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8. Nurse Intervention Codes. Nurse intervention codes are used to document actions throughout the Nurse Intervention phase of DM. These codes document actions with regard to both the COP Nurse and the Field Nurse. The following are the mandatory codes pertaining to Nurse Intervention. Some are automatic and others must be entered manually.
a. COP Nurce (CN) Codes.
(1) NCP (Referred to COP nurse). This code is auto-populated from the date of assignment of the COP Nurse in NRTS.
(2) TCC (Triage COP Case). New traumatic injury claims are eligible for assignment to a COP Nurse seven (7) days after the claimant stops work (based on the data contained on the CA-1). If a return to work date has been entered into iFECS prior to assignment of a CN, the case will not be eligible for assignment. For eligible cases though, the TCC code is auto-populated using the "current" date to create an open DM record in the system. No LPD count during this period.
(3) TCQ (QCM - Triage to QCM - Open). Once 45 days from the date of injury have elapsed, if no return to work full-time code has been entered in DM Tracking, the status code TCQ is auto populated via a nightly run and the category changes to QCM - Open. The Start date and Track date are populated with the date the record is changed to QCM Open, and LPDs start to count. If the claimant has returned to part-time work, the category changes to QCM-Working LD and LPDs count partial days.
(4) TRC (Closed - Triage case with Full Time RTW during COP). If a full-time return to work date is entered in the DM record within 45 days of the date of injury, code TRC is auto-populated and the category is changed to QCM - Resolved Triage. Additional codes are not allowed after entry of TRC; therefore, if the CE wishes to track a full-time light duty return to work and assign a FN, a new DM record will need to be manually created. No LPD count in these cases and they are not considered as resolutions for QCM. Return to work activity and success during the COP Nurse phase of a case is assessed based primarily on the coding in NRTS.
b. Field Nurse (FN) Codes.
(1) NSN (Referred to Staff Nurse). The date the CE completes the referral to the Staff Nurse (SN). This code auto-populates to the DM record when the referral is completed in the Case Referral application in iFECS.
(2) NFN (Referred to Field Nurse). The date the SN makes the assignment to the FN. This code is auto-populated from the SN's assignment action made in NRTS.
(3) NF3 (30-Day Nurse Extension Granted). If the claimant has not returned to work in a full-duty capacity and there is something specific the FN can do within 30 days to further the return to work effort, the CE can extend nurse services for 30 days. There must be a clear indication that FN services would be useful for a specific purpose, and the case record must clearly document that purpose and that direction has been provided to the FN. After 30 days, if an additional extension is needed, the same justification and documentation are necessary to approve an additional 30-day extension.
No justification for a 30-day extension is needed if the claimant has returned to work and the extension is for monitoring that effort (60 days for light duty and 30 days for full duty); however, the extension coding should still be entered in the DM record. Refer to FECA PM 2-0811-10 for additional details about granting extensions during the FN assignment period.
(4) NF6 (60 Day Extension Granted). Just as with the 30-day extension, if the claimant has not returned to work in a full-duty capacity and there is something specific the FN can do within the next 60 days to further the return to work efforts, the CE can extend nursing services for 60 days. There must be a clear indication that FN services would be useful for a specific purpose, and the case record must clearly document that that purpose and that direction has been provided to the FN.
No justification for a 60-day extension is needed if the claimant has returned to work and the extension is for monitoring that effort (60 days for light duty); however, the extension coding should still be entered in the DM record. Refer to FECA PM 2-0811-10 for additional details about granting extensions during the FN assignment period.
(5) NCO (Nurse Case Closed). The initial nurse assignment is 120 days, regardless of whether the claimant has returned to light-duty work or not. A shorter assignment may be considered if the claimant has already returned to light-duty work. The initial assignment period can be extended consistent with the guidance provided in FECA PM 2-0811-10. Supervisory approval is necessary for extensions past 180 days unless the claimant returns to work during an initial extension period and the return to work monitoring period (60 days for light duty and 30 days for full duty) will exceed the 180 days. When FN intervention has ended, though, the NCO code is required. This code is auto-populated from the SN's closure action in NRTS.
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9. Dual Tracking Codes. During the Nurse Intervention period, the CE has the option to dual track certain cases. Dual tracking is when both a FN and RC are assigned to a case at the same time. Refer to FECA PM Chapter 2-0600-8, 2-0600-9, 2-0811-11 and 2-0813-5. Both dual tracking codes are mandatory, and both must be entered manually by the CE.
a. DTO (Dual Track Opened). This code is entered when it is determined that a case would benefit from dual tracking with a FN and a RC on the case at the same time. Since a FN will already be assigned to the case when dual tracking is initiated, code DTO should be entered when the RC is also assigned to the case.
b. DTC (Dual Track Closed). This code is entered when dual tracking is no longer needed. If the case is closed for Nurse Intervention, but the RC remains on the case, the DTC code should be entered when the FN is closed. If the RC is closed, but the FN remains on the case, the DTC code should be entered when the RC is closed.
Note - If the claimant returns to work as a result of dual track intervention, the RTW code (discussed later in this chapter) must be entered prior to the DTC.
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10. Vocational Rehabilitation Intervention Codes. A few codes are manually entered by the CE in DM to reflect vocational rehabilitation actions. However, most codes relating to vocational rehabilitation efforts are auto-populated into DM by coding entered by the RS in the NRTS application. The following are the mandatory codes pertaining to Vocational Rehabilitation.
a. Rehabilitation Referral Codes.
(1) RHR (Referred to Rehabilitation Specialist). This code is auto-populated into DM the date the CE completes the Vocational Rehabilitation referral in the Case Referral application in iFECS.
(2) RRC (Referred to Rehabilitation Counselor). This code is triggered by the date the RS makes the assignment to the RC. This code is auto-populated from the RS's assignment action in NRTS.
b. Plan Development Codes.
(1) RHD (Plan Development). When code D is entered into NRTS, status code RHD is populated into DM.
(2) RHI (Rehabilitation Plan in Place). When code I is entered into NRTS, status code RHI is populated into DM. In addition, an iFECS reminder is sent to the CE to send a letter advising the claimant of the eventual reduction of compensation as the result of rehabilitation efforts.
(3) RLT (Eventual Reduction via Rehabilitation - letter sent by CE). This code is manually entered into DM by the CE when the appropriate letter is issued to the claimant.
c. Placement Previous Employer Codes.
(1) RHN (Placement Previous Employer - Without Other Services). When code N is entered into NRTS, status code RHN is populated into DM.
(2) RHW (Placement Previous Employer - With Other Services). When code W is entered into NRTS, status code RHW is populated into DM.
d. Trading and Placement New Employer Codes.
(1) RHT (In Approved OWCP Vocational Training). When code T is entered into NRTS, status code RHT is populated into DM. This code does count as a QCM resolution.
(2) RHP (Placement New Employer). When code P is entered into NRTS, status code RHP is populated into DM.
(3) RHS (Self-Employment). When code S is entered into NRTS, status code RHS is populated into DM.
e. Assisted Re-employment Codes.
(1) RHG (Assisted Re-employment Program). When code G is entered into NRTS, status code RHG is populated into DM.
(2) RHV (Employed, Assisted Re-employment Program; RC Follow-Up). When code V is entered into NRTS, status code RHV is populated into DM.
f. Employment Codes.
(1) RHE (Employed). When code E is entered into NRTS, status code RHE is populated into DM. (The CE will still need to enter the RTW information in the Work Status tracking tab in the DM record.)
(2) RHZ (Post-Employment Services). When code Z is entered into NRTS, status code RHZ is populated into DM.
g. Codes related to Medical Issues and Interruption of Services.
(1) RHM (Medical Rehabilitation). When code M is entered into NRTS, status code RHM is populated into DM.
(2) RHX (Vocational Rehabilitation Services Interrupted). When code X is entered into NRTS, status code RHX is populated into DM.
h. Closure and Suspension Codes.
(1) RCL (Rehabilitation case closed with no RTW). When the rehabilitation case is closed with code 5 in NRTS, status code RCL is populated into DM.
(2) RHC (Returned to Claims Examiner). When code C is entered into NRTS, status code RHC is populated into DM.
(3) RWL (Rehabilitation non-cooperation 30-day warning letter). This code is manually entered into DM by the CE effective the date the letter is issued.
i. Schedule A Initiative Codes. DFEC's initiative to utilize the Schedule A non-competitive hiring authority to help rehire injured federal workers back into the federal government occurs during vocational rehabilitation. Codes related to the Schedule A Initiative must be entered into NRTS by the RS and then, upon notification, the CE manually enters the appropriate code in DM, as described below.
(1) SCI (Schedule A Identified). When the RS identifies a claimant who may be a suitable candidate for Schedule A placement, he or she will make a referral to the Schedule A RS for review. The RS will then code the case in RTS as AI (Schedule A Identified) and notify the CE so that SCI can be added to DM.
(2) SCC (Schedule A Certified). When a claimant wishes to participate in Schedule A placement services, in addition to the usual rehabilitation placement services for a job in the private sector, the Schedule A RS prepares a disability certification letter and enters code AC into NRTS and notifies the CE so that SCC can be added to DM.
(3) SCR (Schedule A Rejected). When a claimant is not a good candidate for Schedule A placement services the Schedule A RS enters code AR into NRTS and notifies the CE so that SCR can be added to DM.
(4) SCD (Schedule A Services Declined). When a claimant indicates that he or she does not want to proceed with Schedule A placement services, the RS enters code AD into NRTS and notifies the CE so that SCD can be added to DM.
(5) SCW (Schedule A RTW). When the claimant returns to work via the Schedule A hiring authority and the case record is documented with the specifics of the RTW, the RS enters code AW into NRTS and alerts the CE so that SCW can be added to DM. Note - Along with the Schedule A disposition code, the RS enters the usual NRTS codes to document the RTW. The CE then enters the usual RTW codes in DM to appropriately reflect the RTW via rehabilitation and to change the DM category. See paragraph 2-0601-11 for a discussion of updating RTW codes.
(6) SCO (Schedule A RTW Other). When the claimant returns to work without the use of the Schedule A hiring authority (after having been Schedule A Certified - SCC) and the case record is documented with the specifics of the RTW, the RS enters code AO into NRTS and alerts the CE so that SCO can be added to DM. Along with the Schedule A disposition code, the RS enters the usual NRTS codes to document the RTW. The CE enters the usual RTW codes in DM to appropriately reflect the RTW via rehabilitation and to change the DM category. See paragraph 2-0601-11 for a discussion of updating RTW codes.
(7) SCN (Schedule A Closed - No RTW). When the vocational rehabilitation placement period ends for a case in which the claimant was Schedule A certified (SCC) and there was no RTW, the RS enters code AN into NRTS and notifies the CE so that SCN can be added to DM.
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11. Return to Work (RTW) Codes. RTW codes are used to indicate a return to work during DM. All RTW codes are mandatory. In order to use RTW codes, the claimant must actually return to work; a release to return to work without an actual return to work is not sufficient for use of RTW codes.
These codes should be entered in the DM Work Status Tracking tab. Although RTW codes may be manually entered in DM Tracking by adding the specific status, this method of entering the code may not result in the proper tracking of LPD and should not be used. The specific hours and days worked should be entered on the Work Status Tracking tab, and the source should be identified as the CE, the FN, or the RC.
Any additional information regarding the job offer can also be entered on the Work Status Tracking tab. Information regarding the job offer, salary, the claimant's response, the suitability determination, the claimant's response to the suitability decision, and the CE's decision should be entered as appropriate.
The following are brief descriptions of each RTW code and the process for entering the codes in the DM record. Refer to FECA PM 2-0600 for additional details regarding case management actions surrounding a RTW.
a. Pre-DM RTW Codes.
(1) PFP (Pre-DM RTW Full Duty/Part-Time). Used when the claimant returns to full-duty work on a part-time basis before the DM record is created. This code begins counting LPDs at a fraction.
(2) PLF (Pre-DM RTW Light Duty/Full Time without wage loss). Used when the claimant returns to full-time light duty work before the DM record is created. This code prevents LPDs from counting.
(3) PLP (Pre-DM RTW Light Duty/Part Time). Used when the claimant returns to light duty part-time work before the DM record is created. This code begins counting LPDs at a fraction.
(4) PL$ (Pre-DM RTW Light Duty/Full Time with wage loss). Used when the claimant returns to full-time, light-duty work with wage loss before the DM record is created. This code prevents LPDs from counting.
b. Nurse RTW Codes.
(1) NFF (RTW via Nurse DOI or pre-established LWEC Job). Used when the claimant returns to work at the date of injury or pre-established LWEC position via nurse services. This RTW code stops counting LPDs. This type of RTW is also considered a closure code and a QCM/PRM resolution. No further codes can be entered after this RTW code.
(2) NFP (RTW via Nurse Full Duty/Part Time). Used when the claimant returns to part-time, full-duty work via nurse intervention. This code starts counting LPDs at a fraction.
(3) NLF (RTW via Nurse Light Duty/Full Time without wage loss). Used when the claimant returns to full-time, light-duty work via nurse services. This code stops counting LPDs.
(4) NLP (RTW via Nurse Light Duty /Part Time). Used when the claimant returns to part-time, light-duty work via nurse intervention. This code may also be used in cases that already have a PLP code, but only if the work hours actually increase due to intervention by the nurse. This code causes LPDs to be counted at a fraction.
(5) NL$ (RTW via Nurse Light Duty/Full-Time with Wage loss). Used when the claimant returns to full-time, light-duty work with wage loss via nurse services. This code stops counting LPDs.
c. Vocational Rehabilitation RTW Codes.
(1) RFF (RTW via Rehab DOI or pre-established LWEC Job). Used when the claimant returns to work at the date of injury or pre-established LWEC position via rehabilitation services. This RTW code stops counting LPDs. This type of RTW is also considered a closure code and a QCM/PRM resolution. No further codes can be entered after this RTW code.
(2) RFP (RTW via Rehab Full Duty/Part Time). Used when the claimant returns to part-time, full-duty work via rehabilitation services. This code starts counting LPDs at a fraction.
(3) RLF (RTW via Rehab Light Duty/Full Time without wage loss). Used when the claimant returns to full-time, light-duty work via rehabilitation services. This code stops counting LPDs.
(4) RLP (RTW via Rehab Light Duty/Part Time). Used when the claimant returns to part-time, light-duty work via rehabilitation services. This code may also be used in cases that already have a PLP code, but only if the work hours actually increase due to intervention by the RC. This code starts counting LPDs at a fraction.
(5) RL$ (RTW via Rehab Light Duty/Full Time with Wage Loss). Used when the claimant returns to full-time, light-duty work with wage loss via rehabilitation services. This code stops counting LPDs.
d. DM RTW Codes without Nurse Intervention or Vocational Rehabilitation. To use these codes, the CE's intervention should be readily identifiable, and these codes should only be used if a FN or RC is not assigned at the time of the RTW.
(1) CFF (RTW via CE DOI or Pre-established LWEC Job). Used when the claimant returns to work at the date of injury or pre-established LWEC position with CE intervention. This RTW code stops counting LPDs. This type of RTW is also considered a closure code and a QCM/PRM resolution if there are prior DM intervention codes. No further codes can be entered after this return to work code.
(2) CFP (RTW via CE Full Duty/ Part Time). Used when the claimant returns to full-duty work on a part-time basis with CE intervention. This code starts counting LPDs at a fraction.
(3) CLF (RTW via CE Light Duty/Full Time without wage loss). Used when the claimant returns to light-duty work on a full-time basis with CE intervention. This code stops counting LPDs.
(4) CLP (RTW via CE Light Duty/Part Time). Used when the claimant returns to part-time work with CE intervention. This code may also be used in cases where a PLP code is already used, but only if the work hours actually increase through the CE's intervention. This code begins counting LPDs at a fraction.
(5) CL$ (RTW via CE Light Duty/Full Time with Wage Loss). Used when the claimant returns to light duty on a full-time basis with wage loss with CE intervention. This code stops counting LPDs.
(6) CPS (RTW via CE in the Private Sector). Used when a claimant returns to work in the private sector with CE intervention. This code stops counting LPDs.
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12. Optional Codes. Optional codes provide a detailed explanation of the progression of a DM case. Optional codes are useful not only to clarify the past management of a case, but to help decide what further actions may be necessary to bring a case to resolution. These codes cannot be entered as a substitute for mandatory intervention codes. Optional codes should be used in conjunction with the mandatory codes to fully document the management of a case. Below is a list of optional codes and an explanation of their use. All of these codes must be manually entered into the DM tracking system.
a. IAE (Interim Actual Earnings). IAE can be entered if the claimant is being paid for a LWEC based upon actual earnings, but a formal decision has not been issued. This code is useful for alerting the CE to review the case for a possible formal decision regarding an LWEC. The effective date of code IAE should be the date the first LWEC payment is certified.
b. JOB (Job Offer Made). JOB can be entered when a job offer is made to the claimant. This code is useful for alerting the CE that a follow-up action may be necessary, such as determining the suitability of the job offer. The effective date of code JOB should be the date that the job is actually offered to the claimant.
c. JOL (Suitable Job Offer Letter Issued). JOL can be entered when the job offer suitability determination is sent to the claimant. The code can be used for both the 30-day letter and the 15-day letter. This code is useful for alerting the CE that a follow-up action is necessary so that a final decision can be reached.
d. JOR (Job Offer Request / Work Restrictions to EA). JOR can be entered when the CE solicits a job offer from the EA. This code is useful for alerting the CE that a follow-up action may be necessary. The effective date of code JOR should be the date that the job offer is actually requested.
e. JOW (Job Offer Withdrawn). JOW can be entered when a job offer is withdrawn from the claimant. This code is useful for alerting the CE that further intervention is necessary. The effective date of code JOW should be the date the job offer was actually withdrawn.
f. MIN (Medical Interruption of DM Activity). MIN can be entered if there is a non-work-related medical condition that is delaying the disability management of a case. This code is useful to document when there are non-work-related medical issues that prevent active intervention in a case, and to alert the CE to frequently review the medical evidence in the case. The effective date of code MIN should be the date the CE determines that disability management must be delayed.
g. MNR (Narrative Report Received). MNR can be entered if a narrative medical report is received from the claimant's attending physician that provides substantial information regarding the claim. Usually, this code should be used when a narrative report is submitted in response to a request from OWCP (after the entry of the QAP code) and the CE has reviewed this medical evidence. The effective date of code MNR should be the date the specific narrative report is received.
h. MSC (Second Opinion Report Received). MSC can be entered when the CE receives a second opinion examination report. It is useful to alert the CE that a follow-up action may be necessary. The effective date of the MSC code should be the date the report is received.
i. MSF (Second Opinion Follow-up Taken). MSF can be entered when the CE follows up with the second opinion examiner after receiving a second opinion examination report. This code is useful for alerting the CE to follow up if the information requested is not received in a timely fashion. The effective date of code MSF should be the date the follow-up action is taken.
j. MRC (Referee Report Received). MRC can be entered when the CE receives a referee examination report. It may be useful to alert the CE that a follow-up action may be necessary. The effective date of the MRC code should be the date the report is received.
k. MRF (Referee Follow-up Taken). MRF can be entered when the CE follows up with the referee examiner after receiving a referee examination report. This code can be used to alert the CE to follow up if the information requested is not received in a timely fashion. The effective date of code MRF should be the date the follow-up action is taken.
l. OPM (Elected OPM benefits). OPM can be entered if the claimant has elected Office of Personnel Management (OPM) benefits. The effective date of code OPM should be the effective date of the OPM election. Note - Code CSB will be needed to actually close out the DM record once appropriate case management actions have been completed.
m. PRL (Pre-reduction notice sent). PRL can be entered when a proposed notice of reduction is sent to the claimant. This code is useful for alerting the CE that a follow-up action is necessary so that a final decision can be reached.
n. PTL (Pre-termination notice sent). PTL can be entered when a proposed notice of termination is sent to the claimant. This code is useful for alerting the CE that a follow-up action is necessary so that a final decision can be reached.
o. SUR (Surgery Authorized). SUR is entered when the claimant has approved surgery. This code is useful for alerting the CE to re-evaluate the disability management options for this case. The effective date of code SUR should be the date the surgery is authorized (since entry of a future date is not allowed). The CE may adjust this date to the date of the actual surgery once the surgery takes place.
p. TTD (Continuing Total Disability per Secop/Referee). TTD can be entered when a second opinion or referee examination report substantiates that the claimant is temporarily totally disabled due to his or her accepted work injury and the condition is not expected to improve within the foreseeable future. This code may not be used if a second opinion or referee specialist has not provided such an opinion, unless the case is catastrophic in nature. This code should be documented with a memo to file.
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13. Closure Codes and Resolutions. Certain DM status codes when entered into DM Tracking serve to close the period of disability being tracked. These closure codes may reflect the claimant's return to full-duty work, a return to modified work with a formal LWEC decision, a termination for no continuing disability or failure to accept suitable employment, a recurrence, or election of other benefits. There should always be documentation in the file to support the closure code used and its effective date.
Some codes are considered successful resolutions for both QCM and PRM, while some outcomes are only considered a resolution for QCM cases and others only a resolution for PRM. Note below where those distinctions have been made, showing whether a particular code is considered a resolution for QCM only, PRM only, or both QCM and PRM. Resolution of DM cases is discussed further in FECA PM 2-0600. Further discussion of PRM resolutions can be found in FECA PM 2-0812.
a. RTW to Date of Injury or Pre-Established LWEC Job. The effective date of the code is the actual RTW date. In order to use these codes, the claimant must actually return to work; a release to return to work without an actual return to work is not sufficient for use of these codes. These closure codes will count as a QCM or PRM resolution, though NFF would be rarely seen in a PRM case.
(1) CFF (RTW via CE DOI or pre-established LWEC Job). Used when the claimant returns to work at the date of injury or pre-established LWEC position without nurse intervention or vocational rehabilitation (services closed when the return to work occurs). Prior CE DM intervention coding is required.
(2) NFF (RTW via Nurse DOI or pre-established LWEC Job). Used when the claimant returns to work at the date of injury or pre-established LWEC position via nurse services.
(3) RFF (RTW via Rehab DOI or pre-established LWEC Job). Used when the claimant returns to work at the date of injury or pre-established LWEC position via rehabilitation services.
b. RTW to a modified or new job with LWEC decision. If the claimant returns to work in less than a full-duty capacity, entry of the RTW code will stop the LPDs from counting (or counting fully in part-time RTW cases) if the return to work occurs within the first year of disability. The record will remain open, however, until an appropriate resolution code is entered. This typically requires issuing a formal LWEC decision. The effective date of these LWEC-related closure codes will be the date of the LWEC decision issued. These closure codes will count as a QCM or PRM resolution.
(1) CAE (RTW, actual Earnings LWEC). This code should be used when the claimant has permanent or stable and well defined work restrictions stemming from the work injury, has returned to a new position or modified version of the date of injury position, and OWCP has issued a formal LWEC decision based on the claimant's actual earnings, with wage loss. While this code is considered a resolution for both QCM and PRM cases, if entered in the QCM period the DM category changes to PRM - LWEC and the case remains active in the PRM universe, since the claimant is still receiving monetary compensation.
(2) CNL (RTW, not DOI job with 0% LWEC Decision). This code should be used when the claimant has permanent or stable and well-defined work restrictions stemming from the work injury, has returned to a new position or modified version of the date of injury position, and OWCP has issued a formal LWEC decision based on no wage loss.
c. RTW to a modified or new job with no LWEC decision possible. This closure/resolution code is only for cases in the QCM universe.
(1) CNC (RTW in non-classified position). This code is used if a formal LWEC decision cannot issued, but the claimant's work restrictions have reached a permanent or stable and well-defined state. This is usually due to the job being a non-classified position or a position that is not permanent in nature. As the effort to obtain a permanent job offer should not be abandoned prematurely, the code should usually not be entered earlier than 2 years from the Track Date unless extenuating circumstances exist. A memorandum to file is required to explain the use of the code for the specific case. The effective date of this code is the date of the memorandum, and it counts as a QCM resolution only. Since entry of this code closes the QCM record, it should not be entered if the claimant has continued wage loss and is receiving benefits on the periodic roll.
If the claimant continues to receive wage-loss compensation on the periodic roll in this situation (e.g. if the claimant is working only part time), a memorandum to the file is still required; however, code CAE should be used (not CNC) so that the case continues to track in the PRM universe since wage-loss compensation is being paid.
d. No actual RTW but medically able to RTW. Compensation entitlement is reduced. This closure code counts as a QCM or PRM resolution.
(1) CLW (Constructed LWEC Decision). This code should be used when the claimant has permanent or stable and well-defined work restrictions stemming from the work injury and has participated in vocational rehabilitation with an unsuccessful placement effort. The claimant is rated based on a position identified by the RC as one that is suitable, readily available, and within the claimant's capabilities. A final reduction decision is issued, reducing the claimant's entitlement with a formal constructed LWEC decision, based on the wages of the selected position identified. This code is considered a resolution in both QCM and PRM cases, but if entered during the QCM period, the DM category changes to PRM - LWEC and the case remains in the PRM universe if the claimant continues to receive wage-loss compensation. The effective date of this code is the date of the final decision.
e. No compensable disability from work. Claimant's entitlement to wage loss and/or medical benefits due to the work injury has been terminated. This closure code counts as a QCM or PRM resolution.
(1) CCO - (Benefits Terminated, no continuing injury-related disability). This code should be used when the claimant's work-related condition no longer prevents him or her from returning to the job held on the date of injury. In some cases, the work-related condition has resolved completely, while in other cases there are still residuals of the work-related condition but those residuals do not prevent the claimant from being able to return to the date of injury job. The claimant has no ongoing entitlement to compensation for wage loss once the medical evidence establishes the ability to perform the duties of the date of injury position. A formal decision denying ongoing disability wage-loss compensation, medical benefits, or both is issued. The effective date will be the date of the final decision.
f. Sanctions. Most sanctions can close a DM record under QCM or PRM and count as a resolution, but the SUE code does not count as resolution in either QCM or PRM.
(1) CFC (Fraud Termination, against OWCP/US Government). This code is used when a formal decision is issued terminating entitlement to compensation because of a fraud conviction. The effective date for this code will be the date of the Section 8148 decision.
(2) CRC (Reduction - Incarcerated due to Felony). This code should be used when a claimant is incarcerated due to a felony conviction that is not related to fraud against OWCP/US Government. Benefits are reduced according to the status of the claimant's dependents. The effective date for this code will be the date compensation is reduced.
(3) CSA (Sanctions for refusing suitable work, Section 8106). This code should be used when a claimant is offered suitable employment within his or her medically-imposed restrictions and refuses the job offer. The claimant has no ongoing entitlement to compensation for continuing disability, since he or she refused a suitable offer of employment commensurate with his or her work capacity. A formal decision is issued and the claimant's entitlement to wage loss and a schedule award is terminated. The effective date will be the date of the final decision.
(4) SUC (Suspension of Compensation for Rehab Non-Cooperation). The effective date for this code will be the date of the decision. The DM record may be reopened later with code SRO.
(5) SUE (Suspension of Compensation for No Report of Earnings/ Dependency - CA-1032). The effective date for this code will be the date of the decision. The DM record may be reopened later with code SRO.
(6) SUM (Suspension of Compensation for Obstruction of Medical Examination). The effective date for this code will be the date of the decision. The DM record may be reopened later with code SRO.
g. Claimant in an approved vocational rehabilitation training program.
(1) RHT (In Approved OWCP Vocational Training). This code populates in DM Tracking when the RS enters code T into NRTS. Because a vocational rehabilitation training program can last for several months, but is intended to result in a return to work, this code does count as a QCM resolution if present at the 30-month mark. It does not, however, count as a PRM resolution.
h. Claimant Unable to Work or No Change in Benefit Level. There are instances when it is determined that the claimant is unable to work due to the severity of the injury.
(1) CPN (Permanent Total Disability Determination). This code should be used when the claimant is found to have no wage-earning capacity or re-employment potential for the indefinite future and the case is placed in a PN status. A memorandum to the file is required to document the reason(s) for this determination, and the memorandum must document concurrence from a Supervisory Claims Examiner. See FECA PM 2-0812. Since this is not a successful QCM resolution, this should only be used for the most serious injuries while the disability case is still within the first 30 months. The effective date for this code will be the date of the PN memo. Entry of CPN in a QCM record changes the category to PRM-PN. This code does not count as a resolution for either QCM or PRM.
(2) PCR (No entitlement change following PR review). This code should be used when the factual and medical evidence in the file clearly reflect that the current benefit level is appropriate. The file must be documented with a memorandum to the file. See FECA PM 2-0812 for a sample of this memorandum. If a PN recommendation occurs simultaneously with the use of the PCR code, the same memorandum can be used for both purposes. This code is only applicable for cases in the PRM universe and can only be used once every five years.
i. Recurrence of Disability. If the claimant sustains a recurrence of total disability, new injury, or increase in disability following a return to light duty, this new work stoppage should be reflected in the DM record. If the recurrent disability is due to the same injury, a new DM record should be created in that case after the current record is closed. If the recurrent disability is due to a new injury, then the current DM record should be closed and a new DM record should be opened under the new injury case file.
(1) CRN (Recurrence/New Injury Following RTW Light Duty). This code should be used when the claimant sustains a recurrence or a new injury during the QCM period. In addition to new work stoppages due to the injury, any increase in disability from work may lead to a CRN code, such as when the claimant decreases his or her working hours from eight to four. CRN should not be used in a PRM case; CRL is the recurrence code for PRM cases (see below).
Note - Timely identification of a work stoppage or an increase in disability is essential. DM Tracking does not allow this information to be entered at a later date, especially if the claimant has already returned to work since the increase in disability. When coding DM with a code CRN, it is also important to properly notify the SN and FN if nurse intervention is still active. The new work stoppage and DM record will re-set the clock and allow the FN a new intervention time frame.
Cases closed with this code will be considered resolved successfully only if an earlier RTW occurred due to QCM intervention (as shown by status codes CLP, CL$, CLF, NLP, NL$, NLF, RLP, RL$, or RLF). If the prior RTW was a PLP, PL$, or PLF, the DM Tracking System will code the DM record RMV and remove the case from the QCM universe when the CRN code is entered.
(2) CRL (Recurrence, LWEC Modification - TTD). This code should be used when a recurrence occurs or a formal LWEC decision is modified to accept temporary total disability. PRM disability management is considered complete, but the system will initiate a request to create a new DM record to track the new period of total disability as a QCM case. This code is used only in PRM cases, but it does not count as a resolution.
j. Election of Benefits or Compensation No Longer Claimed. The DM record may also be closed when the claimant elects to receive benefits from the Office of Personnel Management (OPM) in lieu of OWCP benefits, elects increased disability benefits from the Department of Veterans' Affairs (DVA) in lieu of FECA benefits, or when the claimant has not claimed compensation.
(1) CSB (Compensation Not Claimed). This code is used in conjunction with the OPM code when a claimant elects OPM benefits. This code is also appropriate when a claimant has elected to receive increased VA disability benefits in lieu of FECA benefits. In situations other than an OPM or VA election, there should be a memorandum to the file to explain the use of this code. This code will count as a resolution for both QCM and PRM.
k. Death of the Claimant.
(1) DEA (Death of Claimant). This code is used whenever a claimant who has an active DM record dies. The effective date of the code is the date of death. This code will close a QCM or PRM case, but it does not count as a resolution in either instance.
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14. Obsolete Codes. Some DM codes have become obsolete and are no longer used; therefore, when reviewing previous coding in a DM record, some codes (and descriptions) may appear that are no longer available for use.
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Back to Chapter 2-0800 Table of Contents
1. Purpose and Scope. This chapter describes the fundamentals of claims development. Along with FECA PM 2-0801 through 2-0805, it covers the factors which all claims have in common. Initial acceptances are covered in FECA PM 2-0806 and formal denials are covered in FECA PM 2-1400. Additional material about death claims is covered in FECA PM 2-0700. The development of special act claims, in which entitlement is based on legislation extending FECA benefits to such groups as Peace Corps and VISTA volunteers, is described in FECA PM 2-1700.
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2. Types of Claims. When a claim is submitted, it is classified based on the type of injury and the nature of injury. See Nature of Injury codes. (Exhibit 1)
a. Traumatic Injury (TI) -- a wound or other condition of the body caused by external force, including stress or strain. The injury must be identifiable as to time and place of occurrence and member or function of the body affected. It must be caused by a specific event or incident or series of events or incidents during a single day or work shift. 20 CFR 10.5 (ee).
The following are examples of a traumatic injury: dog bite, knee strain after a trip and fall, neck strain after an auto accident, or a broken ankle after a slip on ice.
b. Occupational Disease (OD) -- a condition which is produced by continued or repeated exposure to elements of the work environment such as noxious substances or damaging noise levels over a period longer than one work day or shift. OD claims are classified as either basic or extended. 20 CFR 10.5(q).
(1) Basic OD -- Most claims for skin, orthopedic, viral, infectious, and parasitic diseases can be adjudicated with an initial request for information and perhaps a follow-up query for clarification. Some will clearly address all five basic requirements and may be adjudicated if all necessary evidence is in file. These cases are considered basic OD claims.
The following situations illustrate the kinds of cases which may be considered basic OD:
(a) A claim for poison ivy where the claimant's employment involves exposure to the plant, and the medical evidence confirms the diagnosis.
(b) A claim for a stress fracture of the foot from a letter carrier who walks a route, where the medical evidence confirms the diagnosis and relates it to extensive walking.
(c) A claim for carpal tunnel syndrome from a postal letter-sorting machine operator where medical tests establish the diagnosis.
(2) Extended OD -- Most other types of OD claims require full-scale development because the nature of exposure is in question, the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not obvious.
The following situations illustrate the kinds of cases which may be considered extended OD:
(a) Hearing loss due to continuous noise exposure.
(b) Asbestos-related illnesses.
(c) Stress-related conditions (cardiac, emotional, gastrointestinal).
(d) Other conditions, such as pulmonary conditions, gastrointestinal illnesses due to physical causes, certain types of loss of vision, dental conditions, cancers, nerve (neurological) injuries and tumors.
c. Death -- Death claims are discussed in FECA PM 2-0700.
d. Administrative Review (AR) -- an uncontroverted traumatic injury claim in which medical bills are not expected to exceed $1500 and a wage loss claim has not been filed. These cases are automatically closed upon case creation, without Claims Examiner (CE) review.
AR cases can be reopened automatically or manually. Such reopened cases will usually contain some medical evidence and may be adjudicated immediately. Extent and duration of injury-related disability do not have to be fully developed before adjudication. However, if one or more of the five basic requirements (timeliness, civil employee, fact of injury, performance of duty, causal relationship) is not met, the CE will proceed with development as with any other TI case. See 2-0800-4.
(1) Automatic Reopening. AR cases will be automatically reopened if the medical bills exceed $1500, a wage loss or recurrence claim is received, the "controverted indicator" in the case record is changed to "Y" due to receipt of a late agency controversion, or the COP nurse has closed the case without a return to full time employment by the claimant.
(2) Manual Reopening. AR cases may also be reopened manually. The case should be reopened when, for example, a request for surgery is received.
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3. Forms Used for Initial Claims.
a. In injury cases, the appropriate forms are:
(1) Form CA-1, Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation.
(2) Form CA-2, Notice of Occupational Disease and Claim for Compensation.
(3) Form CA-7, Claim for Compensation on Account of Traumatic Injury or Occupational Disease, may be submitted in conjunction with the CA-1 or CA-2.
b. In death cases, the appropriate forms are:
(1) Form CA-5, Claim for Compensation by Widow, Widower, and/or Children.
(2) Form CA-5b, Claim for Compensation by Parents, Brothers, Sisters, Grandparents, or Grandchildren.
(3) Form CA-6, Official Superior's Report of Employee's Death.
Death claims are discussed in FECA PM 2-0700.
c. Completion of Forms. It is essential that Form CA-1 or CA-2 be completed by both the claimant and the employing agency.
(1) Incomplete form. If enough information is provided on the CA-1 or CA-2 to permit creation of the case, OWCP should do so and obtain the missing information from the appropriate party.
However, if not enough information is provided on the CA-1 or CA-2 to allow creation of the claim (see FECA PM 1-0400), OWCP should return the form for completion.
(a) Employing Agency Known. When a CA-1 or CA-2 is received directly from the claimant, OWCP should send a copy to the employing agency with a request for completion of the reverse side of the form.
(b) Employing Agency Unknown. When a CA-1 or CA-2 is received directly from the claimant and the employing agency is not known or it cannot be determined from the information provided, OWCP should return the form to the claimant with instructions to forward the form to the employing agency for completion.
(2) Incorrect form. While submission of an incorrect form is a technical error, it is improper to deny a case on the basis that the claimant failed to submit the correct form. In some cases, the claimant may have been provided that form by the employing agency. Proper handling of the incorrect form depends on whether OWCP can determine the actual benefits claimed.
(a) If, upon review of the incorrect form, the actual benefits claimed by the claimant can be determined, OWCP should convert the claim to the correct type and notify the claimant and employing agency (and any representative, if applicable) via letter that the claim has been converted to a different type of injury than what was originally claimed and explain the reasons for the conversion.
Example: The claimant files Form CA-2, Notice of Occupational Disease and Claim for Compensation, and OWCP creates an occupational disease claim. However, based upon the statements contained on the Notice of Occupational Disease as well as the medical evidence submitted, the claimant is describing a traumatic injury rather than an occupational disease claim. In such an instance, the Office can convert the claim from an occupational disease claim to a traumatic injury claim. The claimant and employing agency (and any representative, if applicable) should be notified via letter that the claim is now a traumatic injury, and the reasons for the conversion should be explained. If the claim was filed within 30 days of the injury date, the claimant should also be notified of the entitlement to Continuation of Pay (COP).
(b) If the actual benefits claimed by the claimant cannot be determined from review of the form, OWCP should develop the claim based upon the claim form filed and direct questions to the claimant to determine the type of benefits claimed. Based upon the response to the development letter, OWCP should make a determination as to whether the correct claim was established and, if not, OWCP should convert the claim to the proper type of claim and notify the claimant and employing agency (and any representative, if applicable) of the conversion.
Example: The claimant files a CA-1, Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, and OWCP creates a traumatic injury claim. However, upon review of the CA-1, the CE determines that the statements made on the claim form are so vague that it cannot be determined whether the claim is for a traumatic injury claim or occupational disease claim. The CE issues a development letter to the claimant requesting a statement on the nature of the injury. Based upon the response to the development letter, the CE determines that the claimant is not describing a traumatic injury but an occupational disease claim. OWCP will convert the claim to an occupational disease claim and notify the claimant and employing agency (and any representative, if applicable). In this particular circumstance, it is important that the CE also address the claimant's entitlement to COP.
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4. Responsibilities.
a. Claimant. A person claiming compensation must submit sufficient evidence and demonstrate cause for OWCP to proceed with processing and adjudicating a claim. It is the claimant's responsibility to establish the five basic requirements of a claim, which is known as the "burden of proof." OWCP has the obligation to aid in this process by giving detailed instructions for developing the required evidence. The claimant must submit the essential evidence that demonstrates entitlement to compensation. The five basic requirements of a claim, which must be considered in the order given, are as follows:
(1) Statutory Time Requirements Have Been Satisfied. Compliance with this requirement is demonstrated when the notice of injury, disease, or death shows that prompt notice and claim were given and filed. The claimant has no particular responsibility unless the claim is not filed within three years after the injury. See FECA PM 2-0801.
(2) The Injured or Deceased Individual Was a Federal Civilian Employee or considered an employee for purposes of FECA. Compliance with this requirement is usually a routine matter which is demonstrated by inspection of the notice or claim. The claimant has the burden, however, when the employer is not an agency of the United States or the Federal agency denies the employment status of the injured or deceased. See FECA PM 2-0802.
(3) The Occurrence, or "Fact" of Injury (FOI). Once the first two elements are established, it must be determined whether an injury occurred. See FECA PM 2-0803. This element of the claim consists of two components, which must be considered together:
(a) Whether the claimant actually experienced the accident, untoward event, or employment factors alleged to have occurred. This is a factual determination. The claimant must show that the accident or work exposure that is claimed did in fact occur at the time and place and in the manner alleged.
In occupational disease cases in which the claim is not based upon a specific incident, the claimant must submit sufficient evidence to identify fully the particular work conditions alleged to have caused the disease and substantiate exposure to the conditions claimed.
(b) Whether a medical condition has been diagnosed in connection with this event or employment factor. To make this determination, medical evidence is required. However, there are a few instances when a claim may be accepted without a medical report. See paragraph 6 in this chapter.
(4) The Injury Occurred in the Performance of Duty (POD). The claimant must show not only that an injury occurred but that he or she was performing official duties (or an activity incidental to employment) at the time of injury. The injury must arise out of and in the course of employment. See 5 U.S.C. 8102; FECA PM 2-0804.
(5) The Disability (or Death) Was Caused by the Injury Claimed (CR). The claimant must show that the injury was causally related to the event or employment factors. This requirement is satisfied on the basis of medical evidence, which is usually supplied by the attending physician. See FECA PM 2-0805.
b. Employing Agency. Although the employing agency is not formally a party to the claim, the agency bears a responsibility to assist in developing the claim. The FECA requires the employing agency to report to OWCP any injury resulting in death or probable work-related disability and to submit any further information requested by OWCP. 20 CFR 10.118. As evidence appearing in the employer's files is not generally available to claimants, the employing agency must assemble and submit such evidence.
(1) In addition to supplying evidence on its own behalf, the agency is expected, wherever possible, to aid the claimant in assembling and submitting evidence. In cases in which OWCP receives the claim long after the employee has left the agency's employment rolls, a claimant may need to assist OWCP in identifying any potential sources of evidence.
(2) Additional evidence from other sources may be needed where the agency's confirmation of the claimant's allegations is not sufficient to establish the claim, or where the official superior or injury compensation specialist disagrees with the claimant's allegations, has no knowledge of the facts concerning the allegations, or is unable to furnish sufficient details.
(3) Since OD claims generally require more detailed evidence, a supervisor or injury compensation specialist can, when issuing Form CA-2 to the claimant, also provide the claimant with a checklist showing the type of evidence which should be submitted. The checklists can be found in the CA-810 publication, Injury Compensation for Federal Employees, which is available on the Department of Labor's website. Conditions covered include: hearing loss, asbestos-related illness, coronary/vascular disease, skin diseases, pulmonary conditions (other than asbestos), psychiatric conditions, and carpal tunnel syndrome.
c. OWCP. In administering the FECA, OWCP must attempt to obtain any evidence which is necessary for the adjudication of the case which is not received when the notice or claim is submitted. To adjudicate claims promptly and manage them effectively, the CE should choose the most efficient, direct, and proactive approach, given the individual circumstances of a claim and the nature of injury.
OWCP is responsible for the following:
(1) Providing Information. The CE must provide information about the procedures involved in establishing a claim, including instructions for developing the required evidence, to the claimant, the employing agency, and the representative, if any.
(2) Requesting Evidence. Upon initial examination of the case, if it is determined that the evidence is not sufficient to establish the essential elements of the claim (timeliness, civil employee, fact of injury, performance of duty, causal relationship), the CE should inform the claimant of the additional evidence needed. The CE should attempt to clarify any discrepancies which exist based on information already in the file at the time of development. The claimant will be allowed at least 30 days to submit the evidence required. OWCP is not required to notify the claimant a second time if the evidence submitted in response to its first request is not sufficient to meet the burden of proof. 20 CFR 10.121.
(3) Identifying Potential Third Party Cases. The CE should be alert for situations where a party other than another Federal employee or agency may be responsible for the injury (see FECA PM 2-1100). The claimant should be notified promptly of his or her obligation to pursue the responsible third party and to refund the government under 5 U.S.C. 8131 and 8132 so that attempts at recovery may begin before the applicable state statute of limitations expires.
(4) Making Prompt Decisions. It is OWCP's obligation to render a decision on each case as promptly as possible. Prompt action is particularly important in those disability cases where the injured employee is losing pay. The Office must notify both the claimant and the employing agency (and any representative, if applicable) of its decision in all cases, other than those that were administratively reviewed and have not reopened. If the case is accepted, OWCP should also respond to any agency challenges or controversions to COP.
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5. General Development. This section provides general information for developing claims. The following sections will address the initial development of a claim for factual evidence and medical evidence. Claims that require extended development are discussed in paragraph 9 of this chapter.
a. Evidence. Decisions on claims are based on the written record, which may include forms, reports, letters, and other evidence of various types such as photographs, videotapes or drawings.
Evidence may not be incorporated by reference, nor may evidence from another claimant's case file be used. Evidence contained in another of the claimant's case files may be used, but a copy of that evidence should be placed into the case file being adjudicated. All evidence that forms the basis of a decision must be in that claimant's case record.
b. Developing the Case. Development is usually undertaken in writing. Communication by fax may be used when an expeditious reply is required. A phone call can be made where the request involves answers to specific and simple questions, such as verifying that an inoculation resulting in an adverse reaction was performed by the employer. Evidence obtained by telephone must be carefully documented in writing (on Form CA-110) and depending on the complexity of the information obtained, written confirmation should be requested from the source. In developing a case, the CE should:
(1) Identify and request all information that will be required to adjudicate the claim for all conditions claimed.
(2) Acknowledge receipt of any Form CA-7 which has been submitted and indicate that the CA-7 will be reviewed when the case is adjudicated. This can be done in the development letter.
(3) Attempt to secure evidence in the custody of a Federal agency, as it is more readily available to OWCP than to the claimant. An example of this is exposure data of a historical nature such as in an asbestos case.
(4) Avoid requesting evidence which is already contained in the file or for which no need is anticipated. Such requests place an unwarranted burden on the individual or entity asked to submit the information and result in a duplication of documents in the case file.
(5) To the extent possible, the same CE should handle all claims involving the same part of the body for a given claimant. If another claim already exists for an injury to the same body part, the CE should generally double the case files. See FECA PM 2-0400.
c. Requesting Information. The CE should contact the claimant in writing to obtain information or clarification wherever possible. At times the CE may contact the claimant via telephone if only basic information is needed. This is discussed further in paragraph 7 of this chapter.
Correspondence Library has development letters which may be used when making initial requests for information from the claimant and the agency. When composing the letter, the CE should state what evidence is already in the case record and why it is not sufficient to make a decision. The CE should specifically request only the information necessary to adjudicate the case at hand. Any letter used should be tailored to the specifics of the individual case.
Where the claimant's statement is essential to understanding the basis of the claim (e.g., in emotional stress cases), the CE should wait until the claimant's statement has been received before sending the letter to the agency.
d. Lack of Response. The CE must allow at least 30 days for a response to all initial development letters prior to denying a claim. 20 CFR 10.121. If information is requested of the employing agency, a reasonable period of time should be allowed for the agency's response.
(1) If an employing agency fails to respond to a request for comments on the claimant's allegations, the CE may usually accept the claimant's statements as factual. However, acceptance of the claimant's statements as factual is not automatic in the absence of a reply from the agency, especially in instances where performance of duty is questionable. The Employees' Compensation Appeals Board has consistently held that allegations unsupported by probative evidence are not established. James E. Norris, 52 ECAB 93 (1999), Michael Ewanichak, 48 ECAB 354 (1997). The CE should consider the totality of the evidence and evaluate any inconsistencies prior to making a determination.
(2) If the claimant fails to respond, the CE will need to decide whether to adjudicate the claim without the requested information. Often the CE can continue to develop a claim and reach conclusions on the five basic requirements even when some evidence is lacking.
For example, if the CE asks the claimant to submit medical records for a prior hospitalization or operation, but the claimant does not do so, the CE may still be able to adjudicate the case without them. While records of past medical treatment are helpful, their absence may not necessarily prohibit further development of the claim or a decision on causal relationship. If the missing records are essential, the claim may be denied and the decision should explain why causal relationship cannot be accepted without the missing medical records.
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6. No Development Necessary - Visible Injury. When the following criteria are satisfied, a case may be accepted without a medical report and no development of the case need be undertaken:
a. The condition reported is a minor one which can be identified on visual inspection by a lay person (e.g., burn, laceration, insect sting or animal bite);
b. The injury was witnessed or reported promptly, and no dispute exists as to the occurrence of an injury; and
c. No time was lost from work due to disability.
In cases where there is a serious injury (motor vehicle accidents, stabbings, shootings, etc.), the agency does not dispute the facts of the case, and there are no questionable circumstances, the case may be accepted for a minor condition (such as a laceration in a stabbing case) without a medical report, while simultaneously developing the case for other more serious conditions. This is true even if there is lost time due to such a serious injury. In these cases, once a Field Nurse is assigned (see FECA PM 2-0811), he or she can assist with obtaining the necessary evidence. Sound judgment should be employed in these serious cases to provide appropriate and immediate medical care for the injured worker since expeditious treatment for these injuries is critical.
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7. Development of Factual Evidence. The purpose of this paragraph is to identify the kinds of factual evidence needed in traumatic injury and occupational illness cases, and how to obtain this evidence. Before making any inquiries, the CE should carefully review all material in the case record, both to identify evidence needed for adjudication and to avoid requesting evidence already provided or not needed.
a. Sources of Factual Evidence. The type of evidence necessary to adjudicate a claim will determine how the CE obtains the evidence and from whom he or she will request information.
(1) Claimant. In disability cases, the claimant is the injured employee, while in death cases the claimant is the dependent seeking benefits. Whenever there is a factual discrepancy in a case, the claimant should be contacted to clarify the facts of the case. Depending on the facts of the case, it may be necessary to forward the claimant's statement to the employing agency for comment.
(2) Employing Agency. The employing agency is required to complete the reports and statements needed and then submit the evidence to the OWCP. In several types of claims (e.g. stress claims, claims with POD issues such as premises, temporary duty travel, or recreational injuries), a statement from the employing agency is imperative to properly develop and adjudicate the claim.
(3) Witnesses. Statements from witnesses are not required to adjudicate a claim; a claim may be approved in the absence of witness statements. They are very useful, however, when the employing agency is unable to confirm or refute the claimant's allegations. Such statements may be obtained by the claimant or the employing agency.
(4) Other Sources. In most cases, the required evidence will be available from one of the sources noted above. In certain cases, however, the CE will need to request evidence from other sources. This will vary by case and circumstance.
b. Factual Discrepancies.
(1) Nature of Claim. If doubt exists, the claimant should be asked to clarify what condition is being claimed, or whether the claimed condition is due to an occupational disease, a traumatic injury, or a recurrence. Any discrepancies found must be clarified by obtaining the necessary factual evidence before the claim can be properly adjudicated.
(2) Description of Job Duties. This will almost always be required to adjudicate an occupational disease claim, and occasionally will be required for a traumatic injury, especially if it is not clear what the claimant's occupation entails.
(a) The employing agency should be asked to provide a position description, including physical requirements, and clarification of job duties.
(b) The claimant should usually be asked to describe the physical and environmental requirements of the job, and the supervisor or injury compensation specialist should review that statement and provide comments if there is any disagreement.
(c) Where the position description accurately describes the factors claimed as the basis of a medical condition in a claim for occupational disease, it is not always necessary to request a detailed statement from the claimant describing these factors. For example: where aggravation of degenerative disc disease due to repeated heavy lifting is claimed, and the position description states that frequent lifting over 50 pounds is required, it can be accepted that the claimant often lifted heavy objects. If an employee claims a reaction to breathing paint fumes, and the position description states that he or she works with paint in poorly ventilated areas, this can usually be accepted as factual.
(3) Employment History. This information is primarily required for occupational disease claims. The employing agency is often the best source for a chronological history of employment because of the recordkeeping involved in a personnel office. The claimant should also be asked to submit this information, especially for jobs held prior to employment with the employment agency.
(4) Exposure to and Identification of Substances. The employing agency is usually the best source for this data. However, if the agent to which the claimant was exposed was clearly encountered in the work place, it is preferable but not always necessary to identify the specific agent. For example, if the case involves a respiratory condition clearly related to exposure to fumes at work, or dermatitis from contact with a cleaning solvent used at work, the agent need not necessarily be specified.
(5) Content of Substances. If the employing agency is unable to identify the contents of the substance, the manufacturer will likely be the best source for obtaining that information. If such exposure is claimed, the CE should consider whether potential third-party liability exists. If so, the case must be processed according to FECA PM 2-1100.
(6) Personal History. The claimant is the best source for information concerning off-the-job exposure to potentially injurious conditions or substances. However, medical reports containing history elicited by physicians who have examined the claimant sometimes include useful factual information. For example, personal or family history may appear in a claim for a psychiatric or heart condition. The CE should ask the claimant to verify any facts obtained from a medical report.
(7) Various Performance of Duty (POD) Scenarios. In traumatic injury claims, a variety of POD issues may present themselves. These include injuries sustained off premises; injuries sustained while the employee is on TDY status; recreational injuries; and injuries sustained in parking lots/garages. In these instances, the CE should obtain a statement directly from the claimant identifying the circumstances surrounding the injury. The CE should also obtain a statement from the employing agency concerning whether the injury was sustained in the performance of duty. See PM 2-0804 for a complete discussion of POD.
(8) Affirmative Defense. The FECA states than an injury caused by the claimant's intoxication, willful misconduct, or intent to injure self or another is not compensable. These factors are described and their development discussed in FECA PM 2-0804, Performance of Duty. The claimant enjoys an affirmative defense against any finding that one of these factors applies to a claim, and OWCP must overcome such a defense. These factors must be considered and developed prior to the initial adjudication of the claim, since an affirmative defense cannot be raised for the first time on appeal. Adverse decisions of this type should be made at an adjudicative level above that of the CE. See FECA PM 2-0804.
c. Obtaining Information by Telephone. Use of the telephone is encouraged to obtain information when appropriate. If the claimant has difficulty with written communication, the CE should contact the claimant by telephone. In other instances, especially if the CE lacks just one or two pieces of information to take an action, it may be expedient to contact the claimant by phone and document the case file. The CE should complete a comprehensive and informative Form CA-110 for the case record as soon as possible.
However, where there are disputes in the factual evidence, the case should be considered for conferencing.
d. Conferencing. The CE may use conferencing as a method to obtain necessary data or to clarify significant disputes or discrepancies in the case record prior to adjudication. Procedures for conferencing are fully described in FECA PM 2-0500. The CE should consider conferencing in situations where:
(1) Conflicting evidence exists on an issue important to the adjudication of the case, and the CE has not been able to resolve the issue.
(2) The employing agency has challenged the claim on the issue of fact of injury or performance of duty.
(3) The evidence clearly shows the claimant cannot communicate effectively in writing.
(4) The agency challenges the claimant's allegations and provides conflicting factual evidence.
(5) The agency has not responded to a written request, or its response requires clarification.
e. Phrasing Questions. The way a question is asked can affect the amount and quality of information which will be received. Broadly speaking, development questions can be asked in three ways:
(1) Open Questions. These are phrased so that minimal information is presented in the question and allows the respondent to provide all the specific details about the particular issue at hand.
Example 1: How were you harassed on February 3, 2011? What happened that day? Provide details including names and titles of any witnesses or participants as well as what they said and what occurred.
Example 2: You indicated that you suffered an injury at work on February 4, 2011. How did the injury occur? What type of injury did you sustain?
(2) Direct Questions. These require either yes/no answers or very short responses.
Example: You indicated on Form CA-1 that you tripped while delivering the mail, injuring your foot. What part of the foot did you injure? Describe precisely how you injured your foot - Did you twist it? Turn it? Did you get an x-ray of your foot following the injury?
(3) Leading Questions. These are phrased to suggest what the answer should be.
Example: Your supervisor indicates that you were not scheduled to work on February 7, 2011 and therefore counseling did not occur on this date. Is this correct?
Although leading questions can be helpful when trying to solicit specific factual information from the claimant or employing agency, particularly if the respondent if unwilling or unable to respond to open or direct questions, they should be used only as a last resort.
Note - Leading questions may never be used in the context of a referral to an impartial medical specialist.
(4) Combined Questions. Open questions are best used when little information about a given matter is available. The drawback to this type of question is that while a great deal of information may be received, it may not adequately address the issue if the question is not specific enough. Therefore, it is best to follow an open question with a direct question, since it requires more specificity.
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8. Development of Medical Evidence. The purpose of this paragraph is to identify the kind of medical evidence needed in traumatic injury and occupational illness cases, and how to obtain this evidence. Before making any inquiries, the CE should carefully review all material in the case record, both to identify evidence needed for adjudication and to avoid requesting evidence already provided or not needed.
a. Medical Sources. These sources include reports of physicians and hospitals providing examination or treatment to the claimant either before or after the injury. The claimant is responsible for obtaining the necessary medical evidence; however, the CE may also obtain medical evidence from a physician who examined the claimant through direct referral or authorization by OWCP (for example, a second opinion medical referral).
The CE should direct the employing agency to submit all medical documentation related to the claim which is in its possession, including documentation of any treatment the claimant received at the employing agency's medical facility or health unit.
Medical records may also be requested directly from the claimant or the attending physician. If necessary, the CE should send the claimant an authorization for release of records (Form CA-57) to sign and return. The CE may also authorize diagnostic tests for the part of the body that has been injured if he or she determines the results of such testing would be useful.
b. Initial Review and Development of Medical Evidence.
(1) Upon initial review of a new claim for injury, the CE should evaluate any medical evidence which has been received in the case record. For most conditions, the attending physician's opinion may be considered conclusive for adjudicating the claim if he or she is a specialist in the indicated field of medicine; has a complete and accurate history of the employment factors; and provides sufficiently detailed information, including the medical reasoning required to determine diagnosis and causal relationship.
There are some circumstances in which medical evidence is not required to adjudicate a claim or where a rationalized medical opinion is not required. This is addressed in FECA PM 2-0805. See also the discussion of Visible Injuries in paragraph 6 of this chapter.
(2) If after initial review, the medical evidence is not sufficient to accept the claim (or no medical evidence has been received), the CE should request the medical evidence necessary to support the claim. The request should be tailored to the specifics of the case, but should note that the medical evidence must be obtained from a physician, as defined by the FECA. The letter must also inform the claimant that he or she has 30 days to submit the requested evidence. In general, medical reports must provide a history of injury or work factors; a diagnosis; objective findings supporting the diagnosis; and a rationalized medical opinion on the issue of causal relationship.
In most cases, the CE should request that the claimant obtain the medical evidence from the physician as part of the initial development letter. If the CE writes directly to the attending physician to obtain this information, the letter should contain a clause addressed to the claimant which clearly informs him or her that although the letter is written directly to the physician, it is still the claimant's responsibility to ensure that the requested information is provided within the time allotted.
(3) Following the issuance of the initial development letter, the CE should review any new medical evidence submitted. If no medical evidence has been submitted or the medical documentation does not contain prima facie medical evidence (see paragraph below), the claim may be adjudicated based on the evidence of record without further development. The CE should ensure that all medical evidence in the case record is considered at the time of adjudication and that the claimant has been provided at least 30 days to submit the medical evidence requested.
For OWCP to undertake additional medical development, the claimant must establish a prima facie case by submitting medical evidence from a physician which, at the least, states a diagnosis and clearly supports causal relationship. However, in some cases, the medical opinion need not be fully rationalized in order for the CE to undertake further development. For example, the attending physician may provide a diagnosis and an opinion which is not well-reasoned but nonetheless supports causal relationship. In such cases, further clarification is needed to establish the case, and the medical development should be undertaken by the CE.
c. Request for Additional Medical Evidence. If further development of the medical evidence is required, the CE must undertake such development prior to rendering a decision. Further medical opinion may be requested from attending physicians, second opinion specialists, and referee specialists. The roles of these physicians and the weighing of medical evidence are addressed in FECA PM 2-0810.
(1) Requests to the Attending Physician. Unless the medical history of the case demonstrates that an inquiry to the attending physician will not be productive, it is usually proper to write to the attending physician at least once to obtain the missing information before arranging a second opinion referral. The attending physician should be given the opportunity to bill OWCP for a comprehensive report.
The CE should send the claimant a copy of this and all other letters to the attending physician and advise the claimant that even though OWCP is attempting to obtain the evidence needed to adjudicate the claim, it remains the claimant's responsibility to ensure that the required evidence is submitted.
When sending the letter to the Attending Physician, the CE must be sure to:
(a) Provide a factual background and pose specific questions;
(b) Advise the physician that OWCP will pay for a comprehensive report;
(c) Notify the claimant that the requested medical opinion is necessary to further develop the claim; and
(d) Advise the claimant that he or she is responsible for ensuring that the physician submits the report within the time allotted.
(2) If the CE determines that questioning the attending physician further would not be productive, a referral to a second opinion specialist may be warranted. If there is a conflict in the medical evidence between the attending physician and the second opinion specialist and the evidence is of equal but opposing value, a referral to a referee physician may be needed. The procedures for referring cases to second opinion and referee specialists are addressed in FECA PM 3-0400.
(3) Statement of Accepted Facts (SOAF). A SOAF is often necessary when requesting such medical evidence from the attending physician and required when referring the claimant to a second opinion or referee in this circumstance. Refer to FECA PM 2-0809 for instructions on preparation of a SOAF.
(4) Questions to Physicians. Questions to a physician should address all unresolved medical issues. The CE should not request medical evidence from the physician which he or she has provided already. When preparing questions for a physician, the CE should:
(a) Include questions about the history of injury, diagnosis, examination or diagnostic findings, causal relationship (with medical reasoning), and nature and extent of injury-related disability for regular and light duty.
With respect to the issue of causal relationship, it may be useful to provide the physician with OWCP's definitions of direct causation, aggravation, etc. See FECA PM 2-0805.
(b) Clarify a potential aggravation. If there is a question of whether the diagnosis was a pre-existing condition which was aggravated by the work injury/factors, the CE should ask the physician to clarify this.
Example: "You have opined that the claimant's right knee arthritis is related to the duties of handling luggage as a baggage screener over the last two years. Please clarify whether the right knee arthritis was directly caused by the work factors identified or if this diagnosis was a pre-existing condition which was aggravated by the work factors claimed."
The physician should also be asked to clarify whether an aggravation of a pre-existing condition is permanent or temporary, and if only temporary, when the condition is expected to return to baseline (pre-injury) status.
With respect to injury-related disability, the CE should be particularly careful to clarify its extent and duration in cases involving aggravation of an underlying condition.
(5) Phrasing Questions. The way a question is asked can affect the amount and quality of information which will be received. Questions can be asked in three ways: Open Questions, Direct Questions and Leading Questions. These types of questions are defined in paragraph 7(e) above and examples of each follow.
(a) Open Question Examples: What is the history of injury as provided by the claimant? What is the diagnosis? What are the objective exam findings/diagnostic findings? Please provide a well-explained opinion on whether the condition was caused or aggravated by the work injury on 04/10/2010.
(b) Direct Question Example: You have opined that the claimant's pre-existing right knee arthritis was aggravated by the work injury on 04/20/2010. Please explain whether this is a permanent aggravation or a temporary aggravation. If temporary, when did the aggravation cease, or when do you expect the aggravation to resolve?
(c) Leading Question Example: Given that the claimant has only been on the job carrying mail for three days, isn't it more likely that his condition of plantar fibrosis is the result of non-work related factors?
Note - The CE should avoid leading questions when requesting evidence from a physician, especially if the question is phrased in such a way as to elicit a response which would invalidate the claim, and leading questions may never be used in the context of a referral to an impartial medical specialist. Stanislaw M. Lech, 35 ECAB 857 (1984) (ECAB found "Give date when aggravated disability ceased" to be leading).
(d) Combined Questions Example: You have indicated that the claimant tripped over a log and has "abnormal findings about the right ankle." What is the diagnosis? What are the "abnormal" exam findings/diagnostic findings? Was the diagnosed condition caused by the trip and fall? Please provide medical reasoning in support of your opinion.
d. Lack of Response. When a CE requests an opinion from the attending physician but receives no reply within a specified period of time, the claim may be adjudicated based on the evidence on file without further development if the CE has:
(1) Provided a factual background and posed specific questions to the attending physician;
(2) Advised the physician that OWCP will pay for a comprehensive report;
(3) Notified the claimant that the requested medical opinion is necessary to further develop the claim; and
(4) Advised the claimant that he or she is responsible for ensuring that the physician submits the report within the time allotted.
e. Medical inquires by telephone. The telephone may be used to schedule examinations, request reports, and address other administrative matters. However, long-standing ECAB precedent provides that oral statements of doctors to OWCP personnel do not constitute competent medical evidence (see John M. Fuller, 9 ECAB 320).
In addition, OWCP examiners may not communicate orally with a referee medical specialist with regard to the examination details or information contained within the report. Such communication must be made in writing. See FECA PM 3-0500. OWCP may communicate with a referee specialist's office for administrative matters such as scheduling an examination or requesting a report.
As with any other telephone call requiring documentation, OWCP personnel should complete a comprehensive and informative Form CA-110 for the case record.
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9. Extended Development. Some initial claims require full-scale medical development because the nature of exposure is in question, the diagnosis is not clearly identified, or the relationship of the condition to the exposure is not obvious.
a. Requirements for development and documentation of certain types of conditions.
(1) Hearing loss and asbestosis claims. OWCP should refer the claimant for examination by a qualified specialist if the report submitted by the claimant does not meet all of OWCP's requirements for adjudication (see FECA PM 3-0600).
(2) Cardiac and psychiatric conditions. If the medical evidence submitted by the claimant clearly addresses the necessary requirements and the physician is of the appropriate specialty, the CE should prepare a memo to file stating where in the medical reports of record the questions have been answered. After completing the memo, the CE may adjudicate the claim.
If the report submitted by the claimant does not meet all of OWCP's requirements for adjudication but establishes a prima facie case, the CE should prepare a detailed SOAF and questions for the physician. The CE then can write directly to the attending physician (if of the appropriate specialty) as outlined in paragraph 8(c) of this chapter or refer the claimant for examination by a qualified specialist.
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10. Obtaining Evidence from Employing Agencies. OWCP will attempt to obtain evidence in possession of another Federal agency. Following is a description of the procedures which should be used with respect to requests for information from employing agencies.
a. Factual Evidence. If the agency has factual evidence which is necessary to make a decision in the claim, the CE should make a written request with a copy to the claimant, indicating a time period within which the agency should reply. The agency should be advised that if it fails to provide the requested information, a decision will be made on the basis of available evidence and that the claimant's statements, if sufficiently clear and detailed, may be accepted on matters of which the claimant is knowledgeable.
b. Medical Evidence. If it appears that the agency has medical records in its possession pertaining to the injury or to any relevant pre-existing condition, the CE should ask the agency to submit copies of such records if they are not sent with the original submission.
c. Transferred Employees. When a Federal employee transfers from one agency to another, the employee's Official Personnel Folder (OPF) and Employee Medical Folder (EMF) should be sent to the new agency. If the OWCP requires information from the OPF or EMF after the employee has transferred from the agency where the injury occurred, the original employing agency may be unable to supply it. The CE should request the information from the current employing agency.
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11. Withdrawal of Claim. A claimant or survivor may submit a written request to withdraw his or her claim prior to the adjudication of the claim. This includes claims for traumatic injury, occupational disease, and survivor benefits. It also applies to administrative review cases that have not been formally adjudicated. Although a claimant or survivor may withdraw a claim, the notice of injury itself cannot be withdrawn. [See FECA Regulations, 20 C.F.R. 10.100(b)(3), 10.101(a), and 10.105(a)].
a. Upon receipt of a written request from the claimant or survivor, the CE must take the following actions:
(1) In any compensation case where a written notice of intent to withdraw a claim is received from the claimant or survivor prior to the adjudication of the claim, the CE must advise the claimant or survivor in writing that the claim is now considered withdrawn.
(2) The case file will then be coded as withdrawn and the imaged copy retained by the Office. The CE should code the claim as follows:
Adjudication Status: SU
Case Status: CL
(3) No ICD-9 code can (or should) be entered.
(4) In traumatic injury cases, determine if COP was paid. Any COP that was paid will be charged to either sick or annual leave or become an overpayment with the employing agency.
b. Employing agencies are not permitted to compel any employee or survivor to withdraw a claim. Upon notification of a credible allegation that the employing agency improperly compelled the claimant or survivor to withdraw a claim, the District Director or other designated individual, should immediately contact the employing agency by telephone or written correspondence to discuss the matter and to prevent any future occurrences. The telephone conversation must be documented on Form CA-110 and the form imaged in the case record.
c. A claim may be reinstated if there is evidence that a claimant or survivor may have been compelled by the employing agency to withdraw his or her claim. If the claim is reinstated, the claimant or survivor should be notified in writing that the claim is now considered reinstated.
d. If a request is received to reopen a withdrawn claim, a new case number should be assigned. The CE should use the information from the previously withdrawn claim to develop any issues (e.g., performance of duty) in the new case.
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12. Group Injuries. When possible, where two or more employees are injured in the same incident, such as an explosion or auto accident, or by the same substance, such as contaminated drinking water, the entire group of cases should be adjudicated by the same CE in order to ensure uniformity of action.
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Exhibit 1: Nature of Injury Codes |
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(T) |
Traumatic Injuries |
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TA |
Amputation |
TB |
Back strain |
TC |
Contusion; bruise; abrasion |
TD |
Dislocation |
TE |
Exposure (including frostbite, heat stroke/exhaustion) |
TF |
Fracture |
TG |
Effects of Electrical Current |
TH |
Hernia (inguinal) |
TJ |
Crush injury |
TK |
Concussion |
TL |
Laceration; cut |
TN |
Superficial Wounds |
TO |
Pain, Swelling, Redness, Stiffness (not in joint) |
TP |
Puncture (not insect bite) |
TS |
Strain (not back) |
TT |
Tooth injury |
TU |
Burn, scald, sunburn |
TV |
Foreign body in eye |
TY |
Insect bite |
TI |
Traumatic skin diseases/conditions, including dermatitis |
TR |
Traumatic respiratory disease |
TQ |
Traumatic food poisoning |
TW |
Traumatic tuberculosis |
TX |
Traumatic virological/infective/parasitic diseases |
TY |
Insect Bite |
TZ |
Pain, Swelling, Redness, Stiffness (in joint) |
T1 |
Traumatic cerebral vascular condition; stroke |
T2 |
Traumatic hearing loss |
T3 |
Traumatic heart condition |
T4 |
Traumatic mental disorder; stress; nervous condition |
T5 |
Headaches |
T6 |
Death sudden/Violent |
T7 |
General Symptoms |
T8 |
Traumatic injury - unclass. (except disease, illness) |
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(G) |
Gastrointestinal |
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|
GD |
Diarrhea |
GH |
Hiatal, umbilical or ventral hernia |
GO |
Hernia, Other |
GP |
Abdominal Pain |
GU |
Ulcer |
G9 |
Gastrointestinal, not otherwise classified |
TQ |
Gastrointestinal Conditions |
|
|
(S) |
Skin Disease or Condition |
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|
SB |
Biological (including poison ivy, poison oak) |
SC |
Chemical |
SL |
Skin lesion (including blister, bunion, callus and corn) |
S9 |
Dermatitis, not otherwise classified |
|
|
(M) |
Musculoskeletal and Connective Tissue |
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|
MA |
Arthritis |
MB |
Back or neck strain, sprain |
MC |
Carpal Tunnel Syndrome |
MD |
Degenerative Disc Disease; spondylosis; spondylitis |
MI |
Inflammatory Disease (including bursitis, tendinitis) |
MK |
Chondromalacia |
MP |
Pain/Swelling/Stiffness/Redness (in Joint) |
MS |
Pain/Swelling/Stiffness/Redness (not in Joint) |
M9 |
Musculoskeletal condition, not otherwise classified |
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|
(R) |
Respiratory Disease |
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|
RA |
Asbestosis |
RB |
Bronchitis, asthma |
RC |
Asthma |
RE |
Emphysema |
RP |
Pneumoconiosis (Black Lung) |
RR |
Reaction to smoke, fumes, chemicals |
RS |
Silicosis |
R9 |
Respiratory disease, not otherwise classified |
TR |
Respiratory Conditons |
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|
(V) |
Virological, Infective and Parasitic Diseases |
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|
VA |
Acquired Immune Deficiency Syndrome (AIDS) and HIV |
VB |
Brucellosis |
VC |
Valley Fever (Coccidioidomycosis) |
VD |
Anthrax |
VF |
Rabies |
VH |
Hepatitis |
VL |
Lyme Disease |
VM |
Malaria |
VP |
Parasitic Diseases |
VR |
Rocky Mountain Spotted Fever |
VS |
Staphylococcus |
VT |
Tuberculosis |
V9 |
Virological/Infective/Parasitic, not otherwise classified |
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|
(C) |
Cardiovascular/Circulatory |
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|
CA |
Angina |
CB |
Blood Disorder |
CH |
Hypertension |
CM |
Myocardial Infarction (Heart Attack) |
CP |
Phlebitis; varicose veins |
CS |
Stroke; cerebral vascular condition |
C9 |
Cardiovascular/circulatory, not otherwise classified |
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|
(O) |
Occupational disease, non-complex |
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|
OF |
Food poisoning |
OG |
Tooth and gum-related problems |
OL |
Inguinal Hernia |
OP |
Pregnancy (Peace Corps only) |
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|
(D) |
Other Disability, Occupational |
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|
DA |
Headaches |
DB |
Seizures/Convulsions |
DC |
Coma |
DF |
General Symptoms: Syncope, Dizziness, Vertigo, Fatigue |
DH |
Hearing loss |
DI |
Vision/sight loss |
DM |
Mental disorder; emotional condition; nervous condition |
DN |
Nerve injury, incl. paralysis, after exposure to toxins |
DR |
Radiation |
DT |
Tumors and other cancer-related conditions |
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Chapter 2-0806, Initial Acceptances |
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1. Purpose and Scope. This chapter contains procedures for the initial acceptance of claims. It supplements information about developing claims (FECA PM 2-0800), the five basic requirements of a claim (FECA PM 2-0801 through 2-0805), weighing medical evidence (FECA PM 2-0810), and disability management (FECA PM 2-0600). Also, see FECA PM 2-1400 for a detailed discussion of disallowances.
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2. Accepting the Claim. In adjudicating the case, the CE must review and evaluate all material submitted to determine whether the case meets the five basic requirements for a claim under the FECA (timeliness, civil employee, fact of injury, performance of duty, causal relationship). If the evidence is sufficient to establish that the five basic requirements have been met, the CE should take the following actions:
a. Determine what diagnosis or diagnoses to accept based on the medical documentation of record, and identify the corresponding International Classification of Diseases (ICD) codes.
(1) The CE should accept each diagnosis that is causally related to the work injury, regardless of severity or impact on disability. Cases with multiple medical conditions are further addressed in paragraph 4 of this chapter.
(2) If the medical evidence establishes that a pre-existing condition was aggravated, an aggravation should be accepted, not the underlying condition itself.
b. In traumatic injury cases, determine if Continuation of Pay (COP) is payable. If COP has been claimed but is not payable, the CE should release a formal decision with appeal rights denying COP. In occupational disease cases, and in those cases where the claimant is not entitled to COP but has lost wages as identified by the receipt of Form CA-7, the CE should determine if compensation is payable in accordance with timely payment procedures. See FECA PM 2-0807 for further discussion of COP and PM 2-0901 for further discussion of initial payment of compensation.
c. Enter the accepted condition(s) (i.e., ICD-9 code(s)) and the correct case status and adjudication status codes into the Integrated Federal Employees' Compensation System (iFECS). See FECA PM 2-0401 for details about case status and adjudication status codes.
d. Advise the claimant by letter of the condition(s) accepted. A letter should be issued in all formally adjudicated and accepted cases, without exception. The letter should include the date of injury, name of the employer, accepted work-related condition(s), information regarding entitlement to COP (if applicable), and instructions for filing a wage-loss claim (if applicable). A copy of the letter should be sent to the employing agency, and to the claimant's representative, if applicable.
e. If the employing agency has challenged the claim and/or controverted COP, and such challenge or controversion is not upheld, the CE must acknowledge and respond to the challenge either in the acceptance letter or by separate correspondence. Responding to challenges is further discussed in paragraph 7 of this chapter.
f. Review the case to determine if the potential for third party liability exists. If third party potential exists, the CE should initiate third party subrogation procedures in accordance with FECA PM 2-1100.
g. Review the case to determine if Disability Management actions are needed. See paragraph 3 of this chapter.
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3. Disability Management Upon Acceptance. At the time the claim is accepted, the CE should ascertain the claimant's current work status if it is not clear in the file.
If the claimant is losing time from work, the CE should initiate disability management actions in accordance with FECA PM 2-0600. If the claimant is working in a limited duty capacity without wage loss because of the accepted work injury, disability management actions may also begin.
If upon acceptance, it is clear that disability management is needed because the claimant has not returned to work, the CE should advise the claimant in the acceptance letter that OWCP is evaluating the case to determine what steps are necessary to facilitate medical recovery and sustainable return to work; such notice will prepare the claimant for the upcoming disability intervention actions.
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4. Multiple Medical Conditions. In many cases, the claimant will claim multiple conditions on the CA-1 or CA-2. The CE should ensure that all claimed conditions are addressed at the time of initial adjudication. The action taken by the CE will depend on whether each claimed condition has been properly developed.
a. If all claimed conditions have been developed, and the evidence of record supports acceptance of some but not all of the conditions claimed, the CE should issue an acceptance letter for the compensable conditions and issue a formal decision with appeal rights denying the remaining claimed conditions. Like any other formal denial, this decision must make findings of fact and include appeal rights.
b. If multiple conditions have been claimed, the evidence submitted supports acceptance of some but not all of the conditions, and the remaining conditions have not been developed, the CE should issue an acceptance letter for the compensable conditions and concurrently issue a development letter for the remaining claimed conditions. The development may be undertaken in either the acceptance letter itself or by separate correspondence.
c. In some instances, the claimant may claim only one medical condition, while the medical evidence indicates that multiple diagnosed conditions are work-related. The CE should accept each diagnosis related to the work injury, regardless of severity or impact on disability. For example, a claimant slips and falls on ice in the course of employment, and a left hip contusion and left knee medial meniscus tear are diagnosed by a physician in the emergency room. Even if the left knee condition becomes the predominant cause for disability and need for further treatment, the CE should also accept the left hip contusion, assuming the five basic requirements are met.
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5. Resolved Conditions. In some instances the medical evidence will support that a condition being accepted at the time of adjudication has already resolved. In these situations, a determination regarding ongoing entitlement may be addressed in the acceptance letter. This is particularly important if there is evidence of ongoing treatment for another non-work related, but similar, condition.
In this instance, the CE cannot state that the work-related condition has resolved and close the case without providing the claimant the opportunity to exercise appeal rights. For this reason, the CE must cite the evidence that demonstrates the condition has resolved in the acceptance letter, attach a copy of the medical evidence to the acceptance letter, and include appeal rights. For medical bill processing purposes, the case should first be adjudicated for the acceptance with appropriate case status and adjudication codes, before updating iFECS with the final coding of C3/D5.
Where multiple conditions have been accepted, the medical evidence may support that one or more condition has resolved while residuals are ongoing for remaining accepted conditions. Such cases should be open for benefits related to the ongoing accepted conditions while finding no further entitlement for those conditions which have resolved.
The following sample language may be used when an accepted condition has clearly resolved: Your claim has been accepted for a cervical strain, resolved by April 1, 2011. In a report dated April 1, 2011, your treating physician stated that your examination resulted in normal findings and the cervical strain had completely resolved. A copy of this April 1, 2011 report is enclosed. Therefore, no further benefits for a cervical strain will be covered after the date of this letter. If you disagree, please refer to the attached appeal rights.
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6. Accepting and Simultaneously Closing a Case. The Office should administratively close a case at the time of adjudication if the treating physician has released the claimant from care and/or advised the claimant to return only on an as-needed, or "prn," basis. This often occurs with minor conditions such as sprains/strains and contusions.
The CE should properly notify the claimant in the acceptance letter that the case has been closed. Appeal rights need not be attached, as such a closure is not a termination of benefits and would still allow the claimant to pursue reopening his or her claim (e.g. by filing Form CA-2a, Notice of Recurrence). For medical bill processing purposes, the case should first be adjudicated with appropriate case status and adjudication status codes and saved before updating the final coding to C5/AM.
Sample language: On April 16, 2011, your physician released you from care to return on an as-needed (prn) basis. Therefore, your case has been administratively closed with no need for further medical care anticipated. This will allow authorized medical bills submitted for payment to be processed for a period of 120 days from the date of this letter. Form CA-2a, Notice of Recurrence, may be filed in the event further medical care is needed.
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7. Addressing Employing Agency Challenges/Controversions. A controversion is an employing agency's dispute, challenge, or denial of the validity of a claim for COP. An employing agency may controvert COP based on one of nine statutory exclusions (see FECA PM 2-0807) or challenge the claim as a whole based on other objections associated with the five basic requirements for FECA coverage. The term "controversion" applies specifically to the issue of COP. The agency may pay COP but challenge the claim itself; controvert COP (based on a statutory exclusion) but not challenge the claim; or controvert COP and challenge the claim.
The CE must be mindful of the nature, strength and logic of the employing agency's objection and thoroughly develop the controversion or challenge if necessary. A controversion or challenge can be addressed in the development letter or acceptance letter with a copy to the employing agency or in a separate narrative letter to the agency.
The CE must provide a response to the employing agency's challenge or controversion if the claim is accepted and COP is approved. This would also include situations where no specific reason or argument is provided by the agency in support of its objection. The CE should provide such notification within the body of the acceptance letter or by separate letter. In some instances it will be more appropriate to notify the agency by separate letter or by using Form Letter CA-1038; however, notification should be provided at the time of acceptance. The CE should sufficiently explain the basis for approving COP or the claim by specifically referencing each challenge and explaining how the evidence of record was used to support the acceptance of the case. The facts or dates of medical reports which led to the determination should be clearly stated.
Sample language to Employing Agency addressing a challenge of a claim: It is noted that you challenged this claim due to a lack of medical evidence establishing causal relationship. The evidence, however, supports that this employee is a Federal employee who sustained a traumatic injury in the performance of duty; therefore, the case has been accepted. Even though you indicated that there was a lack of medical evidence, we have received a report from Dr. John Smith dated March 31, 2011 supporting causal relationship in this case. The injury was clearly established (the claimant fell on ice) and the attending physician diagnosed a right knee meniscus tear as a result of the injury.
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8. Aggravation of a Medical Condition. A claimant may sustain an aggravation of a pre-existing condition due to an injury arising in the course of employment. This could result from a traumatic event or exposure to hazardous conditions.
In determining whether a pre-existing medical condition has been aggravated by an injury or by job duties, causal relationship can only be established by medical evidence. Where medical evidence establishes that a pre-existing condition was aggravated, an aggravation should be accepted, not the underlying condition. The CE should accept either a temporary or permanent aggravation, depending on the medical evidence of record. A permanent aggravation should only be accepted after careful evaluation of the weight of the medical evidence of record, as discussed in FECA PM 2-0805.
A CE can neither diagnose nor medically determine the extent and duration of an aggravation or any disability associated with the aggravation. This determination must be made based on the medical evidence. The extent and duration of work-related aggravation is one of the critical areas that should always be developed when an aggravation is diagnosed.
The CE should define in the acceptance letter exactly what type of aggravation is being accepted, whether temporary or permanent. If the accepted aggravation has ceased, the acceptance letter should state the date that the accepted aggravation is considered to have ended by citing the specific medical evidence used to make that determination. The CE should also consider whether the case is in posture for termination of ongoing benefits at the time of acceptance, in which case appeal rights must be attached (see paragraph 5 of the chapter). If it remains unclear whether the temporary aggravation has resolved, the CE should include questions to the attending physician (or write to the physician directly) at the time of acceptance in order to develop when the temporary aggravation is expected to subside or return to baseline, or pre-injury, status.
If the aggravation is temporary and leaves no permanent residuals, the claimant is entitled to compensation only for the period of disability related to the aggravation. This is true even when the claimant is found medically disqualified to continue in his or her regular job because of the effect which the employment factors might have on the pre-existing condition. When the claimant's inability to continue working is due to the underlying condition, without any contribution from the employment, compensation is no longer payable.
The Employees' Compensation Appeals Board (ECAB) has held that where an employee claims an aggravation of a preexisting condition, the employee must provide a rationalized medical opinion discussing the nature of the condition, including its natural or traditional course, and how the underlying condition was affected by the employment. See Newton Ky Chung (39 ECAB 919___ (1988) and Raquel Navedo-Cruz, Docket No. 96-1558; Issued May 1, 1998).
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9. Risk of Future Exposure. Generally speaking, a wage-loss claim due to the risk of future exposure or prevention of future injury (prophylactic measures) is not compensable.
When an employee cannot work due to risk of future exposure, the CE must determine whether the susceptibility is due to the employee's exposure on the job site, or if it pre-existed such exposure. Such disability is compensable only if it is due to exposure on the job.
As ECAB held in Dennis L. O'Neill (29 ECAB 151) and clarified in James L. Hearn (29 ECAB 278), when an employee has suffered a work-related injury which results in permanent residuals, disability for work may result when additional exposure to the implicated employment conditions would further endanger the employee's health, although the residuals of the injury alone might not be disabling.
For instance, since exposure to asbestos dust generally results in permanent and irreversible changes in the pulmonary system, medical evidence may state that continued employment in a certain job or work environment is contraindicated due to the dangers of continued exposure. If the employing agency cannot provide employment in an environment that conforms to the medically allowed level, the claimant will be entitled to compensation. If the impairment is sufficient to disable the individual for his or her customary employment, the CE should refer the claimant for vocational rehabilitation services.
On the other hand, if employment factors aggravate a pre-existing condition, the claimant is entitled only to compensation for the period of disability related to the aggravation, if the aggravation is temporary and leaves no permanent residuals. This is true even if the claimant is found medically disqualified to continue in his or her regular job because of the effect which the employment factors might have on the pre-existing condition. The claimant's inability to continue working is due to the underlying condition, without any contribution from the employment, and therefore compensation is not payable.
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Chapter 2-0811, Nurse Case Management |
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1. Purpose and Scope. This chapter discusses the early intervention phase of disability management claims. The focus is primarily on the necessity and appropriateness of nursing intervention and techniques for the management of disability claims at the earliest possible point to facilitate return to work. It outlines the different roles and types of nurses, provides guidance to the Claims Examiner (CE) regarding how and when nursing intervention should be undertaken, and discusses the necessary components of successful claims management during this phase.
See FECA Procedure Manual (PM) chapter 2-0600 for a complete overview of the Disability Management process.
See also FECA 3-0201 and 3-0202 for more detailed information on the management of contract nurses.
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2. Introduction. The Office of Workers' Compensation Programs (OWCP) is committed to seeing that benefits for compensation and medical services are appropriate and provided timely. OWCP is also committed to assisting injured workers in returning to work as soon as possible in order to minimize the period of disability. Benefits should not continue after the effects of the work-related condition have ceased.
Management of disability claims begins as soon as a new claim is received indicating that the claimant has lost time from work as a result of the injury or is disabled from his or her date of injury position. The CE assists the claimant in returning to work as soon as possible; however, the return-to-work effort consists of more than just CE intervention. The best outcomes stem from an active team approach where OWCP, the employing agency (EA), the claimant, and the medical providers use all available tools to facilitate medical recovery and a sustainable return to work.
Nurse intervention is an integral part of the overall disability management of a claim, with a registered nurse providing liaison services to assist in medical and claims management with a return-to-work focus. However, even when a nurse has been assigned to a case, the CE remains responsible for the management and overall direction of the case.
The CE uses the Disability Management (DM) Tracking system in iFECS to record actions taken during disability management, including those taken with regard to the assigned nurse. Additionally, the interaction between the DM Tracking system and the Nurse/Rehabilitation Tracking System (NRTS) provides the ability to effectively track and manage a disability claim from assignment to closure. PM Chapter 2-0601 discusses the DM Tracking system in detail.
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3. Types of Nurses. The OWCP has contracted with registered nurses who have case management experience to provide intervention at the earliest stages of disability management. A Staff Nurse assigned to each district office is responsible for oversight of the contracted nurses.
a. Staff Nurse. As part of the oversight process, the Staff Nurse (SN) should see there is a sufficient number contract nurses to service the district office's needs. The SN assigns contact nurses to specific cases; monitors contract nurses' performance in correlation to both the contract specifications and the quality of services provided; reviews nurse reports for completeness and timeliness prior to authorizing payment of bills; and communicates with the CE as needed with regard to issues that arise during the nurse intervention phase.
b. Continuation of Pay (COP) Nurses. COP Nurses (CN) are registered nurses assigned in traumatic injury cases where the injured worker has immediate time loss and has not returned to work within seven (7) days following the date of work stoppage. The CN is strictly a triage nurse and all work is performed telephonically. The CN contacts the employee, the EA and the treating physician. Within seven (7) days of the case assignment, the CN initiates contact with all three to obtain the necessary information and then closes the case. The CN closure report should contain the return-to-work status and provide a recommendation regarding early intervention and assignment to a field nurse.
c. Field Nurses. The Field Nurse (FN) is a registered nurse who assists in the management of disability claims in a number of ways. The FN assists in coordinating medical care during the recovery period and helps to facilitate a safe and timely return to work. The FN also acts as liaison between the CE, claimant, EA, and medical providers. The FN's contact is generally in person; however, in some instances the activity may be only telephonic in nature.
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4. The COP Nurse (CN). Although nurse intervention is not extensive during the COP period, the medical knowledge and experience of a CN enables the CE to identify cases that require more extensive intervention due to the severity of the injury, contemplated surgical intervention, or lost time from work.
a. CN Assignment. Based on the data entered when a traumatic injury case is created (specifically, the date work was stopped), a case becomes automatically eligible for a CN assignment if the claimant does not return to work within 7 days of the date the claimant stopped work. This assignment occurs even if the case has not yet been formally accepted. If the EA reports a return to work prior to CN assignment, a CN should not be assigned. CN assignments are done electronically through iFECS, and necessary information is accessed by the CN via remote access to iFECS.
Note - As COP is not payable in occupational disease cases, CN assignments are not made in those cases.
b. CN Actions. Upon receipt of the assignment, the CN should make a three-point contact in order to effectively triage the case, and then report these findings via a COP Nurse Report to the SN and CE.
(1) Claimant - The CN should make initial contact with the claimant and obtain details concerning the injury. The CN should also determine whether the claimant has a treating physician, and, if so, contact information should be obtained.
(2) Employing Agency (EA) - The CN should contact the EA to confirm the claimant's work status and determine whether appropriate work accommodations are going to be available during recovery. The CN can also discuss with the EA the possibility of a future FN assignment in a particular case.
(3) Attending Physician - The CN should contact the physician's office to obtain information concerning treatment and the date of the claimant's next appointment. The CN can also advise whether work accommodations can be made at the agency, if known, and provide general information about the FECA program.
Once information has been obtained from the claimant, EA and attending physician, the CN provides that information, via a written report, to the SN and CE. Any other relevant information pertaining to possible issues for a foreseeable recovery or return-to-work barriers should also be included. The CN should also make a specific recommendation pertaining to whether a FN assignment would be beneficial.
c. CN Timeframes. The CN should obtain the necessary information, as outlined above, and submit a closure report within 7 days of assignment. There is a limited amount of flexibility with this 7-day timeframe. If the CN has determined that the claimant will be returning to work within the following week, and the specific contact information supporting a definitive return-to-work date has been obtained, the CN case can be held open beyond the 7-day window to verify and report the return to work. CN closure, even with this kind of limited extension, should occur no later than 14 days after assignment.
d. Once the CN Closure Report is received, the SN reviews it and submits the bill for payment. At that point, the COP Nurse Report will be viewable by the CE, who can use the information provided to determine the next appropriate step for the case. The closure type and date will also be visible to the EA in the Agency Query System (AQS) at that time.
If the CN closes the case and the claimant has not returned to work in a full-time capacity, the CE should review the case for adjudication. The CE can also use the information obtained by the CN to expedite adjudication or guide the next intervention action. The CE should also review the case for appropriateness of assignment to an FN, as a case may be assigned to an FN even if the COP period has not yet expired. A FN may also be assigned if the claimant has returned to work full time, but in only a limited duty capacity.
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5. The Field Nurse (FN). A FN is assigned when work-related disability has been identified. Unlike CN assignments, the CE must initiate a referral to a FN. A FN's contact is generally in person; however, in some instances the activity may be only telephonic in nature (e.g. in an instance where there is no contract nurse in the vicinity of the claimant's locale). Whether the nurse's contacts during these kinds of assignments are in the field or only telephonic in nature, they are all called FNs. The FN's responsibilities include, but are not limited to, the following:
a. Developing a rapport with the claimant and answering questions about what to expect from OWCP, while at the same time clearly establishing the return-to-work goal for the claimant from the outset.
b. Making determinations about the initial extent of the injury, treatment necessary for recovery, and return-to-work expectations (using the CN's report, if available, as part of this process).
c. Attending the claimant's medical appointments to facilitate communication about return to work and ease any authorization difficulties the claimant may be encountering.
d. Obtaining functional capacities, restrictions and limitations from the physician as early as possible, and then providing these to the EA and exploring job modification options.
e. Identifying possible barriers to the claimant's return to work and then developing a plan of action with the CE to resolve the identified barriers.
f. Continual evaluation of the likelihood of return to work with the EA and physician, with the goal of following the plan through to successful full duty return to work and closure.
g. Communicating regularly with the medical providers, claimant, EA, SN and CE to keep all parties informed of the status of the case to facilitate a timely, sustainable return to work.
h. Making recommendations for vocational rehabilitation when necessary.
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6. When a Field Nurse is Needed. The need for a FN can occur in many different situations. Some of the most common situations in which referral for FN services is needed are: coordinating medical care, obtaining work limitations, assisting the CE in resolving medical issues, visiting the work site and ensuring that duties of the position do not exceed the medical limitations as represented by the weight of medical evidence established by OWCP, and addressing any problems the employee may have in adjusting to the work setting.
a. Nurse services are a valuable tool for assisting claimants in returning to work and assisting CEs in moving a case towards resolution. Early referral for nurse intervention services is critical to successful disability management.
b. Nurse intervention should begin as soon as possible after the injury occurs in accepted cases if the claimant has not returned to work, even if the Continuation of Pay (COP) period has not yet expired. The referral for FN services may also be made if the claimant has returned to work but is disabled from performing his or her date of injury position.
c. The need for a nurse referral, in general, can be established with any situation where the claimant is not working his/her full regular duty. The following is a breakdown of some scenarios that illustrate when a case may be considered for referral for nurse intervention services:
(1) The claimant is temporarily totally disabled (TTD);
(2) The claimant is working full time but with restrictions, and a return to less restrictive work, a full-duty release, or establishing permanent restrictions is being pursued;
(3) The claimant is working less than full time with or without restrictions, and an increase in work hours, a return to less restrictive work, a full-duty release, or establishing permanent restrictions is being pursued;
(4) Work tolerance limitations have been obtained, but outstanding medical issues hinder or preclude a return to work. The FN can assist with the outstanding medical issue (e.g. pain management, medication, treatment plan, specialist consultations, etc.);
(5) Surgery is authorized and monitoring medical recovery and coordinating post operative care is needed;
(6) The return to work date stated does not coincide with the severity of the original injury;
(7) The return to work date is extended without clear and valid medical reasons;
(8) The claimant is partially disabled but the file contains no description of work limitations;
(9) The claimant has sustained a catastrophic injury and coordination of medical care is needed; or
(10) The claimant stops work (sustains a recurrence) after an initial return to work effort.
d. Referral for nurse intervention services can also be taken for specific task-related actions later in the life of a case, even after a prior nurse closure has occurred. These are generally shorter assignments based on a specific task. Some examples of these instances are:
(1) The claimant's work tolerance limitations are in question, and the CE determines that with the assistance of a FN, clarification of the claimant's work capabilities can be obtained;
(2) When questions arise regarding the claimant's current medical status, the FN can meet with the attending physician to obtain a medical opinion on a pending medical issue, assist with obtaining medical records, etc.; or
(3) A FN would be beneficial to assist the CE and/or claimant with the coordination of medical care due to the severity or complexity of the claimant's medical condition.
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7. Field Nurse Referral. Once a CE has decided to refer a case for nurse intervention, the CE should complete a nurse referral.
a. The nurse referral should provide specific information for the SN to utilize in making the referral to the FN, such as: the claimant's name, address, phone number; the EA name, address, contact person, if known (most likely the EA Injury Compensation Specialist), and phone number; whether there is a an attorney or representative authorized in the case; the accepted conditions and ICD-9 codes; the claimant's date of injury and date of birth; the claimant's current work status; the responsible CE's name; and the recognized attending physician's contact information, including name and phone number.
b. The completed nurse referral should also note the goals of the intervention and the issues which the FN should address with the physician (e.g., obtaining a description of work limitations or treatment plan) and any pending adjudicatory actions (e.g., an imminent second opinion referral). The referral should be specific to the circumstances of the case.
c. Along with the referral, the FN should be provided a copy of the pertinent medical records from the file, which may also include a copy of a current Statement of Accepted Facts (SOAF), if available.
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8. Field Nurse Assignment. If the claimant has not returned to regular full duty and the case has been accepted, a FN can be assigned.
a. FN assignments should usually be made with the expectation of in-person contact by the FN, since the FN may more easily assess the claimant's environment and job situation in a personal visit. An assignment may be limited to telephonic intervention, though, in uncomplicated cases, or in instances where there is no contract nurse available in the claimant's locale. If the assignment is to be only telephonic in nature, the SN should clearly indicate this in the referral documentation, but there are no differences with regard to the timeframes.
b. Within one week of receipt of the file the FN should:
(1) Contact the injured worker for initial assessment;
(2) Contact the attending physician for a treatment plan, projected return-to-work date, and completion of an OWCP-5 (or equivalent). In addition, the attending physician should be notified that light duty may be available when the injured worker is able to return to some form of work;
(3) Contact the EA regarding availability of light duty and return-to-work options; and
(4) Contact the CE and provide a synopsis of medical issues, current work status, and estimated dates for return-to-work at light or regular duty.
If the FN is unable to meet this one-week timeframe (e.g. the treating physician cannot be available for 2 weeks), notification should be made to the SN and CE.
c. After the initial status report from the FN, if necessary, the CE should direct the FN with regard to what course of action to pursue. This type of direction should continue throughout nurse intervention depending on the information provided by the FN.
d. Within one month of assignment, the FN should obtain a position description for the date of injury (DOI) job, which includes the actual physical requirements. If the claimant has been working a light duty job since the injury occurred, the FN should also obtain this documentation for the light duty job. The FN should also have a face-to-face meeting and job-site walk through (when possible) with the EA to assess potential job modification possibilities.
e. The FN should submit medical evidence as soon as it is received and contact the CE to report the following:
(1) Changes in the claimant's medical condition (e.g., newly diagnosed conditions whether work-related or not, requests for surgery, etc.).
(2) Claim expansion (e.g. the attending physician may request an expansion of the work-related conditions in the case to include a diagnosis that better matches the claimant's work-related condition).
(3) If the EA states it will not make light duty work available, or if the EA withdraws light duty work.
(4) Report of a new injury, whether sustained at work or not.
(5) Return-to-work status or changes in work status (e.g. full-time to part-time or change in hours worked). This requires immediate notification.
(6) Release to return to work (with follow-up verification of actual the return-to-work date).
(7) Any event that significantly impacts a claimant's ability to return to work or seek treatment (e.g. the death of a family member, personnel issues, etc.).
(8) The need for a second opinion examination.
(9) Claimant's willingness or unwillingness to cooperate with the treatment recommendations of his/her physician and the return-to-work effort.
f. The FN should submit a monthly written progress report that includes:
(1) Current Work Status. This includes the number of hours (if working), the effective return-to-work date, and type of work, with EA confirmation; or the projected return-to-work date (if not working).
(2) Claimant Contact. This includes a synopsis of the information obtained and an assessment of the home environment and family structure, as well as the date/type of the contacts. Information pertaining to the home environment will usually only be documented in the initial assessment report and need only be referenced in subsequent reports if the FN determines that such issues present an ongoing barrier to rehab/recovery. Also, depending on the nature of the case, assessment of the home environment may not be necessary.
(3) Physician Contact. This includes the date of medical visits; physician requests (surgical approval, physical therapy, etc.), and detailed requests made by the FN to the physician based on the treatment plan.
(4) EA Contact. This includes the job site evaluation performed and date, as well as the name of contact person with whom job accommodations were discussed.
(5) Planned Actions and Comments. This includes specific actions the FN plans to take during the next reporting period, e.g. the next physician appointment, possible increase in work hours, job site walk through, etc.
(6) Barriers or Issues. This includes any barriers to medical recovery or the return-to-work effort. This may also include issues that the FN requires CE direction on before moving forward. While these issues should be communicated prior to the monthly report if significant, the CE should always review this section of the report carefully to determine whether intervention is needed.
g. The FN should submit a closure report when directed by the CE or SN to close the case. When a case is scheduled for closure of nursing services, the FN should inform the injured worker, physician, and EA of the closure.
h. Non-cooperation. Sometimes a claimant may not wish to cooperate with the nurse intervention program. If this occurs, the CE should obtain specific details regarding the situation. While OWCP cannot issue any type of sanction specifically for non-cooperation with the FN, the CE should take appropriate follow-up action to address the situation if it is hindering recovery and return-to-work. Several options are available, but each case must be assessed individually.
(1) If work tolerance limitations are already on file, the CE can refer the case for vocational rehabilitation services.
(2) The CE may wish to hold a conference with the claimant and FN to explain the purpose of the nurse intervention program and the advantages for the claimant.
(3) If the FN can still be productive without direct contact with the claimant, the FN may remain assigned to the case and complete further tasks as directed by the CE.
(4) In other instances, it may be best to close the case for nurse intervention while the CE medically manages the case and possibly refers the case for vocational rehabilitation services at a later date.
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9. Communication. Returning injured employees to work and minimizing the effects of a work injury are goals that require regular and timely communication between the CE, SN, and FN. Effective, well directed, and organized disability management can be achieved with this team approach.
a. Communication between the CE and the SN.
(1) The SN is a valuable resource for the CE. The CE may ask the SN for advice where the claimant has sustained a catastrophic injury or has undergone surgery. Likewise, a brief consultation with the SN may be in order to assess whether a particular treatment is appropriate, to help the claimant explore treatment centers, or to understand the purpose of a particular diagnostic test.
(2) The SN should communicate with the CE on cases assigned to FNs regarding important or time sensitive information so that action can be taken by the CE, if necessary.
b. Communication between the CE and the FN. During the period of FN intervention, the CE and the FN will confer, either by telephone or written communication, to determine the next action. Timely response to FN inquiries is crucial to successful case management. The CE determines the best approach to achieve progress in the case and directs the FN in obtaining necessary information or completing specific tasks needed to achieve those goals.
The FN will report to OWCP, either by telephone, in writing, or both. Written reports are usually required every 30 days, but effective disability management hinges on more frequent communication in most cases. More immediate communication can be accomplished via the phone or email.
Note - Email may be used by the CE or SN to direct the activities of the FN during the nurse intervention period. If email is used, all protocols to safeguard Personally Identifiable Information (PII) must be followed (e.g. no identifying information in the subject line, and no reference to the claimant's complete SSN, name, or other protected PII in any part of the email message). Case specific communication concerning significant case actions should be placed in the case file.
(1) When the CE refers a case for nurse intervention, the CE should communicate via the nurse referral: the goals of the intervention, any issues that the FN should address with the physician, and any pending adjudicatory actions.
(2) The FN will report to the CE by telephone, in writing, or both. The FN may note such information as the attending physician's opinion concerning length of disability, work limitations, etc. The CE may use this information as the basis for questions to the physician but should not base adjudicatory actions on it, as a FN report is not medical evidence. However, if the FN arranges for submission of a medical report from the physician, the physician's report may be used for adjudicatory purposes.
(3) Periodically during the FN intervention period, the FN and the CE will discuss the specific circumstances of the case and confer to determine the
next course of action in order to minimize disability and the effects of the work injury.
(4) The CE should regularly assess the claimant's medical condition and return-to-work status and decide what type of intervention is appropriate.
For instance, the FN may recommend a second opinion examination, or recommend medical or vocational rehabilitation services, or other kinds of evaluation. The CE should promptly respond and take whatever claims intervention is needed.
(5) The FN should confirm the closure date with the CE prior to closing the case. When directed to close the case, the FN should contact the claimant, physician and the EA to advise them of the closure and refer them to the CE if they have any concerns. The FN should also notify the SN and then submit a closure report.
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10. Length of Field Nurse Assignment. The length of FN assignment will depend on the circumstances of the case. Factors such as the type of injury, the medical conditions involved, and the availability of light or modified duty may play a role.
a. Initial Assignment. A FN will generally be assigned to a case for 120 days initially, regardless of whether the claimant has returned to work already or not; however, a shorter assignment may be considered. The CE should consult with the SN for additional guidance if needed.
Note - This assignment is made based on a unique period of disability. For instance, if a FN is assigned and the claimant returns to work during that assignment but then sustains a recurrence for a period of work-related disability, a FN can be reassigned and the initial assignment period (and the remainder of the protocol outlined in this section) begins again in a new DM Tracking record. See FECA PM 2-0601 for more information on creating DM tracking records.
b. Return-to-work monitoring. The full 120 days may not be needed when the claimant is already working at the time of FN assignment.
(1) Light Duty monitoring. If the FN obtains medical evidence indicating no full duty release, the claimant has permanent/stable work restrictions and has been working a job within the work tolerance limitations for 60 days while the FN has been assigned, the FN assignment may end. The FN should generally provide light duty follow up and oversight for a period of 60 days after the claimant has returned to work in a light duty position, unless the rationale for a longer period of monitoring is provided.
(2) Full Duty monitoring. If the claimant returns to work full duty, the FN should follow the case for 30 days (not 60), unless there is a specific reason for the longer 60-day monitoring period.
(3) Automatic extensions. An extension is not needed if the return to work occurs early enough in the 120-day period such that the 60 day monitoring will be completed prior to the 120 days. If the full 120 days has not been used, though, and the 60-day monitoring period is complete, the remaining days can be used if needed without further documentation (e.g. if the FN may be able to obtain a full duty release).
An extension to complete the return-to-work monitoring described in this paragraph is considered to be automatic, even if it takes the assignment period past the 120-day initial assignment period. As long as the return-to-work date (and type) is clearly identified in the file, the monitoring (and any necessary extension) is automatic.
c. At the end of 120 days, the CE must evaluate the case and determine whether further FN services are necessary. For optimal case management results, collaboration between the CE and SN should occur when extensions are to be granted, or if there is any question regarding the appropriateness of FN closure.
(1) If the claimant has not returned to work, and there is no clear indication that FN services would be useful for a specific purpose, the FN should be closed. This closure should be documented in the file, and the CE
should take another appropriate disability management intervention action promptly thereafter in an effort to move the case towards a resolution.
(2) If the claimant has not returned to work, and there is something specific the FN could do within the next 30 to 60 days to further the return-to-work efforts, the CE can extend the FN for 30 or 60 days at his or her discretion, as long as there is a clear indication that FN services would be useful for a specific purpose and that purpose/direction has been provided to the FN as clearly evidenced in the file.
For instance, if on day 105 the attending physician advises that after 3 more weeks of physical therapy, he will be able to provide work tolerance limitations, an extension could be authorized. Another example would be a case where the physician provided work restrictions towards the end of the 120-day period and the FN indicated that she was working with the EA on the formulation of a job offer, an extension could be granted to facilitate formalizing any such offer of employment.
If the CE authorizes a 30-day extension initially and later decides that an additional 30 days is needed, the same kind of rationale (purposeful decision making), direction, and file documentation is needed.
(3) If the claimant had an initial return to work during the first 120 days, and the 60 day monitoring of that return to work takes the FN past 120 days, the extension to follow up past the 120 days is automatic through the completion of that 60-day period. No extra file documentation is needed through day 60 of the light duty return to work (or day 30 for full duty).
(4) If the claimant had been working at the time of the initial assignment and has not been released to full duty and the work status has not changed, the FN should be closed. An extension may be granted if one of the following is expected (as evidenced in the file) within the next 30-60 days: a) full duty release, b) permanent or less restrictive work tolerance limitations, or 3) permanent job offer. Once this particular goal is accomplished, the FN should be closed. In these situations, where the claimant was already working at the time of the nurse assignment, the assignment period should not usually exceed 180 days.
d. At the end of 180 days, supervisory approval of any further extension is needed, with one exception.
(1) The 180-day automatic exception - If the claimant had an initial return to work during an extension period (between day 120 and day 180), and the monitoring of that return to work takes the FN past 180 days, the extension to follow for the 30 or 60 days is automatic through the completion of that 30 or 60-day period. No extra file documentation is needed through day 60 of the light duty return to work (or day 30 for full duty), but the FN assignment should be closed at the end of that monitoring period.
(2) Other than the automatic extension noted above, any assignment past 180 days needs an explanation in the file regarding why the extension is needed and what is expected during the next period. There should be a clear indication that FN services would be useful for a specific purpose and that purpose/direction has been provided to the FN as clearly evidenced in the file.
Extensions after the 180-day mark should usually be granted in 30 or 60-day increments (except for catastrophic cases). If an initial extension (after 180 days) is authorized, then another such extension is authorized, the same kind of rationale (purposeful decision making), direction, and file documentation is needed.
A typical scenario may occur when surgery is performed during the initial 120-day period, and if, despite a delayed recovery, the treating physician presents a clear prospect of a return to work release at the end of the 180-day assignment period, the extension of services could be given so that the FN can provide the EA with those restrictions and work with the EA on an appropriate job offer.
(3) If the claimant has an initial return to work during an extension period (after 180 days), the extension to follow is automatic through the completion of the 30/60 (full duty/light duty) period. No extra file documentation is needed for the return to work extension.
e. After 10 months of FN intervention, regardless of prior extensions, nurse intervention services should cease unless the case is within its first 30/60 day return-to-work monitoring period or is a true catastrophic case requiring ongoing intervention.
If the Supervisor (based on a recommendation from the CE and SN) believes that ongoing FN services would be useful (beyond 10 months) due to the unique circumstances of a given case (e.g. a case where major surgery was significantly delayed, and then the claimant encountered significant obstacles during medical recovery which took longer than expected to resolve), the Supervisor may authorize an additional extension as long as the file is documented appropriately as outlined above.
f. The assignment period for task-based assignments is significantly shorter. These assignments occur later in the life of a case, usually after early nurse intervention services have expired, and the goal is very task oriented. When assigned, the FN should be notified of the specific task and the time period allotted for completion of the task. Once that specific task has been accomplished, FN services should be closed. Usually these assignments should last no longer than 30 -60 days.
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11. Dual Tracking. The CE has the option to take a dual track intervention approach on certain cases. Dual tracking is when both a FN and rehabilitation counselor (RC) are assigned to a case at the same time. The CE should also refer to FECA PM Chapter 2-0600-8, 2-0600-9 and 2-0813-5. Accepted cases with active FN involvement may be assigned to a RC in order to facilitate an earlier return to employment. The FN may recommend such an approach to the CE, or the CE can determine the benefit and direct such action independently.
There are certain instances when this dual intervention is appropriate and there are specific and distinct goals for both the FN and RC.
a. Criteria for Dual Track Intervention. The dual track approach is warranted in two basic circumstances:
(1) Placement Previous Employer. If the EA is trying to accommodate the claimant's work restrictions, but is having difficulty formulating a position, the FN or CE can recommend the services of an OWCP RC. For instance, if vocational testing, an ergonomic evaluation, or assistive technology would enable the EA to offer a job to the claimant or explore job opportunities for placement in another departmental position, dual assignment of an RC in conjunction with the FN may be appropriate and useful.
(2) Placement New Employer. If the claimant has a medical condition which is likely to lead to permanent work restrictions, and there is no possibility that the EA would be able to accommodate those restrictions, the claimant may benefit from a dual approach where the FN continues to assist with medical recovery while the RC begins early vocational assessment and planning.
b. Purpose and Scope of Dual Tracking. The purpose of the dual track approach is to obtain medical recovery as soon as possible while at the same time achieving an early return to work. This may be with either the EA or a different employer.
(1) The FN primarily works with the treating physician to obtain as early a recovery as possible and maximum work tolerance limitations.
(2) The RC can provide rehabilitation services to the claimant and the EA that will allow the EA to formulate a suitable job offer, e.g. vocational testing, a transferable skills analysis, an ergonomic evaluation, etc. Or the RC can work with the claimant to determine his/her skill level and the potential labor market for medically suitable employment if the EA is unable to accommodate the claimant.
(3) If the EA cannot accommodate the claimant's work restrictions, once the FN has obtained stable, well-defined work tolerance limitations, nurse intervention will end and the vocational rehabilitation program will continue.
(4) The FN and RC should communicate with one another during this process. Also, the FN will work with the SN, and the RC will work with the rehabilitation specialist (RS), but the CE will lead the process.
c. CE Responsibilities. The CE is responsible for recognizing this dual track potential and for making the VR referral during the nurse intervention phase. It is recommended that the CE discuss this potential with both the SN and the RS before making such a referral. Ultimately, it is the CE's responsibility, in coordination with the SN and RS, for keeping both the FN and the RC within their roles and achieving the best outcome.
Once a case has been accepted for both types of intervention, the CE should send out a letter to the claimant and EA about this dual track approach, explaining the roles of both the FN and the RC as well as the claimant's own responsibilities in cooperating with this approach.
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12. Medical Management. A variety of medical issues arise while a case is in nurse intervention. It is the CE's responsibility to be aware of these issues and to take prompt action on those requiring further clarification and CE response. While the FN will be actively involved in working with the claimant, the physician and the EA, the ultimate responsibility of managing the direction of the case continues to rest with the CE. It is important, therefore, for the CE to utilize the services of the FN in a constructive way, keeping in mind that the ultimate goal of nurse intervention is to minimize the length and extent of disability whenever possible.
a. Initial Actions. The CE has two primary medical intervention options during Nurse Intervention. One is a letter to the claimant's treating physician, and the other is a second opinion referral. Also, the CE may consult with the District Medical Advisor (DMA) or SN regarding diagnosis, length of disability, proposed treatment plan, or any medically-related issue for the purpose of gaining a better understanding of the nature of injury and to help formulate the next appropriate intervention. Any or all of these types of medical interventions may be taken simultaneously while a FN is working on a case.
The timing of these actions is important. First, the CE must recognize that there is a need for such an intervention, and then the CE must determine the best type of intervention. For example, if a treating physician notes a change in diagnosis or extends disability without rationale, the CE should recognize these as obstacles or barriers and take prompt action to determine whether that change in diagnosis is medically supported, whether it is related to the accepted mechanism of injury, and then obtain information on the probable outcome. Other red flags requiring CE medical intervention action are continued extensions for physical therapy without clear goals or direction, as well as multiple, concurrent medical conditions which may further complicate a successful return to work.
The type of intervention depends upon the CE's determination of the quickest resolution to these obstacles, knowledge of the claimant's EA's ability to reemploy injured workers in various capacities, as well as awareness of claimant motivation. The FN may also make recommendations.
(1) Treating Physician. The claimant's treating physician generally has the most knowledge about the claimant's work-related medical condition, as well as any non-work related medical issues, and the attending physician is the one who is recommending specific treatment options for the claimant. When any concerns or issues are identified by the CE or raised by the FN, the CE has two options during the nurse intervention period.
(a) The CE can issue a targeted letter to the claimant's treating physician specifically requesting rationalized medical information in order to clarify any medical issues. Any letter should be tailored to fit the specifics of the case, identifying the specific medical issues or concerns and seeking clear responses in order to obtain the best results.
(b) The CE can direct the FN to obtain the specific information from the physician. Since the FN should have a working relationship with the claimant's physician, in many instances he or she can obtain the clarifying or necessary information in a more expedient manner.
(2) Second Opinion Referral. The CE may opt to obtain a second opinion examination during Nurse Intervention. When possible, it is recommended to make this referral while the FN is still assigned to the case so that upon receipt of the report the FN can assist with the medical information obtained. For example, if the second opinion physician recommended surgery or a different treatment modality, the FN can be instrumental in coordinating pre- and post-operative care for the claimant.
(3) DMA Referrals. The DMA can be a valuable resource for the CE to help better understand a claimant's medical condition, treatment proposed, and potential outcomes with respect to whether a claimant may be able to return to some form of gainful employment. The DMA can provide an opinion with regard to the appropriateness of certain types of surgical requests and, if necessary, advise whether further information is required, or whether a second opinion might be necessary.
(4) Consultations with the SN. The SN is uniquely qualified to assist CEs with medical issues that arise during the nurse intervention process. The SN may help CEs gain a better understanding of the FN reports and recommendations offered, and then to direct FNs to obtain clarifying information. The SN may also help the CEs formulate appropriate questions to the attending or second opinion physicians.
SNs are able to assist the CEs in understanding the particular treatment being recommended or undertaken by a claimant. The SN may also assist with determining whether a functional capacity evaluation (FCE), a consultation with a specialist, or a home health aide would be necessary, or whether more information is required. Together with the CE, the SN can help to explore the medical intervention options in order to maximize early recovery and return to work.
b. Secondary Actions. After a response has been received from the attending physician or a second opinion report has been received, the CE is responsible for reviewing the report and formulating the next course of action. The CE should send a copy of the report to the FN, if he or she does not already have it, and discuss the next course of action. The SN may also be involved if necessary. In problematic cases it may be advisable to conduct a conference call with the FN. Such a call may also include the SN, claimant, and/or EA to discuss the evaluation results and potential for return to employment.
It is essential that the CE take prompt follow-up action on these medical interventions, since the FN has a limited assignment period on the case. It may be necessary to extend the FN's time on the case, but that can best be determined if the CE reviews the medical evidence promptly and discusses the findings with the FN and/or SN. The sooner the next course of action is determined, the greater the likelihood that the claimant obtains the necessary treatment and achieves a faster recovery so that he/she may return to work. If a claimant returns to work while the FN is still assigned to the case, the FN may assist the claimant with certain post-employment services, which generally help the claimant remain at work.
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13. Best Practices. The CE and FN work together as a team to assist the claimant in the earliest and best recovery possible, as well as a successful return to work. The goal is for the claimant to return to full-duty work within one year from the date of injury (during the period of retention rights set forth in 5 U.S.C. 8151). Timely and appropriate disability management, good CE judgment, and directed action make the likelihood of achieving this goal more realistic. Adjudication of a claim at the first opportunity, prompt payment of compensation to a claimant who is disabled, and early nurse referrals greatly assist in this endeavor.
Once a FN has been assigned to an accepted case, there are some practices that a CE should utilize in order to obtain the targeted outcome. Some of these best practices are identified below, but each case is unique and every intervention action should be crafted to the specific circumstances of that particular case. All of these practices involve consistent and timely communication between the FN and the CE, timely CE response to FN recommendations, and identification of medical obstacles as well as prompt intervention with a non-cooperative claimant.
a. Conference Calls. During the nurse intervention phase, CEs will find that conference calls with all parties are most useful. These multi-party calls can involve the SN, the claimant, the EA and the FN. Depending upon the stage of recovery, the CE may initiate a conference call with all of these parties at the same time. When a job offer is found unsuitable, a conference call with the EA, the claimant and FN often effectively defines the deficiency and the result is a suitable offer. If a claimant has been out of work for a longer period of time, a conference call can help get the worker involved again with the EA and can be helpful in addressing fears about returning to work. The CE may ask the FN to coordinate the scheduling of the conference with all parties, which will enable the CE leading the conference to focus on the direction and goals. See PM 2-0600-12 for more information on conferences during Disability Management.
b. Surgery. If a surgery has been authorized, the FN may assist in both the pre- and post-operative management of the medical care for the claimant. The FN may attend the pre-operative appointment, assist the medical providers with billing, and help the claimant with recovery coordination and support. The CE can rely on the FN to coordinate securing any prescribed durable medical equipment and home health aides, if necessary. Results are best attained when the CE is available to the FN, who may have authorization and compensation questions. After surgery and sufficient recovery, the CE should direct the FN to obtain work restrictions and to make contact with the EA for a job offer. A pre-surgery conference call with the claimant and the FN is a good tool, as it provides useful information to the claimant, allows the CE to better identify intervention points based on anticipated stages of recovery, and often facilitates an earlier return to work because it sets the stage for what the claimant may expect from OWCP post-surgery.
c. Extensions. A FN should be aware of the time frames within which he or she is working and, if an extension is necessary, the FN should request such in advance. The CE should be aware of what the FN has been accomplishing and the current status, so that when an extension is requested, the CE will know whether it should be authorized. Extensions are most useful when a return to work is imminent or there are work restrictions in file and the EA is willing and able to accommodate work limitations. The CE should be reasonably assured that a return to work will occur and should be clear about the reasons for, and the goals of, the extension. If it is not for an imminent return to work, then an extension should only be authorized to finalize some work restrictions or to obtain some other clearly defined goal.
d. Recurrences. To be most effective, a FN referral should be made when a recurrence of disability is accepted. Such a referral should be treated similar to an initial referral for FN services. There should be a targeted goal outlined by the CE to the FN, and the CE should work closely with the FN to attain these goals: recovery and an early return to work. The CE may want to discuss the selection of the FN assigned with the SN prior to referral, since the reassignment of the same FN that had been assigned prior to the recurrence may be appropriate based on that FN's background on the case and rapport previously established.
e. Partial Disability. The CE may make a FN referral when a claimant has already returned to work in a light-duty capacity. In order for nurse intervention to be successful, the CE should identify the referral goal as maintaining the claimant at work or attempting to increase the claimant's work tolerances. The FN may arrange for an FCE and for the treating physician the opportunity to review the results of the FCE. The FN can also help to coordinate a treatment plan which greatly encourages an increase in work tolerance limitations. The EA should be willing to accommodate any changes in work restrictions and be generally supportive of the FN or RC in facilitating an ergonomic assessment, if needed, and the purchase of ergonomic equipment. The CE, however, should be actively involved in this activity and work closely with the FN on the goal of increasing work hours and activities.
f. Catastrophic Cases. Due to the complexity and long-term nature of catastrophic cases, CEs should make a FN referral as soon as the case is accepted. The SN, CE and FN (and RC if assigned) should work together closely for the best results. Often the claimant and family members are involved in such cases. There are often multiple medical or nursing facilities, physicians, therapists, attendants and durable medical equipment providers involved in the care of the claimant, all of which require billing and authorization actions in addition to the coordinated care of the claimant. CEs should work closely with the SN, who is instrumental in directing the FN as to what our program provides in these situations.
Close communication and collaboration is the key to working through the multiple phases of a catastrophic claim. Hospital team conferences may be useful, and the CE and FN should participate. It is often a good idea for the SN to also participate in these conferences in order to provide appropriate guidance about FECA coverage and the benefits available. Often, alternative living facilities or intensive home health care is needed after the initial acute phase of care. CEs should rely on the expertise of the FN and SN to assist in locating the best and most cost-effective provider available to the claimant. Whenever possible, the CE should be cognizant of the possibility that even a severely injured claimant may be able to perform work activities, and then to consider a vocational rehabilitation referral when indicated.
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1. Purpose and Scope. This chapter discusses procedures for monitoring disability claims paid on the periodic roll and for developing evidence to determine continuing entitlement to compensation, as well as the nature of that entitlement. Monitoring of death claims is addressed in FECA PM 2-0700. Forfeiture is discussed in FECA PM 2-1402.
Payment on the periodic roll is an efficient method of ensuring regular payment of compensation to those with long-term compensable disabilities. In all periodic roll cases, it remains the responsibility of the Claims Examiner (CE) to ensure that evidence remains current in the case, that all necessary medical care is provided, and that appropriate use is made of nursing and rehabilitation services. Quality case management, with active monitoring of the progress of the case, should be utilized to obtain the best possible outcome and a return to employment where at all feasible.
This chapter discusses review of the medical evidence, as well as the key factual elements to review in conjunction with the annual Form CA-1032.
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2. Statutory Provisions. When a case has been accepted, the claimant is entitled to compensation benefits for disability and medical treatment for the medical condition(s) found to be related to the employment.
a. Sections 5 U.S.C. 8105 (total disability) and §8106 (partial disability) provide that compensation is payable for wage loss caused by a medical condition found to be related to the employment.
b. Section 5 U.S.C. 8107 (schedule award) provides that compensation is payable for the permanent loss or loss of use of certain anatomical members, functions, or organs of the body. Except for disfigurement, a schedule award is payable consecutively, but not concurrently, with an award for wage loss due to the same injury.
c. Section 5 U.S.C. 8111 provides for additional compensation for the service of an attendant where required; after January 4, 1999, this is paid as a medical expense pursuant to 5 U.S.C. 8103.
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3. Burden of Proof for Terminating Benefits. Having accepted a claim and initiated payments, OWCP may not terminate periodic compensation without a positive demonstration by the weight of evidence that entitlement to benefits has ceased. Generally, this means that a claimant's failure to reply to a request for a medical report is insufficient grounds to terminate benefits.
Failure to report for or cooperate with an OWCP-directed medical examination constitutes grounds for suspension of benefits under section 8123 of the FECA (see FECA PM 2-0810-13). When a claimant is receiving benefits on the periodic roll, benefits may not be terminated or reduced without giving the claimant prior notice and an opportunity to provide evidence of continuing entitlement except in a limited set of circumstances (see FECA PM 2-1400).
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4. Placement on the Periodic Roll. When the medical evidence indicates that disability is expected to continue for more than 60-90 days, compensation should usually be paid on the periodic roll. When periodic roll payments are initiated, the CE should advise the claimant by Form CA-1049 or equivalent narrative letter. The letter should notify the claimant of the conditions for termination of benefits without prior notice and the requirement that employment be reported. A copy of the notice should be sent to the employing agency regardless of the claimant's current employment status.
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5. Monitoring Claims on the Periodic Roll. After payment has begun, the CE is responsible for obtaining medical and non-medical evidence to determine continued entitlement. The CE is responsible for annual review of cases on the periodic roll to ensure that payments are correct and that continuing entitlement is substantiated in the file.
All cases on the periodic roll require completion of Form EN-1032 on a yearly basis. Form CA-1032 is the cover letter for the EN-1032. The office generates and mails Form CA-1032 (with EN-1032 attachment) to claimants. The CE should then review each case after 30 days has elapsed and complete the Periodic Entitlement Review (PER) in the Integrated Federal Employees' Compensation System (IFECS). The PER is discussed in further detail in paragraph 15 of this chapter.
a. Elements of the Review. The CE will document the PER annually, and all cases on the periodic roll will be monitored closely to:
(1) Determine whether the accepted work-related condition is still active or has resolved.
(2) Verify continuing entitlement to compensation and the appropriate level of payments.
(3) Reduce or terminate compensation payments when a claimant recovers from the employment-related condition or returns to work.
(4) Initiate vocational rehabilitation and reemployment action as soon as it appears that permanent impairment may result or a change of job duties may be required due to the work-related injury.
The factual and medical elements of the review are outlined in detail in the following paragraphs.
b. Timeframes for Medical Evidence. The medical evidence is reviewed annually, and the file should contain a physician's rationalized opinion with regard to whether continued disability is causally related to the employee's accepted injury or illness. However, depending on the nature of the condition, such medical evidence may not be required on an annual basis. 20 C.F.R. §10.501(a)(2) provides that, "For those employees with more serious conditions not likely to improve and for employees over the age of 65, OWCP may require less frequent documentation, but ordinarily not less than once every three years." Therefore, the following guidelines should be used when determining the adequacy of medical evidence in the file:
(1) PR. Cases in which temporary total disability payments are being paid require medical evidence as described in this chapter once a year.
(2) PW. Cases in which payments are being made for a loss of wage-earning capacity require medical evidence as described in this chapter every two years.
(3) PN. Cases in which the CE has determined, and the Supervisory Claims Examiner has verified, that no wage-earning capacity exists require medical evidence as described in this chapter every three years.
(4) PS. No medical reports need to be requested in a case where a schedule award is being paid. These cases require annual release of Form CA-1032 where payment extends beyond one year to determine the status of dependents for which augmented compensation is being paid. If the dependent's status is at issue, the case may be reviewed more frequently.
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6. Medical Elements of Review. Medical evidence should be obtained in accordance with the case status, as noted in paragraph 5 above, in order to determine the progress of the employment-related condition and the extent of impairment resulting from this condition.
General procedures for obtaining medical evidence are contained in FECA PM 2-0810. Where adequate medical reports are not received at intervals reasonable to the particular case, it is the CE's responsibility to obtain them or to make an appropriate referral for a second opinion medical examination using the authority provided in 5 U.S.C. 8123.
The CE may contact the claimant's attending physician directly, with a copy to the claimant, to obtain medical evidence containing the information shown below. Alternatively, the CE may write directly to the claimant and advise that current medical evidence must be submitted to support continuing payment of benefits. The claimant need not be examined if the physician can provide the requested information from his or her records and an examination has occurred within the timeframes described in paragraph 5 above.
If appropriate, specific questions should be addressed to the physician regarding whether a temporary aggravation has resolved or whether the aggravation has caused a material change in the pre-existing/underlying condition; whether the claimant's physical condition permits a return to the job held at time of injury or to a more restrictive position; or whether the claimant would be a candidate for vocational rehabilitation. A copy of a current and accurate Statement of Accepted Facts (SOAF) should be enclosed if it would assist the physician with providing a response. SOAFs are discussed in FECA PM 2-0809.
a. Content of Medical Reports. Regardless of whether the CE contacts the physician or the claimant, the medical report should include:
(1) The date of most recent examination.
(2) Results of recent objective testing.
(3) Physical examination findings.
(4) The diagnosis of any conditions present.
(5) A well-reasoned medical opinion supported by the physical findings and objective testing as to whether the current condition(s) is related to the employment.
(6) The claimant's work restrictions, including a completed Form OWCP-5, if applicable.
(7) The type and frequency of medical treatment being provided or recommended.
(8) Prognosis for continued recovery.
b. Follow-Up Actions.
(1) If sufficient medical evidence is in file, the CE should review the reports to determine whether disability is related to the employment injury; whether disability for the job held at the time of injury continues; whether appropriate medical treatment is being given; and whether the case should be expanded to include consequential conditions. If partial disability is indicated, the CE should determine whether the claimant's work limitations permit any employment. If so, the CE should refer the case for vocational rehabilitation services (see FECA PM 2-0813).
(2) If a medical report is not received within the specified time (30-60 days should be considered reasonable) or is not responsive to the questions asked, the CE may write to the physician for more information.
The CE may also direct the claimant to undergo an examination by a second opinion specialist If the CE determines that a conflict of opinion exists between the claimant's attending physician and the second opinion specialist, the conflict must be resolved by a referee specialist. The OWCP should make an appointment for the examination. The notification to the claimant should include the warning that under 5 U.S.C. 8123(d) benefits may be suspended for failure to report for examination. Note that the sanctions outlined in Section 8123(d) may be invoked only in connection with a specific appointment (see FECA PM 2-0810).
c. Changes in Medical Status. The CE should take action based on the weight of the medical evidence as follows:
(1) Where injury-related disability has ceased, notify the claimant of proposed termination of benefits (see FECA PM 2-1400). The OWCP has the burden of proof to justify the termination of benefits by positive and specific evidence that injury-related disability has ceased. The inadequacy or absence of a report in support of continuing benefits is not sufficient to support termination.
(2) Where total disability has ceased but permanent residuals of the employment-related injury remain which prevent the employee from performing the regular duties of his or her date of injury position, action should be taken to reemploy the individual through vocational rehabilitation and placement with the previous employer or a new employer. This would be followed by a loss of wage-earning capacity decision, if appropriate.
(3) Where the claimant has no earning capacity and there is no reasonable prognosis for improvement based on the evidence in the file, the CE should prepare a memorandum to file for certification by the Supervisory Claims Examiner to establish placement in PN status. See Exhibit 1.
d. Attendant Allowance. As part of the medical review of the case, the CE should also determine whether an attendant allowance is being paid and, if so, whether continuation of those payments is appropriate.
20 CFR §10.314 allows payment for services of an attendant where it is medically documented that the claimant requires assistance to care for personal needs such as bathing, dressing, eating, etc. Such services are paid as a medical expense under 5 U.S.C. 8103 and are paid directly to the provider of services. Prior to the January 1999 revision of the Federal Regulations, an attendant allowance was paid directly to the claimant. Any such allowance approved prior to January 1999 will continue to be paid to the claimant until the need for the attendant ceases.
As part of the attendant allowance review, the CE should consider the following:
(1) Physical Examinations. When the condition requiring the services of an attendant is not permanent, periodic physical examinations must be arranged to determine whether the services of an attendant continue to be necessary. When a claimant is asked to report for examination and is unable to travel alone, transportation and other reasonable and necessary expenses may be paid for the attendant.
(2) Concurrent Receipt of Other Federal Payments. An attendant allowance is payable even though the claimant is receiving salary or sick or annual leave pay. A claimant who has elected benefits under the Civil Service Retirement System (CSRS) or the Federal Employees' Retirement System (FERS) may not receive an attendant allowance except for periods concurrent with payment of a schedule award by OWCP.
(3) Termination of Allowance. Where the evidence of record, including medical opinion evidence from the physician chosen by the claimant to provide treatment, establishes that an attendant allowance should be terminated, the claimant is to be given pre-termination notice and the opportunity to respond.
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7. Employment and Earnings. Form EN-1032 serves as a report of earnings which OWCP may require under 5 U.S.C. 8106(b) when a claimant is receiving compensation. Form EN-1032 must be completed at least annually by claimants who are on the periodic roll or on the daily roll for more than one year.
a. Reporting Requirements On Form EN-1032, claimants are specifically asked to report all employment for which they receive a salary, wages, income, sales commissions, piecework, or payment of any kind. 20 CFR §10.525 states that an employee must report all outside employment, including any concurrent dissimilar employment held at the time of the injury, even if the injury did not result in any lost time in that concurrent position. Claimants are also asked to report any employment held at the time of injury if he/she worked at that employment during any period covered by the form.
In addition to salaried employment, the claimant is required to report self-employment and unremunerated or volunteer employment. 20 CFR §10.526 stipulates that the fact that the claimant did not receive any salary for work is not a basis for failing to report this activity. See P.M., Docket No. 07-2169 (issued March 3, 2009) (ECAB found claimant failed to report volunteer activities where claimant was helping out friends by answering phones, making deliveries, and opening a florist shop); William H. Higgins, 34 ECAB 833 (1983) and Howard M. Sprayberry, 36 ECAB 115 (1984). The fact that business expenses may outweigh income does not excuse the claimant from reporting the earnings. See Gary L. Allen, 47 ECAB 409 (1996) (Although the claimant testified that his lawn mowing business lost money, ECAB affirmed the forfeiture of compensation noting that the CA-1032 form did not instruct the reporting of earnings based on profit or loss, but rather on what it would cost to have someone else do the same work); William E. Steadman, 38 ECAB 688 (1987). Claimants are also required to report any work or ownership interest in any business enterprise. B.S., Docket 09-76 (issued September 30, 2009) (ECAB found appellant's argument that she was not required to report her assistance with her husband's business as she earned no wages to be without merit).
b. If there is any evidence on Form EN-1032 that the claimant has any type of employment or earnings, further action is warranted. Evidence of employment or earnings may also be found in other documentation in the file, e.g. a medical report, a vocational rehabilitation report, etc. Regardless of the source of the information, the CE is responsible for noting the existence of work activity or earnings and their bearing, if any, on continuing entitlement to compensation. The CE should pursue clarification and obtain further information from the claimant, the Social Security Administration, or the new employer. The CE may also consider referral to the Office of Inspector General if unable to obtain the necessary information.
c. Claimant. If earnings are reported, the CE may seek additional information directly from the claimant. When there is evidence that the claimant owns or is a partner in his or her own business, or is an officer in a corporation, the CE should request additional information from the claimant concerning the specific nature of the business and his/her involvement therein. This request should be made by narrative letter and questions should specifically address the circumstances of the case. The letter should include a reference to the Secretary's authority to require such information and the penalties associated with false reporting (the references contained in Form EN-1032 may be used). The letter should ask the claimant to sign and date his/her response, certifying the accuracy of the information given. Pertinent issues, depending on the nature of the employment, may include:
(1) Sole Proprietorship.
a) The name and address of the business, the owner of the business, and under whose name the business is operated.
b) The manager of the business and whether this person has any relation to the claimant.
c) The exact duties the claimant performed since the business was established, i.e. bookkeeping and accounting; advertising; purchasing merchandise, equipment and supplies; setting prices and hours of operation; sales; and personnel actions such as hiring, firing, rates of pay and promotions.
d) Who is billed by suppliers and who actually pays for the merchandise, with names and addresses of suppliers and clients.
e) Income secured from the business since its establishment and tax returns for all years in which the claimant is entitled to or claiming FECA benefits, and for one year prior.
f) The name of the person(s) who have authority to write checks and draw from the business bank account, as well as the name of the person who paid the business insurance premiums (with a copy of the policy).
g) Copies of any tax permits, business licenses, etc., for the business, along with the employer's identification number (EIN).
h) If the business premises were leased, the name of the person who holds the lease and pays the rent, along with the name and address of the landlord.
(2) Partnership. Many of the same issues noted above for sole proprietorship also apply to partnerships. Some issues specific to partnership include the following:
a) The names and addresses of the partners, with detail regarding which individuals have been held out as active partners, as well as the distributive share of the partnership of each partner and a copy of the partnership agreement.
b) The specific duties of each partner and the hours per week/month spent by each partner on those duties.
(3) Corporate Officers. Many of the same issues noted above for sole proprietorship also apply when the claimant is a corporate officer. Some issues specific to corporations though include the following:
a) The name, address and telephone number of the corporation and the date of incorporation, as well as a list of the major stockholders.
b) The type of business and the business structure prior to incorporation.
c) If previously self-employed (as a sole proprietor), the reason for incorporating, and the gross and net earnings in the year prior to incorporation with IRS Form 1040, Schedule F or C, and Schedule SE for that year.
d) A copy of the Articles of Incorporation, copies of the minutes of the corporate officers, and corporate tax returns for all years in which the business was incorporated and the claimant has been entitled to or is claiming benefits under the FECA, as well as copies of all W-2 forms attached to the claimant's personal tax return.
e) Names, addresses, salaries and personal relationships to the claimant (if any) of all corporate officers.
f) If there is a board of directors, the names, addresses, directors' fees and personal relationship to the claimant (if any) of all board members.
g) The number of people hired to work in the business, along with the names and addresses for some of these individuals.
h) Monies derived from the corporation broken down by amount, date received and type (i.e. monies representing dividends, rents, loan repayments, wages, reimbursement of personal expenses, and use of a company vehicle).
i) An explanation of how corporate profit has been distributed in any year since the date of incorporation, and if it has not been distributed, an explanation regarding why not.
d. Social Security Administration (SSA). When information of any kind is received suggesting possible employment or earnings, the CE should send Form CA-0935, with enclosure Form SSA-581, to the claimant in cases where compensation is being paid on the periodic roll for total disability. Form CA-0935 requests the claimant to sign the Form SSA-581 so that OWCP can obtain wage information from SSA for a specific period. Based on the circumstances in the case, it may also be necessary to send the Form CA-0935 to the claimant in cases where compensation is being paid based on a loss of wage-earning capacity. The CE should write the claimant's case number on the SSA-581 before it is mailed to the claimant.
Form CA-0935 need not be sent to every claimant every year, but should be sent when there is evidence of earnings that requires further development.
(1) If the claimant does not sign and return the Form SSA-581, a second request should usually be made. If Form SSA-581 is not signed and returned after a second request is made (and there is some indication in the file that the claimant may have earnings or work activity), the case may be referred to the Office of Inspector General (OIG) for investigation to determine if the claimant has in fact earned wages for the period under consideration. See FECA PM 2-0402. If so, forfeiture may be appropriate. See FECA PM 2-1402.
Benefits may not be suspended for failure to complete Form SSA-581, however, as authorization to obtain reports from SSA is not a requirement for receipt of compensation.
(2) If the claimant signs the Form SSA-581, the CE should release Form CA-1036 to SSA. Form CA-1036 must be accompanied by the signed release from the claimant on Form SSA-581. The form must include the claimant's full name, social security number, and date of birth in the spaces provided. The period must also be specified clearly with a beginning and end date.
Form SSA-581 is valid for only 60 days from the date signed by the claimant; hence, the CE should check the date the SSA-581 was signed before releasing the CA-1036. If the SSA-581 is older than 60 days, the CE must reissue a CA-0935 with a new SSA-581 to the claimant for completion before sending a CA-1036 to SSA.
The costs to OWCP for supplying the information are related directly to the period of time covered by the request. Therefore, the CE should ensure that the information is truly needed and that the request does not cover a longer period than necessary for the proper handling of the claim. Particular care should be exercised where the request concerns a period in excess of five years. The request should not include any period for which information has previously been requested from SSA.
e. New Employer. When information about a claimant's employment and earnings from a private employer will be helpful in determining the nature and extent of continuing entitlement to compensation, the CE may ask the new employer to respond to Form CA-1027 or an equivalent request. The new employer should be asked to provide the claimant's job title and brief description of duties performed; the number of hours worked per week; the inclusive dates of employment; the weekly rate of pay, exclusive of overtime, but including the value of any board lodging, or other advantages received in addition to or in lieu of wages; any change in the rate of pay and the approximate date of each change; and, if the claimant is no longer employed, an explanation regarding why.
f. Investigation. Investigation may be considered when evidence concerning the extent of the claimant's disability, earnings or activity is in question and cannot be determined adequately by the evidence of record. See FECA PM 2-0402.
g. If the evidence demonstrates that the claimant worked during a period when compensation was paid, the nature and regularity of the work may be sufficient to demonstrate an earning capacity warranting adjustment of the compensation (even if the work itself did not result in earnings).
If the employee knowingly omits or understates earnings, compensation will be declared forfeit for the period covered by the requested report. Also, forfeiture may be declared for failure to report self-employment if a value could be placed on the work performed in the open labor market, and the evidence establishes that the claimant was aware or reasonably should have been aware of the requirement to report such employment. See FECA PM 2-1402 for a more detailed discussion of the forfeiture provision.
Note: Claimants are required to report and describe volunteer activity even if no remuneration is received, as reporting these activities and employment is material to a determination of continuing disability. Even if there is no immediate change in monetary compensation, OWCP must evaluate this information in the context of further case action. A claimant who is regularly performing his/her second job or engaged in regular volunteer activity may be sent for a second opinion evaluation or evaluated for vocational rehabilitation.
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8. Dependents. A claimant's entitlement to augmented compensation is usually determined from information supplied by the claimant on Form EN-1032, although it may come in narrative form.
a. Reporting Requirements. On Form EN-1032, claimants are reminded that payment is made at 66 2/3% of the applicable pay rate if there are no dependents, and at 75% of the applicable pay rate if there are one or more eligible dependents. The EN-1032 asks relevant questions pertaining to a claimant's spouse and children.
The language on Form EN-1032 clearly defines a dependent as: (a) a husband or wife who lives with the claimant; (b) an unmarried child, including an adopted child or stepchild, who lives with the claimant and is under 18 years of age; (c) an unmarried child who is 18 or over, but who cannot support himself or herself because of mental or physical disability; (d) an unmarried child under 23 years of age who is a full-time student and has not completed four years of school beyond the high school level; or (e) a parent who totally depends on the claimant for support.
Further, Form EN-1032 clarifies that augmented compensation may be claimed for a spouse or dependent who does not live with the claimant if a court has ordered the claimant to pay support to that person. The augmented rate would also apply for a spouse, an unmarried child under 18, or an unmarried child between 18 and 23 who is a full-time student, even if that person does not live with the claimant, as long as regular direct payments are made for his/her support.
Lastly, the claimant is reminded that he/she may not receive augmented compensation for an ex-spouse, even if court-ordered alimony is being paid, and that it is the claimant's responsibility to report any changes in dependents as soon as those changes occur.
b. If there is any question pertaining to the status of the claimant's dependents, the CE should request clarification from the claimant. Birth, death and marriage certificates should be requested if necessary. Investigation, as outlined in FECA PM 2-0402, should be considered when evidence concerning the existence of eligible dependents is in question and entitlement cannot be determined adequately by the evidence of record.
c. Students. A letter to verify student dependency should be released to the claimant for completion shortly before a child reaches the age of 18 if augmented compensation is being paid solely on the basis of a dependent whose dependency status rests on the "student" requirement. A request should be released for completion on yearly basis thereafter for the duration of the award, or for the duration of entitlement to augmented compensation on the basis of status as a "student." The claimant is required to report any changes to student status in the interim. The Student Dependency letter can be used for this verification.
d. Dependent Incapable of Self Support. If the claimant has a dependent over the age of 18 due to the fact that the dependent is incapable of self support, the CE must review the case record to determine continued eligibility. The medical evidence in the file pertaining to the dependent should reflect that the dependent is incapable of self-support by reason of a mental or physical disability. A claimant is not entitled to augmented benefits for a child over 18 due to the child's inability to obtain employment due to economic conditions, lack of job skills, etc.
A request should be released on a yearly basis asking the claimant to submit a medical report verifying that the dependent's medical condition persists and that it continues to preclude self-support. Such a request should be sent each year for the duration of entitlement to augmented compensation on the basis of a dependent over the age of 18 being incapable of self-support. The Student Dependency letter can be used for this verification.
As outlined in 20 CFR §10.417(d), if the status of such a dependent is unlikely to change, the claimant may establish the permanency of the condition by submitting a well-rationalized medical report which describes that condition and the ongoing prognosis of that condition. Once the permanency of the condition is established, the CE does not need to seek further information regarding that condition; however, if there is a change in that condition, the claimant is required to immediately report that change to OWCP. If the permanency of such a condition is established, the CE should prepare a memorandum to the file for concurrence by the Supervisory Claims Examiner.
e. Entitlement to augmented compensation may be suspended (i.e., compensation may be reduced from 75% to 66 2/3%) if OWCP does not receive a timely response to a request for information concerning eligible dependents. See 20 CFR §10.536 and paragraph 14 in this chapter.
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9. Dual Benefits. Receipt of benefits from other Federal agencies such as the Office of Personnel Management (OPM), Social Security Administration (SSA), or the Department of Veterans' Affairs (VA) may require an election of benefits or an offset. Other benefits such as separation incentives or buyouts may also require an offset of compensation benefits. See FECA PM 2-1000 for a detailed discussion of dual benefits.
a. OPM Retirement Benefits. Form EN-1032 asks the claimant to report any retirement benefits (either disability or regular) received from the OPM, the Foreign Service, or any other Federal disability or retirement system. Claimants are asked to provide their CSA number, if applicable, and specifically note whether any check received is for disability or retirement.
When a claimant or beneficiary is entitled to disability/death benefits under the FECA and annuity benefits from OPM under the Civil Service Retirement System Act (CSRS) or the Federal Employees' Retirement System Act (FERS), the claimant/beneficiary must make an election between OWCP and OPM benefits.
b. VA Benefits. Form EN-1032 asks the claimant to report any increase in VA disability benefits resulting from the accepted work-related injury. The claimant is asked to provide his/her file number, the kind of disability for which the award was made, and whether the percentage of the VA award has increased since the accepted work-related injury for which the individual is receiving benefits under the FECA. If the award did increase, the claimant is asked to provide the date of the increase.
If the claimant is receiving benefits from the VA for the same injury for which FECA benefits are being paid, the CE should send Form CA-1019 or equivalent request to the VA. If the claimant's award from the VA has increased as a result of the injury, the claimant must make an election between FECA benefits and the increased VA benefits.
c. SSA Benefits. Form EN-1032 asks the claimant to report any benefits received from SSA as part of an annuity under FERS. Claimants are instructed that they are not required to report any benefits received from the SSA on account of employment in the private sector.
The CE should review the file carefully if the claimant is 62 years or older and is under the FERS retirement system, since a FERS offset may be required. An offset is not required for CSRS benefits. If the CE cannot determine what retirement system the claimant is under, the CE should send a letter to the claimant and to OPM to request information. The CE should review the case for this possible dual benefit regardless of the claimant's response to the relevant question on the EN-1032.
d. Other Benefits. Form EN-1032 asks the claimant to report any Federal Black Lung benefits or any other benefits paid by the Federal government, not including benefits under the FECA, to include the type and value of any such award.
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10. Third Party Settlements. Form EN-1032 asks the claimant to report any settlement or award from a claim or suit against a third party in connection with the injury or illness for which he/she is receiving compensation. The claimant is reminded that this includes any product liability or medical malpractice settlement/award received that relates to treatment for the accepted injury or illness.
The CE should refer any cases in which settlements have been newly made to the Office of the Solicitor.
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11. Fraud and Felony Conviction. Form EN-1032 asks the claimant whether he/she has ever been convicted of a fraud-related offense in connection with the application for or receipt of workers' compensation benefits, and whether he/she has been incarcerated for any period during the past 15 months for any felony offense.
If a claimant is convicted of fraud in connection with the application for or receipt of benefits under the FECA, 5 U.S.C. 8148(a) requires termination of all future benefits, including medical benefits. If a claimant is imprisoned based on a felony conviction unrelated to the FECA claim, 5 U.S.C. 8148(b) requires suspension of benefits to the claimant, but allows payment of benefits to eligible dependents during the time that the claimant is imprisoned.
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12. Address Changes. If the claimant has provided a different address, the CE should update the case record in the case management system.
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13. Actions Based on Form CA-1032 Responses. Information received in response to any of the questions posted on Form EN-1032 may require the CE to adjust or terminate compensation, and possibly initiate overpayment proceedings. Follow-up action in response to an outstanding issue on Form EN-1032 should be taken promptly (until the issue is resolved) in order to avoid or minimize any improper payment.
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14. Suspension of Compensation. If a timely report of earnings is not made, the right to compensation for wage loss is suspended until the report is received. See 20 CFR §10.528. Likewise, entitlement to augmented compensation may be suspended (i.e., compensation may be reduced from 75% to 66 2/3%) if OWCP does not receive a timely response to a request for information concerning eligible dependents. See 20 CFR §10.536.
If the claimant fails to return Form EN-1032 within 30 days, the CE should first examine the file to determine whether extenuating circumstances exist (for example, the claimant is hospitalized or has just moved and had no time to notify the office). The CE should also verify whether the form was sent to the correct address.
a. If extenuating circumstances are not present and benefits are being paid for other than a schedule award, the CE should act to suspend compensation entirely, since no report of either earnings or dependents (if any) will have been received.
If extenuating circumstances are not present and a schedule award is being paid, only the entitlement based on dependents will be at issue. The CE need not act to suspend augmented compensation if some recent communication (a letter from the claimant or information from the student's school, for example) appears in the file showing that the claimant has at least one eligible dependent.
b. If extenuating circumstances apply or the form is received but not substantially completed, the CE should advise the claimant of the information which is still required and indicate that, unless a fully completed form is received within 30 days, benefits will be suspended.
c. Before effecting the suspension (whether of all compensation or of augmented compensation), the CE should send a narrative letter to the claimant which explains the basis of the action and notes the regulatory authority for it. The letter should state whether a report of earnings, a report of dependents, or both, are lacking and cite the date of the previous request. The letter should also advise the claimant that benefits will be restored retroactively once the necessary information is received (as long as it supports continuing payment). The decision should include appeal rights.
d. Fiscal Action. Benefits should be suspended effective the beginning date of the next periodic roll cycle. No deductions for Health Benefits (HB) and/or Life Insurance (LI) will be made during the period of suspension.
e. If the requested information concerning earnings and/or dependents is received, the CE should act promptly to restore benefits. Compensation should be reinstated retroactive to the effective date of suspension where the evidence submitted supports the payment of benefits, and should include retroactive deductions for HB and/or LI premiums, as needed.
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15. Periodic Entitlement Review (PER) Codes. Codes used for documenting periodic entitlement review actions are documented by the CE in the Entitlement Review application in Disability Management (DM). PER action codes are noted below.
The PER action codes entered into the Entitlement Review application indicate development undertaken and the result of the entitlement review. Development actions taken as a result of the PER review should also typically be documented in the DM Tracking application in DM, especially if the development is medical in nature. Some final actions taken as a result of the PER review should also be entered into DM Tracking, such as termination and suspension actions.
a. PER Development Codes are entered in the PER record when further action is required prior to closing the PER. If the CE has to develop the case for any reason, the CE should place the PER record into a development status by selecting an appropriate code as outlined below. In order to use a development code, a case-specific action should be taken corresponding with the date of the code.
AI |
Payment/Entitlement Adjustment in Development |
b. PER Closure Codes are entered in the PER record when the periodic review is complete. The evidence in the case file should substantiate the code selected as outlined below:
EA |
Payment/Entitlement Adjustment |
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16. Disability Management (DM) Status Codes. DM codes are used to document actions taken during disability management, such as sending a letter to a physician or scheduling a second opinion examination. DM codes are also used to document a "resolution" in a PRM case, such as a termination of benefits or a finding that the evidence of file substantiates the current level of entitlement.
DM codes are used to document actions that may coincide with the development undertaken as a result of a PER review or a final PER action. Note, however, that a PER action or closure code will not always coincide with a DM status code. The PER application is distinct from DM Tracking, each serving a unique purpose.
There are DM status codes to reflect reduction of compensation, suspension of compensation, termination of compensation, and no change in entitlement. Not all DM status codes, however, count as a successful PRM resolution. For a complete explanation of DM coding, see FECA PM Chapter 2-0601.
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2-0812 Exhibit 1: PN Memo Example
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PN Memorandum to the File |
Issue: The issue is whether the case should be placed in a "PN" status, since the claimant has no wage-earning capacity or re-employment potential for the indefinite future.
Requirements for Entitlement: In order for the case status to be updated to PN, the medical evidence must demonstrate that the accepted medical condition(s) has reached maximum healing or that no further improvement is anticipated. Additionally, the file must reflect that the claimant has no wage-earning capacity due to the severity of the claimant's medical condition and/or vocational prospects in the claimant's commuting area.
Background: The claimant, born 03/08/1949, was employed as Border Patrol Agent with the U.S. Department of Homeland Security. On 07/25/2002, the claimant was injured when he lifted a tire from the bottom of a stack and then slipped and fell, hitting his head. The claimant was unconscious for 45 minutes and hospitalized for several weeks. The claim was accepted for a herniated disc L4/5 without myelopathy, cervical herniated disc C4/5, and closed head injury. The claimant has not returned to work. He has had two work-related surgeries for his cervical condition and a lumbar fusion.
A request for an updated medical report was sent to the attending physician, Dr. John, on 06/10/2009. No response was received. It was determined that a second opinion evaluation was necessary. The appointment was scheduled for 08/21/2009 with Dr. Henry, a neurologist. Prior to the appointment, the physician was provided with a copy of the medical records on file, a Statement of Accepted Facts, and specific questions to answer. Dr. Henry provided a thorough and well-rationalized report. He opined that the claimant continues to suffer from a herniated disc in the cervical spine and failed back syndrome as a result of the spinal surgeries. Dr. Henry also indicated that the claimant continues to have severe cognitive deficits from the closed head injury. He may not return to work and continues to have severe physical restrictions as indicated on the OWCP-5.
Basis for Determination: Dr. Henry provided a well-rationalized, comprehensive opinion, including objective findings, and his opinion was based on an accurate history of the work injury. He provided a substantial, detailed discussion of his medical opinion. Based on Dr. Henry's report of 08/21/2009, the claimant is totally disabled due to the work injury, and his condition is not expected to improve.
Recommendation: The employee's wage-earning capacity has been considered, including the following factors: nature of injury, degree of impairment, usual employment, age, qualifications for other employment, and availability of suitable employment. The evidence of file establishes that the claimant remains totally disabled for all work, and his condition is not expected to improve. The case, therefore, should be placed in a PN status.
OPTION:
✓ A PCR code in Disability Management Tracking is also recommended, as the claimant continues to be entitled to the current level of benefits.
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1. Introduction, Purpose and Scope. The Office of Workers' Compensation Programs (OWCP) emphasizes returning partially disabled workers to suitable employment through vocational rehabilitation efforts.
When it appears that the claimant's work-related injury will prevent a return to the job held on the date of injury (DOI), vocational rehabilitation services may be provided to assist the claimant in returning to the workforce in suitable employment. OWCP will make every reasonable effort to arrange for employment of a partially disabled worker, taking into consideration not only the effects of the work-related condition and any condition(s) pre-existing the injury, but also any medical condition(s) arising after the compensable injury. It is critical to understand that return to work placement efforts with the claimant's previous employer are an essential part of the vocational rehabilitation process and that vocational rehabilitation does not consist only of testing, training and outside employment. Such rehabilitation efforts will be directed initially to the employing agency (EA), but if reemployment with the agency is not possible, OWCP will help the worker secure employment with a new employer. This may require OWCP to sponsor vocational training, if needed, to furnish the worker with the necessary skills to obtain other employment.
The Federal Employees' Compensation Act (FECA) allows the Office to direct a claimant to undergo vocational rehabilitation and to reduce, prospectively, the claimant's monetary compensation for refusal to do so.
This chapter explains the procedures for referring partially disabled workers for vocational rehabilitation services and describes the services which may be provided.
This chapter also addresses related topics such as restoration rights with the Federal government, medical rehabilitation and the effects of substance abuse, and what actions to take if the claimant elects benefits from the Office of Personnel Management (OPM) during the rehabilitation effort.
Lastly, this chapter explains the procedures for reducing monetary compensation when the worker fails to cooperate with the vocational rehabilitation effort, obtains new employment, or is unable to secure new employment.
Further information about vocational rehabilitation can be found in the OWCP Procedure Manual (PM), Part 3, Rehabilitation.
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2. Statutory, Regulatory and Program Requirements.
a. Statutory Requirements.
Section 8104 of the FECA provides that a permanently disabled individual may be directed to undergo vocational rehabilitation. The injured worker shall receive compensation while cooperating and participating in the rehabilitation process.
Section 8111 of the Act allows the Office to pay an individual undergoing vocational rehabilitation additional compensation necessary for maintenance, not to exceed $200 per month.
Section 8113 of the Act allows the Office to prospectively reduce compensation in accordance with a claimant's wage-earning capacity if he or she refuses, without good cause, to undergo vocational rehabilitation.
Section 8151 of the Act provides restoration rights for injured employees and is administered by the Office of Personnel Management.
b. Regulatory Requirements.
The Code of Federal Regulations discusses the vocational rehabilitation services provided at 20 C.F.R. §10.518. Additionally, the actions taken when the employee refuses to cooperate with vocational rehabilitation are discussed at 20 C.F.R. §10.519, and the method used for determining compensation after services are provided is discussed in 20 C.F.R. §10.520.
c. Program Requirements.
The Vocational Rehabilitation (VR) Program is comprised of a Rehabilitation Specialist (RS), who is located in the district office, and the Rehabilitation Counselor (RC), who is a certified counselor and works on a contractual basis in the district office's servicing area. The Claims Examiner (CE), with recommendations from the RS, is responsible for the management and overall direction of the case, even during the rehabilitation period.
A brief outline of the various roles is provided here, but more specific details pertaining to the different stages of vocational rehabilitation are provided throughout this chapter.
(1) The RS's responsibilities include, but are not limited to, the following: ensuring that there is a sufficient number of counselors to service the district office's needs; monitoring the RC's performance in correlation to both the contract specifications and the quality of service provided; assigning RCs to particular cases; reviewing RC reports for completeness and timeliness prior to authorizing payment of bills; communicating with the CEs regarding the cases assigned for VR services; relaying important or time sensitive information to the CEs so that action can be taken if needed; providing guidance to CEs on how to recognize when vocational services are necessary to assist the claimant with returning to work; serving as a vocational resource to the CEs; and providing solutions for return-to-work barriers in cases.
(2) The RC's responsibilities include, but are not limited to, the following: evaluating the claimant's vocational abilities and transferable skills; facilitating employment placement including with the previous employer; arranging for vocational testing and training; overseeing Occupational Rehabilitation Plans; conducting labor market surveys; formulating a vocational re-employment plan; assisting the claimant with job-seeking skills such as resume building and interview techniques; arranging for specialized ergonomic job modification services; and making recommendations to the RS and CE if a particular barrier is hindering the return-to-work effort.
(3) The CE's responsibilities include, but are not limited to, the following: referring appropriate cases for rehabilitation services; evaluating medical determinations in cases; responding to requests from the RS or RC; reviewing rehabilitation plans for medical suitability; issuing warning letters if non-cooperation occurs; and issuing notices of proposed actions and formal decisions pertaining to a claimant's entitlement to compensation.
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3. Compensation Entitlement during Vocational Rehabilitation.
a. Compensation for Wage Loss. Section 8104 (b) of the FECA provides that an individual undergoing an OWCP-approved rehabilitation program is entitled to receive compensation at the rate for total disability, less any earnings received from employment which is not undertaken as a specific part of the rehabilitation program.
b. Retirement Benefits. A claimant may not receive vocational rehabilitation services simultaneously with retirement benefits from the Office of Personnel Management (OPM). However, a claimant may not use the retirement process to avoid the obligation to undergo vocational rehabilitation when directed by OWCP.
c. Schedule Awards. If a claimant requests a schedule award while participating in vocational rehabilitation, development of the award should proceed. Payment of the award, however, should usually be deferred until the completion of rehabilitation, since often a claimant will opt to receive OPM benefits concurrently with a schedule award, and concurrent receipt of OPM and OWCP benefits is prohibited during a period in which vocational rehabilitation services are being provided.
If a claimant is already receiving compensation for a schedule award while in rehabilitation, he or she should continue receiving those benefits unless the claimant is also receiving an annuity from OPM, in which case the claimant should be advised that he or she cannot be provided with vocational rehabilitation services while receiving an OPM annuity. The claimant should be offered an election, and if he or she elects OWCP benefits, the schedule award payments should be converted to payments for temporary total disability until completion of the rehabilitation effort. If the claimant elects OPM benefits, the schedule award benefits should continue and medical and factual development should be undertaken to determine the claimant's Loss of Wage-Earning Capacity (LWEC) at the end of the schedule award, but vocational rehabilitation efforts should be terminated. See paragraph 18 below for further direction when a claimant elects OPM benefits.
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4. Restoration Rights with the Federal Government. Section 8151 of the FECA provides civil service retention rights to Federal employees who have recovered either fully or partially from an employment-related injury or illness, and who can perform the duties of the original job or its equivalent. The EA must restore a permanent employee (i.e., one with career or career-conditional status) who recovers within one year after beginning compensation to that position or its equivalent. This provision does not apply to temporary or term employees. 20 C.F.R. §10.505 explains that the employer should make all reasonable efforts to place the employee in his or her former or an equivalent position in accordance with 5 U.S.C. 8151 if the employee has fully recovered after one year. 20 C.F.R §353.301 provides an overview of restoration rights for fully recovered and partially recovered employees.
OPM has jurisdiction and is responsible for enforcing this section.See Pedro Beltran, 44 ECAB 222 (1992) and Charles J. McCuistion, 37 ECAB 193 (1985) (claims for job reinstatement are not within OWCP's jurisdiction).
a. OPM's regulations on retention rights are published at 5 C.F.R. §302, 330 and 353. They require agencies to grant leave without pay (LWOP) to disabled workers for at least the first year the injured worker is receiving compensation.
b. An injured worker who has been terminated and who wishes to reclaim his or her job should be advised to contact the EA. If this effort fails, OWCP will contact the EA, citing 5 U.S.C. 8151 as the basis for the worker's attempt to regain employment. In addition, 5 U.S.C. 8151 (b) (2) and its implementing regulations provide for priority placement under certain circumstances. If this course is also unsuccessful, the injured worker may be advised to exercise his or her appeal rights as provided by OPM.
c. When an injured worker resumes employment with the Federal government, the EA is required to verify that the worker had been receiving compensation during the entire period of absence from work, whether in LWOP status or separated. The agency will ask OWCP to advise whether the worker was receiving compensation and, if so, the period of compensation during which the worker was paid, so that the injured worker may be credited with all rights and benefits based on length of service.
d. Issues pertaining to retention rights should be referred to the EA or OPM, and CEs should not offer claimants advice on these rights. It should also be noted that not all individuals covered by FECA are entitled to restoration rights.
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5. Referrals for Vocational Rehabilitation Services. The probability of effective rehabilitation, resulting in the best return-to-work arrangement, is greatly increased when such efforts begin as early as possible in the recovery process. This paragraph addresses the criteria and procedures for referring cases for vocational rehabilitation services.
a. The Claims Examiner (CE) should monitor cases for adequacy of the medical reports in reporting work capacity and ensure that the reports are current. Where a return-to-work date has not been given, but the medical evidence shows that the claimant is not totally disabled and the medical condition has stabilized, the CE, or Field Nurse (FN) if one is assigned to the case, will obtain a completed Form OWCP-5 (or equivalent) to show the work limitations.
If the attending physician cannot furnish work limitations, or if they appear inconsistent with those expected, the CE should initiate a second opinion referral (see FECA PM 2-0810).
If the attending physician has not released the claimant to work, the CE may also seek opinion regarding whether an Occupational Rehabilitation Program (ORP) would be appropriate, as outlined in paragraph 12 of this chapter.
b. The CE should ensure that the file contains the claimant's position description, including a report of the physical requirements, and any special psychological requirements if applicable, for the job held at date of injury. This information may be requested from the EA when the case is accepted, when the first compensation payment is issued to the claimant, or at any other time.
c. Criteria for Referral. If the current medical evidence indicates that the claimant has objective residuals of the work-related condition and has stable, well-defined work limitations which allow him or her to work 8 hours per day, the case should be referred for vocational rehabilitation services. If varying descriptions of work limitations appear in file, it may be necessary to weigh the medical reports and identify the physician's report that represents the weight of medical evidence. (A limited referral may be made for placement services when the claimant can work at least 4 hours per day. See paragraph j(1) below.)
Note - Prior to referral, the CE should review the medical evidence carefully to be sure that the claimant's work related condition is still present and disabling. The work restrictions on file should be reviewed in conjunction with the requirements of the date of injury job to determine if the claimant is capable of performing that position, prior to a referral for vocational rehabilitation. If the claimant's work-related condition has resolved, or he or she is capable of performing the duties of the date of injury position, the case should not be referred for rehabilitation services. Instead, a notice of proposed termination of wage loss and/or medical benefits should be issued. See PM 2-1400.
(1) Work restrictions should be current at the time of the initial referral. The medical evidence can be from the attending physician, second opinion examiner, or referee physician. The evidence should clearly establish that the claimant has stable and well-defined residuals. While the restrictions do not have to be on Form OWCP-5, work limitations from the accepted employment conditions that prevent the claimant from returning to the job held at the time of injury should be set forth in sufficient detail in terms of limitations and capabilities for an assessment of rehabilitation/work readiness to be made.
(2) The claimant should be capable of at least sedentary work, as defined by the Dictionary of Occupational Titles, or OWCP-determined equivalent, (including, pushing, pulling, and lifting at least 10 pounds, one-third of the work day, etc). If placement with the previous employer is not possible, the claimant should be capable of working on a full-time basis. A limited referral for part-time placement with a new employer may be considered in those labor markets with sufficient part-time work in the commuting area. See paragraph j(1) below.
(3) When the referral is made, the CE may advise the claimant by letter what the CE considers the claimant's restrictions and capabilities to be and which physician's opinion represents the weight of medical evidence and why. If work restrictions were provided by a second opinion or referee physician, the CE should identify the weight of the medical evidence by completing a memo to file or addressing it clearly in the letter to the claimant. If the second opinion or referee narrative report and OWCP-5 appear to contradict each other (e.g., the narrative report indicates sedentary work, but the OWCP-5 indicates less than sedentary), the CE should clarify this inconsistency with the physician prior to assigning weight to that particular report and making the referral for vocational rehabilitation services.
(4) There should not be any outstanding medical issues, work-related or non-work-related, precluding participation in the rehabilitation effort. If there are non-work related conditions apparent in the file, any restrictions resulting from those conditions should be clarified prior to referral.
However, if the claimant's only other disabling condition is a non-work condition that post-dates the work injury, you may consider a limited referral for the purposes of establishing a constructed wage-earning capacity (WEC). See paragraph j(3) below.
d. The FN may recommend a vocational rehabilitation referral at the end of nurse services. A referral may also be desirable if the claimant has not collaborated with or fully benefited from nursing services.
e. Active FN cases may also be referred for dual tracking. The referral in these cases will be for Medical Rehabilitation and the period will usually be limited to 3 months for concurrent services. In these cases, the restrictions may not be completely defined. As a result, full plan development cannot begin immediately with these claimants, but, in the interest of expediting the return to work, the RC may assist with work hardening and functional capacity evaluation scheduling and begin the groundwork for the development of a return-to-work plan by obtaining the claimant's work history, performing preliminary labor market surveys, and conducting a transferable skills analysis.
The FN will focus on the medical aspects of the case, and the RC will focus on the vocational aspects of the case. Once the claimant has stable and well-defined restrictions, nurse intervention will cease and the RS will direct the RC to begin actual plan development. Refer to FECA PM 2-0600-8(c) and 2-0600-9(e) for further information on the dual tracking of cases.
f. The FN or CE may also recommend a task based rehabilitation referral in conjunction with FN services. For instance, if vocational testing, an ergonomic evaluation, or assistive technology would enable the employing agency to offer a job to the claimant or explore job opportunities for placement in another departmental position, the FN or CE may recommend a dual assignment for this purpose.
g. To identify cases for early intervention, the Rehabilitation Specialist (RS) may use reports which list unscreened cases on the periodic roll, or cases closed after nurse intervention. The RS will notify the CE of cases which appear appropriate for rehabilitation services, including Occupational Rehabilitation Programs (ORPs). Unless there is a medical reason that the case is not in posture for referral, the CE should refer the case for rehabilitation services.
h. Cases in which rehabilitation services were previously terminated for reasons which are either unclear or no longer pertinent may be referred as long as the claimant is able to work 8 hours.
i. Making the Referral. The CE refers cases for vocational rehabilitation services using Form OWCP-14 (or equivalent). The referral should include:
(1) The accepted conditions in the case, as well any accepted conditions in other FECA files that are pertinent with regard to medical restrictions. Other significant non-work related conditions should also be noted.
(2) The name of the attending physician.
(3) The physician's name and date of medical report which represents the weight of medical evidence.
(4) The date on which disability (or recurrent disability) began, to identify the one-year time frame for placement with the previous employer.
(5) Any medical or adjudicatory action which is in process or imminent (e.g., second opinion examination or referral for investigation).
(6) Whether or not the CE authorizes the RS or RC to contact the attending physician directly. The CE may authorize such contact when it will not potentially disturb the weight of medical evidence concerning work limitations. However, the CE should not authorize such contact when work tolerance limitations have been established by a second opinion or referee examination.
(7) The gross amount of compensation the claimant is awarded each week and the pay rate on which this amount is based.
(8) When the case is being referred on a limited basis, the CE should include the nature of the limited referral, the CE's assessment of the situation, and the desired action from the RC. See paragraph j below.
(9) An indication if Field Nurse (FN) services are active and the reasons for continued FN service (e.g., a remaining medical issue is still being resolved).
(10) An indication as to whether or not the agency has specifically indicated that placement services with the previous employer are inappropriate.
Once the referral has been completed and made a part of the case record, the CE should send a Vocational Rehabilitation referral to the RS via iFECS, which will automatically populate the appropriate code in the iFECS Disability Management (DM) record. See PM Chapter 2-601 for more details on DM Coding.
j.Limited Referrals. If the claimant is only able to perform part-time or sub-sedentary work, or could otherwise engage in active vocational rehabilitation services but for a non-employment-related condition which post-dates the injury, a limited referral for vocational rehabilitation services may be appropriate.
(1) For claimants who cannot work 8 hours per day, a referral may be made for placement services with the previous employer. Placement with a new employer may be considered in those labor markets with sufficient part-time work in the commuting area. If later medical evidence demonstrates an improvement in medical status, attempts to establish the claimant's ability to work a full day should be pursued.
(2) An Occupational Rehabilitation Program (ORP) may be appropriate when the specific work limitations are unknown or sub-sedentary but there is an expectation that a short period of medical rehabilitation will result in restrictions which can be used for a return to work. The CE may refer the claimant for an ORP when the physician prescribes a functional capacity evaluation, work hardening, or any other therapy program aimed at exploring work capabilities and documenting work restrictions. See paragraph 12 of this chapter for more information on ORPs.
(3) Where the weight of the medical evidence establishes that the claimant could work in at least a sedentary capacity due to the work injury, but is more severely restricted from work due to a non-employment-related condition which post-dates the injury, the CE should document the file with medical evidence that establishes the claimant's work tolerance limitations based on the accepted work-related conditions and any pre-existing conditions. Whether a condition is considered a pre-existing condition should be determined by the date of first medical treatment for the non-employment-related condition as documented in the file.
The CE should identify the non-employment-related condition(s) which arose after the work injury and indicate that any resulting restrictions need not be taken into consideration when identifying positions which represent the claimant's wage-earning capacity. A referral will be made solely for the purpose of determining the claimant's capacity to earn wages in the open labor market based on the restrictions attributable to the work injury and any pre-existing medical conditions.
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6. Placement with Previous Employer (PPE). Once a case has been opened in vocational rehabilitation for return-to-work efforts, the RC will work with the EA to modify the claimant's DOI job or identify another position within the agency (or department) which the claimant can perform, unless the agency has already indicated that reemployment with the agency is not possible.
a. Roles and responsibilities. In order for placement with the previous employer to be successful, active participation of the claimant, RC, and OWCP staff, as well as the EA, is crucial.
(1) Role of the RS. Within 5 business days of receiving the referral, the RS should take the following actions:
(a) Refer the claimant to an RC to address PPE, ensuring that the RC understands the need to reach a decision concerning employability within one year after wage loss began (or recurred) due to the claimant's retention rights, as described in paragraph 4 of this chapter;
(b) Contact the previous employer to discuss prospects for re-employment, including the use of assistive technology to facilitate work; and
(c) Advise the CE that the case has been opened via Form OWCP-35 or other file documentation.
Once the case has been referred, the RS should advise the CE if the claimant refuses to cooperate with vocational rehabilitation services. The CE will then need to review the case for possible sanctions as described in paragraph 17 of this chapter.
(2) Role of the RC. Working under the guidance of the RS, the RC provides counseling and guidance to the claimant to make sure that he or she understands the process and associated responsibilities. The RC maintains regular contact with the claimant and the previous employer to elicit job offers compatible with the work limitations identified by the CE. The RC may give the employer assistance in preparing a job description and identifying equipment which may be needed in order for the claimant to perform the specific duties of an offered position. As necessary, the RC may also arrange for job site analysis, vocational testing, and/or vocational evaluation to help the previous employer identify placement possibilities.
The RC may be asked to contact the district office after the first visit
with the claimant so that all pertinent parties can discuss the rehabilitation effort. The RC may also participate in scheduled conferences.
(3) Role of the CE. The CE responds to any requests for medical documentation and determines suitability of any job offer that is made. If the claimant fails to cooperate or refuses a suitable job offer, the CE promptly issues a warning letter (see paragraph 17 of this chapter) and follows up to ensure compliance or issues a final decision with regard to the job offer.
(4) Role of the claimant. Claimants must be flexible and realistic regarding adjustments needed in the return-to-work effort, such as changes in shifts, salary, new work environment, etc. They are required to cooperate with efforts to find a suitable position with their EA and provide medical documentation when needed.
b. Time Frames. The RS will approve PPE for up to 90 days, with a 30-day extension when necessary, if the previous employer is making active, good-faith efforts to place the claimant.
(1) If the employer has shown no interest by the 30th day of PPE efforts, vocational testing and planning should begin while the RC continues contact with the employer.
(2) If no job offer is developed by the 85th day, or it seems apparent that there is no real interest in formulating a job offer, the RC will make a final contact with the previous employer to assess its interest in extending a job offer. If a job offer is not forthcoming, or there is no interest in developing such an offer, the RC will so notify the RS by telephone.
c. Interruptions. PPE may be interrupted or extended beyond 120 days when surgery, the need for medical treatment, or a change in work limitations warrants. Either the CE or the RS may identify such situations. If the RS advises the CE that a delay or extension of PPE seems appropriate, the CE should promptly notify the RS whether he or she agrees with this assessment. The CE should also notify the RS when PPE efforts should resume.
d. Outcomes.
(1) If the claimant returns to work with the previous employer, the RC will follow the claimant for at least 60 days after placement and submit a final report. The RS will advise the CE by OWCP-3 (or equivalent) of the outcome of PPE effort. The CE should then review the case to determine whether a formal LWEC decision is appropriate, even if the LWEC is 0%. If the job does not reflect the claimant's maximum wage-earning capacity in terms of duties performed and hours worked, the CE should continue to monitor the case.
(2) If the EA provides an offer of suitable employment, but the claimant does not return to work, the CE should review the case for application of sanctions in accordance with 8106(c). See PM 2-814.
(3) If the EA does not provide an offer of suitable employment, the CE and RS will need to take the next appropriate action in the vocational rehabilitation process. In these types of cases, the RC will usually be asked to develop an alternative plan, based on vocational testing, which may include medical rehabilitation, training, and/or placement services for a new employer.
If the claimant cannot work 8 hours per day, the RS may interrupt services until a full-time schedule is feasible. The CE may also need to obtain additional medical opinion or a recommendation for an occupational rehabilitation plan from the attending physician, or take some other action to increase the claimant's level of readiness to seek work with a new employer. At this stage of the re-employment effort, it is not appropriate to refer the case back to an FN for additional action. The RS and RC should supervise any occupational rehabilitation program or similar effort.
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7. Plan Development. If efforts to return the claimant to work with the EA are not successful, then the RC will need to develop a plan for the claimant's return to work with a new employer. During this phase of rehabilitation, the RC will identify jobs that are medically and vocationally suitable and reasonably available in the claimant's commuting area.
In some cases, plan development will be the initial phase of vocational rehabilitation, and in others it will follow services that were aimed at placement with the previous employer. If plan development is the initial phase, then the RC will need to conduct the initial interview. This interview will help the RC establish a rapport with the claimant, allow the RC to provide information about the rehabilitation process, and provide an opportunity for the RC to gather background information from the claimant that is necessary for a reemployment plan, such as employment history and educational background. If services were already provided for placement with the previous employer, the initial interview will already have been conducted.
Regardless of when plan development occurs in the vocational rehabilitation process, the services provided and the method of providing them are the same. The evidence and documentation submitted to support the plan, and the responsibilities of all parties involved, remain constant.
a. Selecting Jobs for the Reemployment Plan. Suitable jobs are identified by the RC while developing the reemployment plan. A number of factors are considered, including medical and vocational suitability and whether the jobs are reasonably available in the claimant's commuting area.
(1) Medically Suitable. All jobs targeted in the reemployment plan have to be medically suitable. The established restrictions are compared to the physical requirements of each position as listed in the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles or other guidance such as the DFEC Physical Demand and/or Environmental Condition Definitions. See Exhibit 1 (Physical Demand Definitions) and Exhibit 2 (Environmental Conditions Definitions). The job requirements must not exceed the claimant's work abilities. See paragraph 5 of this chapter (Referrals for Vocational Rehabilitation Services) for more details about the medical documentation needed for a reemployment plan.
(2) Vocationally Suitable. The RC's documentation also should support that the targeted positions are vocationally suitable. If job placement will occur immediately after plan approval, then the claimant must be capable of performing the identified jobs at the time of plan development. Vocational suitability can be established through a transferable skills analysis and vocational testing. If the proposed reemployment plan calls for training, then the evidence should establish that the claimant will have the vocational skills for the targeted jobs following training. In both cases, the claimant's skills and training are compared to the specific vocational preparation requirements as described in the Dictionary of Occupational Titles, or OWCP-determined equivalent.
(3) Reasonable Availability. Reasonable availability needs to be established for each position targeted in the plan. The RC uses professional experience and knowledge of the job market to document that the jobs which are medically and vocationally suitable for the claimant are also available in sufficient numbers to make successful placement reasonable. The RC will conduct a survey of the local labor market and document availability of targeted jobs by citing sources such as the local State employment service, the local Chamber of Commerce, employer contacts, and actual job postings. This research will also be used to establish salary information for the targeted jobs. The concept of "reasonable availability" does not necessarily equate to actual current job openings, which are dependent on the current economic climate. If the position is performed in sufficient numbers within the commuting area, it is considered to be "reasonably available."
b. Elements of a Vocational Reemployment Plan. There are a number of elements that the RC needs to ensure are included when plan approval is requested.
(1) Injured worker factors which affect the plan need to be documented. The claimant's medical status and resulting restrictions should be reviewed in this section. Additionally, any social factors which may affect plan success, such as family support, should be mentioned. Lastly, the results of any vocational testing should be discussed.
(2) Plan goals. At least two different medically and vocationally suitable jobs should be identified. A completed Form OWCP-66 is provided for each position that lists the job description according to the Dictionary of Occupational Titles, or OWCP-determined equivalent, and the physical requirements per the Selected Characteristics or other guidance such as the DFEC Physical Demand and/or Environmental Condition Definitions. See Exhibit 1 (Physical Demand Definitions) and Exhibit 2 (Environmental Conditions Definitions). Current starting salary information should also be provided on this form and the source should be documented.
(3) Documentation of job availability in the form of a labor market survey should be included with the plan. In addition to the sources mentioned above, the RC may include additional information such as an industrial survey or a specific number of actual employer contacts.
(4) Plan justification and recommendation. The plan should describe the specific actions which are to be taken by the injured worker, the RC, and other professionals or facilities to reach the stated goals, along with an estimate of the time and the costs required. If training is recommended, the difference between the injured worker's earning capacity with and without training should be discussed.
There should also be a document which establishes that the claimant agrees with the plan as evidenced by his or her signature. This can be accomplished via a document created by the RC (such as an Individual Placement Plan) or via Form OWCP-16 if the plan will require additional funds beyond the amount initially approved by the RS. The plan should list the specific actions to be taken by the claimant and the RC that are necessary to reach the plan goals and provide time frames and estimated costs associated with these goals.
c. Roles and responsibilities. The successful development of a plan for reemployment requires the active participation of the claimant, RC, and OWCP staff.
(1) Role of the RS. The RS actively supervises the development of the plan and ensures the submission of monthly reports, as well as adherence to time frames. The RS issues guidance to the RC if the rehabilitation effort is not proceeding appropriately. Once the plan has been submitted, the RS reviews and approves it or returns it if the identified jobs are not suitable or the plan lacks the necessary documentation. Any extension requests should be reviewed by the RS.
(2) Role of the RC. The RC should be responsive to the RS's guidance, submit a complete and well-supported plan in the time allotted, and refrain from initiating the planned services without the approval of the RS. The RC should immediately report any non-cooperation to OWCP. The RC will maintain regular contact with the claimant, schedule any needed testing, and counsel the claimant. The RC has up to 90 days to submit a vocational rehabilitation plan and should request an extension before this period expires if there are extenuating circumstances.
(3) Role of the CE. The CE responds to any requests for medical documentation. If the claimant fails to cooperate with plan development, the CE promptly issues a warning letter (see paragraph 17 of this chapter) and follows up to ensure compliance or issues a final decision for continued non-cooperation. When the RS approves the plan, the CE has 5 business days to review the plan and make a determination on the medical suitability of all targeted positions. Once the plan has been approved by all parties, the CE should send a plan approval letter to the claimant.
(4) Role of the claimant. The claimant is expected to cooperate with efforts to develop a reemployment plan. This includes responding to phone calls from the RC, appearing for scheduled meetings, providing needed background information, undergoing vocational testing, and being willing to explore new occupations outside of the Federal government. In addition, the claimant cannot refuse to sign a suitable vocational rehabilitation plan without justification. For training plans, it is mandatory that the claimant sign Form OWCP-16 to indicate full understanding and agreement. Failure to sign the form is considered non-cooperation on the claimant's part and may require initiation of sanctions. (Refer to paragraph 17 of this chapter.)
d. Time Frames. The RC has up to 90 days to submit a vocational rehabilitation plan. If there are extenuating circumstances, an extension should be requested before that period expires. After the RS approves the plan, the CE should review the plan and make a determination on the medical suitability of all targeted positions within 5 business days.
e. Once the plan is approved, the CE should send a plan approval letter to the claimant, and the RS will direct the RC to move on to the next phase of vocational rehabilitation. If training was a part of the approved plan, that will be the next phase. Otherwise, the RC and claimant will move directly to job placement.
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8. Training. A training program should be considered before placement with a new employer, if there is reason to believe that placement will not be accomplished without training. A training plan may also be considered if the claimant is a good candidate and training will significantly reduce the difference between the current salary of the job held on the date of injury and the salary in new employment with training, as compared to employment following direct placement without training.
After determining the claimant's job skills by completing a transferable skills analysis and vocational testing, the RC will review the claimant's medical restrictions and research the local job market in order to determine the claimant's employment prospects. If placement cannot reasonably be accomplished based on the claimant's current experience and aptitudes, then training may be considered.
Any proposed training program must fit the injured worker's abilities and limitations and must prepare the claimant for jobs that are available in the local labor market. The cost of the proposed training plan should be easily justifiable in view of the resulting increase in the claimant's wage-earning capacity. The claimant's motivation level and likelihood of success in the proposed training should also be considered. The claimant's personal desire to pursue a particular type of training is not the primary factor to consider when assessing training options.
If training is needed, short-term or pre-vocational training that would serve to upgrade basic skills are the preferred options. Long-term training plans should be pursued as a last resort, since returning the claimant to work in the shortest time possible is a primary focus of vocational rehabilitation.
a. Types of training. The type of training provided will depend on the above mentioned factors.
(1) Pre-vocational training is short-term and serves to upgrade basic skills such as literacy, but is not necessarily aimed at a specific occupation. For example, a GED preparation course and test would be considered pre-vocational training; or a several-week course that upgrades basic computer skills needed for many office jobs. Pre-vocational training can either prepare claimants for jobs existing in the labor market or can prepare them for more in-depth training.
(2) Formal training courses, or refresher courses, can be provided through business or trade schools, colleges, apprenticeship programs, tutoring, etc. Formal training can be provided for professional, semi-professional, technical, clerical, agricultural, skilled or semi-skilled occupations.
(a) Short-term training should be considered first because it is likely to be more cost-effective and requires less of a commitment from the claimant. A certification program requiring several months of training is preferable to a multi-year degree program. If the claimant has skills or a degree in a particular field such as the health field but has not maintained the required certifications or licensure, a refresher course may be considered.
(b) Longer-term training, such as college training, should only be considered if the claimant shows exceptional ability and there is a great probability of employment with minimal or no loss of wage-earning capacity upon completion of the program.
(3) On-the-job training is another option for increasing the employability of the claimant. The program should have a well-defined period and be expected to lead to employment. There should be a written agreement with the employer which identifies the skills that the claimant will gain from this training. Any salary paid to the claimant during this training should also be listed on the agreement.
Assisted Reemployment, as outlined in paragraph 10 of this chapter, should also be considered in conjunction with a training plan.
b. Roles and responsibilities. The successful completion of a training program requires the active participation of the claimant, RC and OWCP staff.
(1) Role of the RS. The RS is responsible for ensuring that an appropriate facility is selected for the approved training and that the necessary approval documentation is issued. The RS will monitor RC reports and training documentation. If the RC communicates any instances of non-cooperation by the claimant, the RS will report this to the CE promptly so that appropriate action can be taken.
(2) Role of the RC. The RC assists the claimant with registration and obtaining the needed supplies for approved training. The RC provides guidance and counseling during training and maintains contact with the claimant at regular intervals. If needed, the RC can interact with the training institution and other parties to resolve any issues which arise. The RC also obtains transcripts, certificates, or other documentation of successful training progress and completion.
(3) Role of the CE. The CE reviews RC's reports and monitors the claimant's progress in training. If non-cooperation occurs, the CE issues the appropriate warning letters and sanction decisions. See paragraph 17 of this chapter for more information on non-cooperation. Any medical issues which arise during training should be addressed and resolved by the CE.
(4) Role of the claimant. The claimant should have been made aware of what is expected during training because his/her responsibilities are laid out when the plan is developed. The claimant is required to be responsive to RC communication and to show up for any scheduled meetings. During training, the claimant is also expected to maintain a "C" average in all classes and provide documentation of grades, certificates, etc. Regular attendance is required at all approved training programs.
c. Time Frames. The length of the training phase will vary depending on the type of training pursued.
d. At the completion of the approved training plan, the claimant will be provided with 90 days of placement services.
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9. Placement with New Employer (PNE). Placement New Employer is the phase of vocational rehabilitation during which an injured worker is provided services aimed at obtaining work with a different employer, other than the original EA, usually in the private sector (though another federal employer may also be an option). PNE services may be offered when no training has been conducted or after an approved training plan has ended. It is the phase of vocational rehabilitation where the actual job search is implemented in accordance with the approved vocational rehabilitation plan that was created in Plan Development.
a. Services offered during this phase include, but are not limited to:
(1) Assistance with developing a resume.
(2) Counseling on proper interview appearance and behavior.
(3) Provision of job leads.
(4) Assisted reemployment funds, when appropriate. See paragraph 10 of this chapter for more information on Assisted Reemployment.
b. Roles and Responsibilities. Like all other phases of vocational rehabilitation, in order for placement with a new employer to be successful, active participation by the claimant, RC, and OWCP staff is crucial.
(1) Role of the RS. The RS oversees the implementation of the approved placement plan, ensuring that all aspects are in accordance with OWCP standards and procedures. This includes the following:
(a) Managing the RC by evaluating progress and requesting changes in the plan, as necessary.
(b) Reviewing reports and bills submitted for reimbursement.
(c) Acting as a mediator, should differences arise between the RC and the injured worker.
(d) Communicating any instances of non-cooperation or other factors that may impede the return-to-work effort to the CE.
(2) Role of the RC. The RC is responsible for providing job search services to the claimant, which may include the following:
(a) Providing job leads to the claimant and contacting potential employers on behalf of the claimant.
(b) Actively assessing the claimant's job search and identifying obstacles and problems the injured worker is having with his or her search; providing constructive counseling and guidance to assist the claimant in overcoming these obstacles.
(c) Counseling the claimant about interview appearance and behavior; conducting mock interviews or videotaped practice interviews to help the claimant develop interviewing skills.
(d) Assisting with resume writing and tailoring it to particular jobs.
(e) Ensuring the claimant is complying with the placement efforts by following up on job leads provided and appropriately participating in scheduled interviews.
(f) Promptly reporting any non-cooperation to the RS while continuing to provide placement services for the allotted 90 days. The RC should counsel the claimant on the importance of reemployment and the possible consequences of failure to do so. The RC should make sure that the claimant understands his or her responsibilities in the placement phase.
(g) Recommending assisted reemployment benefits, when appropriate.
(3) Role of the CE. The CE participates in this phase in the following ways:
(a) At the beginning of placement new employer, the CE should advise the claimant that OWCP will provide 90 days of placement assistance and that his or her LWEC probably will be based on the job for which placement is being attempted. The 90 days is calculated from the date of the OWCP-3 (or equivalent) approving placement with a new employer.
(b) The CE should monitor the claimant's return-to-work progress and promptly respond to requests for intervention from the RC and RS throughout the 90 days of placement services.
(c) If new medical evidence is provided by the claimant, the CE needs to evaluate it promptly and notify the RS if there is a change in the weight of the medical evidence that affects the vocational rehabilitation efforts currently in progress.
(d) Arranging for a conference with appropriate parties if it is determined that one would be helpful.
(4) Role of the Claimant. The claimant is required to cooperate fully with the RC and adhere to the approved rehabilitation plan by:
(a) Being responsive to the RC. This includes returning phone calls, appearing for scheduled meetings, and responding to requests for information.
(b) Performing all job search activities presented by the RC. This can include contacting the job leads provided, keeping a log of job search activities, attending job fairs, scheduling and attending interviews, and other related activities.
c. Time Frames. The PNE phase usually lasts for 90 days. This period may be extended, if agreed upon by the CE and RS, if the claimant is motivated and granting such an extension is likely to lead to job placement.
d. Upon completion of placement services, one of two things will occur. If the claimant has obtained a job through placement, the vocational rehabilitation effort will move to Employed status and the RC will follow the claimant's progress for 60 days to ensure a successful return to work. If the claimant fails to obtain employment, the CE will issue a pre-reduction notice for a constructed loss of wage-earning capacity.
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10. Assisted Reemployment. Assisted reemployment is a subsidy, used during PNE, designed to encourage employers to choose qualified rehabilitated workers whom they might otherwise not hire.
Disabled Federal workers with skills transferable to jobs within the general labor market may prove difficult to place due to economic factors in both the Federal and private employment sectors. Assisted reemployment is designed to increase the number of permanently disabled employees who successfully return to the labor force by providing wage reimbursement to potential employers.
a. General Provisions.
(1) Assisted reemployment will allow for up to three years of partial reimbursement of salaries to employers, other than the original employer, who reemploy disabled FECA claimants. The program allows reimbursement, on a quarterly basis, to the new employer of salary paid to the claimant up to 75% the first year, up to 50% the second year, and up to 25% the third and final year.
(2) These wage subsidies to the employer plus the LWEC payment to the claimant shall never exceed the amount of compensation which would be paid to the claimant if there were an absence of employment. Similarly, if basic compensation is being paid, i.e., the claimant has no dependents, the subsidy rate may not exceed 66 2/3 percent.
(3) Should compensation be terminated (e.g., because work-related disability ceases), wage subsidies to the employer should also be discontinued.
(4) The RS and RC will consider jobs which correspond to the claimant's educational background and employment history.
(5) The CE will ensure that the employment under consideration conforms to the medical limitations imposed by the residuals of the work injury and any concurrent conditions.
b. Cooperative Agreement. Once an employer has agreed to hire the claimant under this program, a cooperative agreement between OWCP and the new employer must be drawn up and signed by the RS. The title of the job, the job duties, the salary to be paid, and the wage subsidy rate will all be specified in a cooperative agreement.
c. Approval.
(1) Concurrence of CE. The CE should review the job offer to be sure it meets the following elements:
(a) The offer must be in writing;
(b) It must conform to the claimant's work limitations and be suitable within the meaning of Section 8106(c) of the FECA; and
(c) It must support an LWEC rating, i.e., the earnings must fairly and reasonably represent the claimant's wage-earning capacity.
The CE must concur with the cooperative agreement, and this concurrence should be documented in the case file. If the CE agrees with the Assisted Reemployment subsidy, the cooperative agreement should be forwarded to the District Director for review.
(2) Approval of the District Director. The cooperative agreement and CE's concurrence will be reviewed by the District Director. If the District Director approves the subsidy, the approval should be reflected in the file. Assisted reemployment cannot commence until the agreement is approved by the District Director.
d. Payment of Compensation.
(1) To eliminate the possibility of an overpayment, the CE should remove the case from the periodic roll as soon as the beginning date of work is known.
(2) Any additional entitlement to compensation on the basis of temporary total disability should be paid on the daily roll until the employment commences.
(3) If the claimant is entitled to compensation on the basis of a LWEC after returning to employment, the CE should set up payment using the Shadrick formula. After the claimant has successfully worked for 60 days, the CE should review the case to issue a formal LWEC decision (including formal findings of no LWEC).
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11. Employed. If a claimant finds employment with either the previous employer or a new employer, the vocational rehabilitation effort moves to Employed status in order to ensure that the claimant successfully works the position for 60 days. This phase allows OWCP to provide follow-up services, in recognition that this initial period is a period of readjustment and often determines the success or failure of the rehabilitation effort.
The RC should contact the claimant at the end of the first day, first month, and second month on the job to check on the adjustment to the workplace and the position. The RC should remain available to the claimant to assist with the readjustment by providing counseling and support.
During the Employed phase, the RC will obtain all documentation pertaining to the new position, such as the name and address of the employer, the job title, the Dictionary of Occupational Titles code (if applicable), the starting date, hours per week, etc. If the claimant does not want the RC to follow up with the new employer regarding job information and/or the claimant's return to work, all information must be obtained from the claimant.
The RC should notify the RS immediately when any situation arises that jeopardizes the claimant's successful return to work. The RC should provide counseling and work with the claimant and the employer (if authorized by the claimant) to solve the problems. The RC can provide services such as job site analysis, ergonomic assessment, and the provision of adaptive equipment during this phase. If the claimant and employer arrive at an impasse, the RC may recommend a conference call with OWCP staff to resolve any issues surrounding the new position.
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12. Medical Rehabilitation. Medical Rehabilitation refers to those medical and related services necessary to correct, minimize or modify the impairment caused by a disease or injury so that the injured worker can return to an adequate level of function and employment. Thus, it is distinguished from actual medical treatment to cure or relieve the effects of the injury.
a. Various medical services can be provided during this phase:
(1) Intensive services provided in catastrophic claims. This can be done in coordination with the FN and can include setting up home health care, arranging for medical transport, etc.
(2) Functional Capacity Evaluations (FCE), work hardening, or any other physical therapy program aimed at producing work tolerance limitations. These are also referred to as Occupational Rehabilitation Programs (ORP). These programs should only be provided as part of vocational rehabilitation services if there is an expectation that they will lead to restrictions which can then be used for a return-to-work effort. FCEs can be offered outside of vocational rehabilitation under FN direction or CE case management. See part b in this section for more information on ORPs.
(3) Speech therapy, orthotics, prosthetics, or other assistive devices that would make the claimant employable.
(4) Psychiatric counseling, drug addiction counseling, pain management clinics. OWCP may approve treatment for addiction to drugs (legal or illegal) that is not specifically work-related, if the addiction is impeding the claimant's return to work. See paragraph 16 of this chapter for more information on substance abuse during vocational rehabilitation.
Aside from drug addiction treatment, OWCP is not responsible for medical costs associated with conditions unrelated to the work injury. Nevertheless, the RC may still encourage the claimant to seek treatment.
(5) Housing and vehicle modifications can be provided under the vocational rehabilitation program. See FECA PM 2-1800, Housing and Vehicle Modifications, for further details.
b. Occupational Rehabilitation Programs. Services which help the injured worker return to work through the use of abbreviated workdays or altered job duties are known as Occupational Rehabilitation Programs (ORPs).
(1) Kinds of ORPs. There are two kinds of ORPs.
(a) Return-to-work (RTW) ORPs are intended for claimants who were injured more than 60 days ago, have not worked for at least 30 days, and are returning to a particular job and employer with defined duties, including transitional duties. RTW ORPs are highly structured, job oriented, goal-directed, individualized, and interdisciplinary. They are intended to maximize the claimant's ability to return to work. Real or simulated work activities are used in conjunction with graded conditioning tasks to aid the transition between acute care and return to work.
(b) Work Readiness (WR) ORPs are used when no specific job is available with a known employer. Services provided have the potential to improve the claimant's work options. They are designed to evaluate and treat the claimant's physical, behavioral, and vocational functions. These programs include real or simulated job-specific work tasks with modifications. The WR ORP uses many of the tests, evaluations, and restorative services used in the RTW ORP, but the job skill requirements under this category are less well defined. The goal in most cases is to maximize potential job options rather than prepare for a specific job. Sometimes, however, the goal is to document the claimant's job potential, and/or measure ability to improve physical tolerance, productivity, and work behavior.
(2) Referral for ORPs. CEs should refer cases meeting the criteria stated in paragraph 5 of this chapter to the RS for an ORP assessment. The RS may also initiate an ORP placement. Also, the RS will notify the responsible CE in any case already open for vocational rehabilitation which, in his or her opinion, may benefit from this type of service.
(3) Initial RS Actions. The RS opens for rehabilitation those cases referred by the CE that meet the basic criteria. The RS refers the case to a RC for a screening interview and the scheduling of a FCE to determine the type and nature of the ORP most suited to the claimant's needs.
(4) Authorization of ORP. When the FCE is completed, the RS authorizes the kind of ORP most suitable for the claimant. Once the claimant is enrolled in the ORP, the RS notifies the treating physician, employer (when available), the RC, and the CE that the program has been authorized.
(5) Obstacles to Completion. Medical or other issues which could delay or terminate the ORP, such as the emergence of non-work related conditions, recurrences, complaints of high levels of pain, etc. must be reported immediately to the RS and CE. When the ORP is interrupted, the RC notifies the RS immediately, carefully detailing the reason(s) for the interruption. The RS communicates this fact to the CE and recommends an appropriate course of action based on the circumstances of the case.
(6) Outcomes. The following outcomes are based on the results of a completed ORP:
(a) Where the claimant cannot perform the duties of the previous employment or the targeted jobs, the RS may place the case in Plan Development, with the concurrence of the CE, to consider other rehabilitation solutions.
(b) Where the claimant can perform the duties of the date of injury job, the RS should notify the CE immediately.
(7) Reports. The ORP facility must submit at least two reports. The FCE report is the basis for the ORP program plan. The final report should contain the following:
(a) The present and potential status of the claimant for each of the elements reported in the FCE or the ORP plan, including the positive or negative changes that have occurred during the program, as well as information on the claimant's attendance, efforts, attitude, and general condition.
(b) Specific information on the vocational and functional status of the claimant and relationship to the targeted job(s) and fitness for return to work.
(c) Any issues related to work site safety, accommodations, ergonomics, transportation, etc.
(d) Any additional relevant information, such as recommendations for maintenance of work capacity, improvement in functional status, considerations for alternative occupations, and need for continued monitoring and support.
c. Medical rehabilitation services can be offered at any time in the life of a claim if they are deemed appropriate. The rehabilitation effort may begin with this phase if an FCE is scheduled and there is an expectation of work restrictions at the end. On the other hand, if a claimant requires drug addiction counseling after the rehabilitation effort has already begun, this phase could follow placement efforts with the previous employer or even plan development.
d. Ideally, medical rehabilitation leads to the identification of work restrictions that can be utilized for a return-to-work effort. However, depending on the reason for referral, there can be several outcomes from medical rehabilitation.
(1) If medical rehabilitation is utilized for coordination of care in catastrophic injuries or for coordinating housing or vehicle modifications, then the rehabilitation efforts will be closed once these services have been provided.
(2) If the medical rehabilitation services result in work restrictions which can be used for a return-to-work effort, then the case will either move to Placement or Plan Development.
(3) If the period of medical rehabilitation occurred during an approved plan and the resulting work restrictions do not rule out the jobs previously targeted, then the rehabilitation effort can resume in whatever stage is appropriate. If new restrictions result, a new rehabilitation plan may be needed.
(4) If medical rehabilitation fails to result in work restrictions that can be used for a return-to-work effort, the rehabilitation file should be closed or, if deemed appropriate by the RS and CE, placed in Interrupt status.
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13. Interrupt. During vocational rehabilitation intervention, issues may arise which can be resolved in a relatively short period of time. Instead of closing the vocational rehabilitation file, there are options which allow the RC to remain active in the claim while other interventions are undertaken.
Interrupt status is used when rehabilitation action is suspended temporarily but is expected to resume in a short time, e.g. a delay until a training course begins, recovery from surgery, etc.
In order for the RS to consider this status, there must be a significant probability of eventual rehabilitation, the postponement should generally be expected to last six months or less, and any changes in the claimant's medical condition must be reviewed with the CE.
a. When a case is placed in Interrupt status, the RC will maintain regular but limited contact with the claimant. Substantial services will not be offered because of limitations on the allowable hours for the RC to work on the case. If services are appropriate, another phase must be considered.
b. If the reason for the interruption is medical in nature, a determination must be made by the CE and the RS whether medical rehabilitation is appropriate. (See paragraph 12 in this chapter.)
In instances where medical rehabilitation is not appropriate, such as the need for the CE to schedule a referee examination to resolve a medical conflict, then the Interrupt status will end as soon as the medical issue is resolved. The case will either move into a rehabilitation phase which offers services or be closed, depending on the outcome of the medical management of the claim.
c. A case may be placed in Interrupt status if a training plan is approved but there is a delay before school begins. As soon as the approved training program begins, the case will move from Interrupt status to the Training phase.
d. Interrupt status should not last for more than six months. At that time, the CE and the RS should review the case and determine whether further services are warranted or rehabilitation closure is appropriate.
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14. Communication Among the CE, RS, RC, and Claimant.For rehabilitation efforts to be successful, the CE, RS, RC, and claimant must have frequent and clear communication.
a. Cooperative Effort. Communication pertaining to any issues relevant to rehabilitation should flow between all parties as needed. Rehabilitation is a team effort that includes the claimant, CE, RS, and RC.It is essential for all members of this team to remain informed of the progress of the case throughout the course of rehabilitation.
The CE should receive periodic reports from the RS on Form OWCP-3 (or equivalent) whenever the status of rehabilitation changes or a significant event occurs.While a vocational rehabilitation program may last for several months or more than a year, counselors are required to report monthly or bimonthly, depending on the phase of vocational rehabilitation efforts.It is imperative that the CE stay informed of the progress by reading the RC reports.Since late RC reporting requires RS action, the CE should request a status report from the RS at any point the CE is aware that the RC reporting is delinquent, or there is a question about the current status.Often this can be done in person, or by sending a short memo to the RS. The CE and RS should be in active communication if it is unclear why the rehabilitation process has exceeded the time frames set forth in the previous paragraphs of this chapter.
The CE and RC are encouraged to discuss issues as needed, but they must remember to include the RS in, or inform the RS of, the discussion.An important limitation to keep in mind is that it is the responsibility of the RS, not the CE, to direct RCs to change vocational rehabilitation statuses, and to approve or terminate services.
b. Change in Medical Status during Vocational Rehabilitation.The work tolerance limitations identified by the CE to the RS may change during the vocational rehabilitation effort; if this happens, the CE should advise the RS of the change as soon as possible.The RC may contact the claimant's physician and discuss the work limitations, if authorized by the CE directly or through the RS.If the physician recommends a change in work limitations, whether stricter or lighter, the RC should submit these work limitations to the CE through the RS.It is the CE, and not the RS or RC, who determines the accepted work limitations.It is important that the CE evaluate any new medical evidence and advise all parties of the current weight of medical evidence in the case or the need for additional medical development.See paragraph 15 of this chapter for more information on managing medical issues during vocational rehabilitation.
c. Non-cooperation. The RC should notify the CE and RS of any instances of non-cooperation so that the CE may act promptly.See paragraph 17 of this chapter for more information on the procedures for responding to instances of non-cooperation.
d. Conferences.A conference is an especially useful tool to bring multiple parties together to resolve issues, and is an excellent tool to discuss, coordinate and move cases forward in the rehabilitation process. This can occur when issues arise unexpectedly that could possibly delay or derail the process, or at set points during the rehabilitation process when a conference can help facilitate understanding, resolve misunderstandings, or provide information where a dialogue would be more productive.
Since it is critical to keep all parties informed, and to ensure that all parties hear the same information at the same time, any rehabilitation-related conference should usually include the RS and/or the RC.(The only exception to this is if the CE chooses to conduct a conference just prior to the rehabilitation referral to help the claimant understand what to expect in a general way once the referral is made).Even if the RS or the RC is not present at the conference, the absent party should receive a copy of the subsequent conference documentation.See FECA PM 2-0500 for a discussion of formal conferences and 2-0600-12 for a discussion of informal conferences.
Situations that can benefit from a rehabilitation-related conference, though not limited to these topics, are:
(1) Initial referral: to explain the process to the claimant in a general way.
(2) Job Offer: if a job offer is pending and the claimant has not signed the offer or returned to work, or the claimant indicates concerns with the offered position.
(3) Training plan:if concerns have arisen regarding the viability of the plan or the willingness of the claimant to fully participate; or if the plan being considered is greater than $20,000.While rare, it is important to conduct a conference when considering such a costly plan to help determine whether the claimant has intentions of fully participating with the end goal of obtaining employment.
(4) Medical concerns:any time medical issues arise that have the potential to delay or derail full participation.The earlier these issues are addressed, the more effective rehabilitation can be.
(5) Non-cooperation: to explain to the claimant the responsibilities and consequences for non-cooperation.This occurs in conjunction with a warning letter, if warranted.
(6) Placement:at or near the time when placement services start, in order to explain to the claimant the process and the services available through placement.The conference can also be used to explain what will occur at the end of placement, whether or not a job is obtained (see FECA PM 2-0814).
(7) Employment:if the claimant accepts a position which does not accurately reflect his or her wage-earning capacity (such as accepting part-time work when capable of full-time employment).
(8) Retirement/OPM election: whenever the claimant brings this issue up, so the CE can assess the claimant's intentions and explain the process and the claimant's rights, responsibilities, and consequences if non-cooperation occurs prior to an election of OPM benefits.
e. Change in Case Status. The CE should notify the RS by short memo of any change in case status, such as the termination or suspension of compensation, or any information in the record which may directly affect the rehabilitation effort (e.g., medical evidence establishing no work-related residuals).The RS will then provide guidance to the RC.
f. Inquiries from Claimants.Claimants will sometimes query the RS or the RC about matters in the domain of the CE, such as compensation entitlement or medical authorization.Similarly, the CE may receive inquiries about vocational rehabilitation matters.Both rehabilitation and claims personnel are responsible for referring the claimant to the proper individual when issues arise which are not in the domain of the party addressed.No attempt should be made to address questions outside one's own area of expertise and responsibility.
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15. Managing Medical Issues During Rehabilitation. When a case is in vocational rehabilitation, many different types of medical issues may arise throughout the process which can impede the rehabilitation effort on a temporary or long-term basis. Although the vocational professionals (RC and RS) play an important role in the rehabilitation effort, medical issues are within the purview of the CE. Since a claimant may provide new medical documentation to an RC which may impact the rehabilitation program, it is important that all parties communicate with one another during the vocational rehabilitation effort to quickly and efficiently resolve outstanding medical issues.
a. CE Responsibilities. The CE has overall charge of the case and makes decisions based on the medical evidence of record and the professional recommendations of the RS and RC.
(1) Once a case is referred to vocational rehabilitation, the CE should continue to monitor the medical evidence and medically manage the claim. The CE should advise the RS immediately if there is a change in the claimant's medical status, particularly if it will have an impact on the vocational rehabilitation effort.
(2) The CE should read RC reports and query the RS if the reports demonstrate that the RC is focusing on vocational goals which do not appear to be in line with the claimant's medical limitations.
(3) The CE should promptly address medical issues raised by the RS, RC, or injured worker which will delay the development or continuation of a rehabilitation plan. In particular, the CE must act quickly when impediments to rehabilitation are reported. Examples of this include a change in the claimant's work restrictions or the development or treatment of a concurrent condition which interferes with the rehabilitation process.
(4) The RS and RC will generally not supervise extensive medical programs, with the exception of ORPs and substance abuse programs. Therefore, it is the CE's responsibility to monitor and promptly develop the medical evidence, as appropriate, including any changes in work limitations, changes in the weight of the medical evidence, the acceptance of consequential or additional medical conditions, or the scheduling of second opinion and/or referee medical examinations.
b. RC Responsibilities.
(1) The RC should immediately notify the CE and RS if the claimant indicates a change in his or her medical condition.
(2) The RC should provide the CE and RS with a copy of any new medical documentation that the claimant provides, paying particular attention to medical evidence that may change the established work tolerance limitations and the direction of the rehabilitation effort. Under certain circumstances the RC may contact the claimant's treating physician to discuss work limitations in order to expedite any necessary clarification needed to move forward. However, it is ultimately the CE who determines whether changes to the accepted work tolerance limitations are warranted based on the medical evidence of record.
(3) The RC should notify the CE and RS of any instances of non-cooperation based on medical issues so that the CE may act promptly to resolve potential impediments to the rehabilitation process.
c. RS Responsibilities.
(1) The RS should monitor RC reports for changes in the claimant's medical status and inform the CE, via OWCP-3 memo, a Rehabilitation Action Report, or similar documentation, if clarification of the medical evidence is needed at any time during the rehabilitation effort.
(2) The RS should provide guidance to the RC on how to handle a change in the claimant's medical status. Since the CE is the final authority on the weight of medical evidence, the RS must counsel the RC to ensure that the RC does not unnecessarily stall the rehabilitation effort unless the CE has determined that the new evidence establishes a significant change to the work tolerance limitations.
(3) The RS should promptly communicate to the CE any medical issues raised by the RC so that action may be taken to resolve such issues as quickly as possible.
d. Urgency of Actions. The rehabilitation effort could be delayed unnecessarily if the CE does not address and resolve medical issues quickly and thoroughly. The CE should act promptly to resolve issues identified by the RS or RC that are impeding the rehabilitation effort. Such issues include, but are not limited to, the following: the claimant's medical situation (work-related or non-work-related) appears to have changed significantly, or the claimant stops work after being reemployed because of a change in medical condition brought on by the return to work.
e. Effectively Resolving Medical Issues. The RS must defer to the CE on medical issues, and make sure that the RC does the same, in order to avoid creating conflicts in the medical evidence.
(1) Work limitations will be provided to the RC (or obtained in the course of an ORP) and should be used as a basis for planning the rehabilitation effort. Unless specifically authorized to contact the attending physician by an indication on the referral, the RC must refer any questions about work limitations to the CE.
(2) If the injured worker reports a recurrence of disability, introduces more severe restrictions, or provides other medical information (e.g., pregnancy, the need for physical therapy or other treatment, the emergence of a non-work-related medical condition or surgery) which would ultimately affect the rehabilitation plan, the RC should tell the injured worker to provide a medical report, and notify the district office. Rehabilitation should proceed on schedule unless the CE agrees that the medical situation has changed. If this occurs, the CE and RS can discuss whether to interrupt the rehabilitation effort or begin medical rehabilitation (see paragraphs 12 and 13 of this chapter).
(3) The CE should appropriately develop any questions regarding the nature and extent of injury-related disability, work limitations, or medical treatment plans with the attending physician, or a second opinion or referee specialist, if necessary, until a resolution is obtained. Formulation of direct and appropriate medical questions to the appropriate medical provider is crucial to this effort.
(4) If a second opinion or referee examination is arranged during the vocational rehabilitation effort, the CE should advise the RS. Also, the CE should immediately advise the RS of any change in the weight of medical evidence, as it affects work limitations or injury-related disability.
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16. Effects of Substance Abuse. Inappropriate use of drugs, whether legal or illegal, may complicate recovery from other medical conditions and hinder a claimant's return to work. Substance abuse may come to light from medical reports, contacts with the FN or RC, or through direct communication with the claimant. Actions to be taken, regardless of whether the Office has accepted it as work-related, are outlined below.
a. Treatment. Where substance abuse or addiction prevents a claimant from entering a vocational rehabilitation program, continuing with such a program once it has begun, or returning to work, the RC or RS may recommend participation in a drug treatment plan. The CE (not the RS or RC) is responsible for authorizing such care where necessary based on the medical evidence of record (e.g., the recommendation of the attending physician).
Such a program may be approved even if the Office has not accepted the substance abuse as related to employment.
(1) Ordinarily, inpatient care will be limited to a one-time 28-day stay at a reputable facility, though in unusual circumstances additional inpatient care may be authorized (see FECA PM 3-0400). The facility selected should be within 25 miles of the claimant's residence wherever feasible.
(2) Outpatient treatment may be recommended by itself or as a follow-up measure to inpatient care. Such treatment may be authorized when recommended by the attending physician, as may medications prescribed to alleviate the effects of addiction. Likewise, counseling in a group setting may be undertaken at OWCP expense.
b. Effect on Vocational Rehabilitation. The CE, or the RS on request of the CE, should advise the claimant of the terms of the referral before treatment begins. In particular, the claimant should be notified that non-completion of the program, or continued abuse of the substance after the treatment ends, may result in suspension of compensation benefits under 5 U.S.C. 8113 at the salary level of the job which is the goal of the vocational rehabilitation plan. Any suspension of benefits will continue until the claimant reenters a program and/or discontinues use of the substance.
If the effort is not successful, the claimant's compensation should be determined in accordance with paragraph 17 of this chapter, according to the claimant's status in the vocational rehabilitation process.
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17. Non-Cooperation and Sanction Decisions. Section 8104 of the FECA provides the authority for OWCP to direct an individual to undergo vocational rehabilitation, and section 8113 allows the Office to prospectively reduce compensation in accordance with a claimant's wage-earning capacity if he or she refuses, without good cause, to undergo vocational rehabilitation. The sanction remains in effect until the individual in good faith complies with the rehabilitation effort.
20 C.F.R. §10.519 prescribes what action OWCP will take if an employee refuses to undergo vocational rehabilitation. If a suitable job has been identified, OWCP will reduce compensation "…based on the amount which would likely have been his or her wage-earning capacity had he or she undergone vocational rehabilitation." If a suitable job has not been identified, "…in the absence of evidence to the contrary, OWCP will assume that the vocational rehabilitation effort would have resulted in a return to work with no loss of wage-earning capacity, and OWCP will reduce the employee's compensation accordingly."
A claimant may fail to cooperate with vocational rehabilitation efforts in various ways. General examples of non-cooperation include lack of response to letters or phone calls from the RS or RC; failure to show up for appointments, interviews, or testing (e.g., vocational testing, functional capacity evaluation) arranged by the RC; and failure to attend an approved training program.
The RC must fully document any non-cooperation on the part of the injured worker and submit reports to the RS for immediate handling. The RS will inform the CE via OWCP-3 (or equivalent) of the claimant's non-cooperation. When an injured worker refuses or impedes the rehabilitation process, the CE must intervene (e.g., issuance of warning letter, conference call, or both). The type of intervention depends on the current stage of the vocational rehabilitation effort.
a. Refusing or Impeding Placement Previous Employer. An RC may be asked to work with the EA to determine if the agency will be able to identify work within the injured worker's limitations.
If the claimant impedes the rehabilitation process prior to a job being offered, the CE will treat this as non-cooperation with the rehabilitation process. Examples of this include failing to meet with the RC, refusing to show up for a scheduled FCE, etc.
If the injured worker refuses or impedes the rehabilitation process during this early phase, and the medical evidence indicates that the claimant does have the ability to work, the CE should issue a letter to the injured worker, advising that failure to cooperate with the vocational rehabilitation effort will result in a reduction of monetary compensation benefits. This letter should provide the claimant with 30 days to begin cooperating with the vocational rehabilitation effort or show good cause for refusing to cooperate. Release of this letter satisfies the requirement to issue a pre-reduction notice to the claimant.
If 30 days have passed since the warning letter was issued and no response is received, or if the injured worker does not begin or resume a good-faith effort to cooperate, the CE should issue a formal decision reducing compensation to zero under 5 U.S.C. 8113(b) and 20 C.F.R. §10.519(c), which states in part that "…in the absence of evidence to the contrary, OWCP will assume that the vocational rehabilitation effort would have resulted in a return to work with no loss of wage-earning capacity, and OWCP will reduce the employee's compensation accordingly."
If an offer of suitable employment has been made and the claimant refuses to accept the position, this is not failure to cooperate with vocational rehabilitation efforts. This is failure to accept a suitable job, subject to sanctions under section 8106 of the FECA. The CE should refer to FECA PM 2-0814 for appropriate action to take in this situation.
b. Refusing or Impeding Plan Development. Specific instances of non-cooperation during this phase of vocational rehabilitation include: failure to appear for the initial interview; failure to attend meetings with the RC; failure to undergo an FCE, including failure to put forth optimum effort during the FCE; failure to undergo vocational testing and other work evaluations, including lack of response or inappropriate response to directions during testing; and failure to respond to the RC's telephone calls or written notices. Non-cooperation also includes failure to begin or continue pre-vocational training, such as English lessons for those who lack command of the language, or classes for a General Equivalency Diploma (GED) for those without a high school education.
If the claimant is in plan development and the file contains the documentation needed in order to make a determination on the claimant's wage-earning capacity, compensation should be reduced based on the claimant's ability to earn wages at the time of the sanction decision. If the CE is unsure about whether the evidence of record is sufficient, the RS should be requested to provide a recommendation on the claimant's WEC based on the evidence of record.
If this documentation is not yet of record and/or the RS is unable to provide it, then the compensation should be reduced to zero.
In either case, the CE will release a letter to advise the injured worker to begin or resume a good-faith effort to cooperate with the RS, or show good cause for refusing, within 30 days. (See e. below regarding evaluating reasons for non-cooperation.) This letter also satisfies the requirement to provide a 30-day pre-reduction notice.
c. Refusing or Impeding Training. Specific instances of non-cooperation during this phase of vocational rehabilitation include: failure to attend classes; failure to apply appropriate effort to succeed in such classes; failure to maintain a "C" average; and failure to undergo training after a training program has been approved.
If the claimant refuses or impedes rehabilitation training, the CE shall notify the injured worker, in writing, of the provisions of 5 U.S.C. 8113(b) and direct the injured worker to apply for, participate in, or resume participation in the training program. The letter should advise the injured worker to comply or provide a written explanation of his or her failure to comply within 30 days, or the provisions of 5 U.S.C. 8113(b) will be applied and benefits will be reduced based on the jobs targeted in the approved training plan. This letter satisfies the requirement to provide a 30-day pre-reduction notice.
d. Refusing or Impeding Placement New Employer. When placement efforts with a new employer are to begin, the CE should advise the injured worker by letter that OWCP will provide 90 days of placement assistance and that at the end of that 90-day period his or her WEC will be based on either (1) earnings from the new position; or (2) earnings for the job for which placement was attempted. (The 90 days is calculated from the date placement services begin as documented by the RS.)
It is important to note that non-cooperation with vocational rehabilitation during the placement stage does not generally result in a sanction decision under 5 U.S.C. 8113(b). If non-cooperation occurs during placement, the RS should request that the RC submit a final report and list the jobs for which placement was being attempted (i.e., provide updated labor market surveys, if necessary, including current pay information). Continuing placement services for the full 90-day period is not required if the claimant has not cooperated. Upon receipt of this information, the CE should prepare a pre-reduction notice determining the injured worker's WEC prospectively pursuant to 5 U.S.C. 8115 [not 8113(b)] based on one of the selected positions. This notice should be completed within 30 days of receipt of the OWCP-3 (or equivalent) from the RS, verifying that the selected positions are available in sufficient numbers. After considering any response to the pre-reduction notice, the CE should issue a final decision, if appropriate.
If the injured worker elects OPM benefits in lieu of cooperating with the vocational rehabilitation effort, the final decision reducing compensation based on prospective earnings must still be issued (see paragraph 18 of this chapter). It is necessary for the CE to establish the level of compensation entitlement in accordance with 5 U.S.C. 8115 so that any future, retroactive compensation will be paid at the proper established WEC instead of at the rate for total disability. The WEC decision will stand unless the injured worker meets one of the three valid reasons for WEC modification (see FECA PM 2-0814).
e. Evaluating Reasons for Lack of Cooperation. Given the variety of reasons which injured workers may offer for non-cooperation, and the variety of circumstances in which these reasons may be offered, it is impossible to establish a definitive list of acceptable and unacceptable reasons for lack of cooperation. In general, however, the injured worker is expected to treat the vocational rehabilitation effort as seriously as employment, and reasons for lack of cooperation should be considered in this light. A situation which would be considered a valid reason for absence from work (e.g., an illness) may be considered good cause for failure to cooperate with vocational rehabilitation for a reasonable period of time.
The specificity of the reasons offered and the injured worker's diligence in advising the RC of the problem should also be considered in evaluating reasons offered. Moreover, the CE must consider how much the specific instance(s) of failure to cooperate will affect the overall success of the vocational rehabilitation effort.
The injured worker may cite a change in his or her medical condition as a reason for not cooperating. In this situation, the CE should act promptly to resolve any potential medical issues that may affect the vocational rehabilitation effort (see paragraph 15 of this chapter).
f. Issuing Sanction Decisions under 5 U.S.C. 8113(b). As noted earlier in this section, the appropriate sanction for refusing a suitable job offer from the previous employer comes under 5 U.S.C. 8106, and the appropriate decision for a claimant who refuses or impedes rehabilitation during the placement new employer (PNE) phase is a rating of the claimant's WEC under 5 U.S.C. 8115. Otherwise, sanctions for failure to cooperate in the rehabilitation process come under 5 U.S.C. 8113 (b), discussed below.
Note: Decisions issued under 8106(b) and 8115 are different in that promises of "cooperation" after one of these decisions will not alter the final decision once it has been issued, and the grounds for reversal of those decisions are based on suitability of the job under 8106 and whether the WEC under 8115 should be modified.
Decisions issued under 5 U.S.C. 8113(b) can be affected if the claimant demonstrates cooperation after the decision is issued. If 30 days have passed since the warning letter was issued and no response is received, or if the injured worker does not begin or resume a good-faith effort and fails to provide good cause, the CE shall issue a formal decision reducing compensation under 5 U.S.C. 8113(b). Application of sanction decisions under 5 U.S.C. 8113(b) will result in suspension or reduction of compensation unless, and until, the claimant demonstrates cooperation with vocational rehabilitation efforts. This is true even when the next opportunity for actual cooperation will not occur for several months and the injured worker has stated that he or she will, in fact, comply with OWCP's requirements.
The decision should be tailored to the specific stage of the vocational rehabilitation process (e.g., plan development or training) and it should address the following:
(1) The nature of the specific failure or impedance;
(2) The contacts or dialogue among all parties, including the injured worker, the RC, the RS, the CE, and the vocational entity in question (e.g., the testing facility or company where the injured worker had an interview);
(3) The contents and date of the warning letter;
(4) Any reasons advanced by the injured worker for failure to cooperate. Each reason should be evaluated according to the criteria discussed in paragraph (e) above;
(5) An explanation why the injured worker's failure to cooperate was without good cause, and that either:
(a) The rehabilitation effort would have resulted in a return to work with no loss in WEC; or
(b) Cooperation with the rehabilitation effort would probably have substantially increased the injured worker's earnings.
The case status should remain PR, even if compensation is reduced, since no formal rating of the claimant's WEC has been issued.
If the injured worker later complies with the Office's direction to undergo vocational rehabilitation after a formal decision has been issued reducing compensation under Section 8113(b), compensation should be reinstated prospectively at the previous rate. Health benefits and life insurance coverage, if applicable, should be reinstated retroactively to the date of termination and the premiums due for the period of reduction should be deducted from the continuing compensation beginning with the date of reinstatement.
The effective date of reinstatement of the previous rate of compensation should be the date the injured worker indicates in writing his or her intent to comply. However, the intent to cooperate must be confirmed by the RS or RC (e.g., the injured worker has actually contacted the RC or RS to begin or resume vocational rehabilitation efforts, or has scheduled and/or attended interviews or testing, etc.) before compensation is reinstated.
g. Multiple Instances of Non-Cooperation. An injured worker who fails to cooperate with OWCP more than once during the course of the vocational rehabilitation process should not be rated for an LWEC (unless the criteria are met for an 8115 decision as noted earlier in this paragraph). Rather, he or she should be given progressively more serious sanctions for the second and subsequent instances of non-cooperation if he or she does not resume cooperation after issuance of a warning letter and good reasons for failure to cooperate are not provided.
Example: Early in January, the injured worker repeatedly, and without explanation, fails to appear for vocational testing, and, after appropriate warning and assessment of the response, compensation is suspended to zero at the end of February. In mid-March, the injured worker professes willingness to cooperate, and actually does undergo the testing as directed, beginning in April. The CE, as a result, reinstates compensation retroactively to mid-March, after the testing is completed.
A plan is developed, and OWCP approves a one-year training program for the injured worker to begin in September. The injured worker misses the deadline for registration, and, again, after appropriate warning and assessment of the response, compensation is reduced in October (at the rate for partial disability, reflecting the job for which the training program is to prepare the injured worker). In mid-November, the injured worker again expresses willingness to resume cooperation, but compensation is not reinstated until the CE receives confirmation that the injured worker has registered for the semester in January of the following year. The date of reinstatement of compensation (at the rate of total disability) is the date the injured worker registered for the course, not before.
In February, one month after school begins, the RC reports to OWCP that the injured worker has been absent from classes for two weeks without explanation. A warning letter is issued, but the injured worker does not reply to it, and compensation is once again reduced (to the partial disability rate) in March 2011. The injured worker immediately contacts OWCP, promises to resume attendance, and promptly does so. Instead of accepting the return to school as a demonstration of cooperation, however, OWCP determines that in light of previous instances of non-cooperation, the injured worker must complete the semester (which ends in April) before compensation payments are resumed (at the rate of total disability).
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18. Election of OPM (Office of Personnel Management) Benefits During Vocational Rehabilitation . OWCP is a return-to-work program and not a retirement program; however, if eligible, the claimant may have a right under law to choose retirement benefits in lieu of OWCP benefits (FECA PM 2-1000). When reviewing instances of non-cooperation in conjunction with an OPM election during the vocational rehabilitation process, it is important to focus on the behavior and level of non-cooperation. Sanctions may apply to the non-cooperative behavior but not to the choice to elect OPM.
a. A conference may be helpful any time retirement is brought up during the rehabilitation process. The CE should consider scheduling a conference to assess the claimant's actual intent, since many times the claimant may be simply exploring options. Other times the claimant may not understand that OWCP is a return-to-work program and not a retirement program. A conference provides the opportunity to create a plan of action for both the claimant and the CE. After the conference, an election offer should be issued if the claimant states this is his or her choice.
Despite issuing an election letter, the CE should pursue case management and rehabilitation to its logical conclusion. Sending the election letter does not guarantee OPM election. Until the claimant actually submits a signed election form choosing OPM benefits, he or she is required to participate fully in rehabilitation or be subject to the sanction process.
b. If the claimant continues to cooperate until the actual election form is signed and received by OWCP, the election is at the temporary total disability (TTD) amount.
c. If the claimant does not cooperate during the election process, any behavior which is deemed to be non-cooperation will be subject to sanctions pursuant to 5 U.S.C. 8113. A non-cooperation sanction under 5 U.S.C. 8113 may not be initiated once a claimant has officially elected OPM benefits. It may only be finalized following an OPM election if the warning letter was issued while the claimant was in receipt of FECA benefits.
If a sanction is applied prior to receipt of the actual election, the election is at the reduced amount pursuant to the sanction. When a warning is issued before the claimant elects OPM benefits, and the claimant continues to be uncooperative up to the point of the election, it is appropriate to issue the final sanction under 5 U.S.C. 8113, even if it is issued after the election is signed. In the decision, the CE should focus on the reasons that the claimant's behavior was determined to be non-cooperative and must document the selection of a zero or reduced LWEC rating, taking into consideration the claimant's condition and not the choice to elect OPM benefits.
If the claimant later decides through a subsequent election to resume OWCP benefits, he or she returns to OWCP at the zero or reduced rate (suspension amount) for the retroactive period and only at TTD prospectively at the point in which cooperation resumes (effective the date the injured worker indicated in writing his or her intent to comply).
Note: If the evidence warrants, the CE should consider issuance of a WEC in accordance with 5 U.S.C. 8115, rather than a sanction under 5 U.S.C. 8113. See below.
d. If the claimant fails to participate during Placement, the election is offered at the TTD amount with an explanation of the WEC decision to follow. The CE should then pursue resolution with a Notice of Proposed Reduction and a formal constructed LWEC decision pursuant to 5 U.S.C. 8115 with appeal rights.
Any future retroactive compensation, if the claimant later chooses to elect OWCP benefits once again, would be payable at the WEC rate. If a final WEC decision pursuant to 8115 is issued, it can only be modified for one of the three established criteria outlined in PM 2-0814.
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19. Possible Outcomes of Vocational Rehabilitation. The goal of the vocational rehabilitation effort is to ultimately return all injured federal employees to some form of gainful work, with the previous employer or in the private sector. However, there are times when vocational rehabilitation efforts are not successful and do not result in a return to work. In some situations, appropriate sanctions must be applied because the injured worker refused a suitable job or failed to cooperate with rehabilitation efforts (see FECA PM 2-0814 and paragraph 17 of this chapter). In other situations, the claimant's WEC must be determined on the basis of a position deemed suitable but not actually held. (See FECA PM 2-0814 for more specific details on issuing WEC decisions). No matter the situation, the CE should issue appropriate entitlement decisions whenever possible to complete the rehabilitation process.
a. Return to Work with the Previous Employer. When the employee cannot return to the DOI job because of disability due to the work-related injury or disease, he or she may return to alternative or limited duty employment with the previous employer. After the claimant has been working for 60 days, the CE should determine whether the claimant's actual earnings fairly and reasonably represent his or her WEC. If so, a formal decision should be issued within 90 days of the date of return to work.
b. Refusal of Suitable Work with the Previous Employer. Section 5 U.S.C. 8106(c) provides a severe penalty against workers who refuse offers of suitable work, or who abandon suitable work without good cause. After appropriate warning letters have been provided to the claimant, and the refusal of suitable work continues, the CE should prepare a formal decision which provides full findings of facts as to why claimant's reasons for refusing the job are deemed unacceptable and terminate compensation. Such a decision should not be modified even if the claimant's medical condition later deteriorates and he or she claims a recurrence of total disability.
c. Return to Work with a New Employer (other than the EA). Sometimes the claimant will return to work but not with the original employer. After the claimant has been working for 60 days, the CE will determine whether the claimant's actual earnings fairly and reasonably represent his or her WEC. If so, a formal decision should be issued within 90 days of the date of return to work. If not, the CE should consider whether a constructed WEC decision is appropriate.
d. Constructed WEC Decisions. If the claimant does not locate employment at the end of the vocational rehabilitation process, or if the claimant's actual earnings are not representative of his or her capacity to earn wages, further determination must be made based on the claimant's ability to work in a selected position. The test for making this type of decision is whether the claimant's WEC based on the selected job appears reasonable, giving due regard to the factors specified in 5 U.S.C. 8115 (i.e., the nature of the injury; the degree of physical impairment, including impairment resulting from both injury-related and pre-existing conditions; the claimant's usual employment; the claimant's age; qualifications for other employment, including education, previous employment, and training as well as work limitations imposed by the injury-related and pre-existing impairments; and the availability of suitable employment.)
e. Other Outcomes of Rehabilitation.
(1) Where rehabilitation services are under way and the CE determines that injury-related disability has ceased, it is proper to issue a pre-termination notice. As the claimant's response may overcome the initial determination to terminate compensation, OWCP should continue rehabilitation services during the notice period until a formal decision is issued. Pre-termination notices and formal decisions are discussed in PM Chapter 2-1400.
(2) Specific sanctions for non-cooperation with rehabilitation efforts may be applied as detailed in paragraph 17 of this chapter.
(3) The severity of the claimant's medical condition (work-related or non-work-related) may change or worsen during the rehabilitation process. If the medical limitations from the accepted injury-related condition(s) and any pre-existing medical condition(s) subsequently prohibit a return to all gainful employment, the CE's concurrence with the infeasibility of continued reemployment efforts is needed for closure of rehabilitation efforts.
(4) A claimant may elect OPM at any time during the rehabilitation process. The CE should consider the specific stage of the rehabilitation effort and refer to paragraph 18 of this chapter for detailed guidance concerning further actions that should be taken in each instance.
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2-0813 Exhibit 1: Physical Demand Definitions
DFEC has adopted the following definitions from the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (where applicable), which should be used when comparing the established work restrictions to the physical requirements of positions identified in the Dictionary of Occupational Titles. These definitions indicate the absence or presence and frequency of the physical demand components requested on the OWCP-5b and OWCP-5c.
1. STRENGTH LEVEL
Sedentary Work - Sedentary Work involves exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs may be defined as Sedentary when walking and standing are required only occasionally and all other Sedentary criteria are met.
Light Work - Light Work involves exerting up to 20 pounds of force occasionally or up to 10 pounds of force frequently, or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job/occupation is rated as Light Work when it requires: (1) walking or standing to a significant degree; (2) sitting most of the time while pushing or pulling arm or leg controls; or (3) working at a production rate pace while constantly pushing or pulling materials even though the weight of the materials is negligible. (The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.)
Medium Work - Medium Work involves exerting 20 to 50 pounds of force occasionally or 10 to 25 pounds of force frequently or an amount greater than negligible and up to 10 pounds constantly to move objects. Physical demand requirements are in excess of those for Light Work.
Heavy Work - Heavy Work involves exerting 50 to 100 pounds of force occasionally, or 25 to 50 pounds of force frequently, or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for Medium Work.
Very Heavy Work - Very Heavy Work involves exerting in excess of 100 pounds of force occasionally, or in excess of 50 pounds of force frequently or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for Heavy Work.
Limits of Weights Lifted/Carried/Pushed/Pulled
Rating |
Occasionally |
Frequently |
Constantly |
Sedentary |
* - 10 |
* |
N/A |
Light |
* - 20 |
* - 10 |
* |
Medium |
20 - 50 |
10 - 25 |
* - 10 |
Heavy |
50 - 100 |
25 - 50 |
10 - 20 |
Very Heavy |
100 + |
50 + |
20 + |
* = negligible weight; N/A = Not Applicable
The range excludes the lower number and includes the higher number, i.e., the range 10 - 25 excludes 10 (begins at 10 +) and includes 25.
Presence and/or Frequency of Other Physical Demands
This chart should be referenced to determine the frequency of demands for the remaining physical components of a given job.
Code |
Frequency |
Definition |
Max hrs./8 hr. day |
N |
Not Present |
Activity/condition does not exist |
0 |
O |
Occasionally |
Activity/condition exists up to 1/3 of the time |
2 hrs. 40 min. |
F |
Frequently |
Activity/condition exists from 1/3 to 2/3 of the time |
5 hrs. 20 min. |
C |
Constantly |
Activity/condition exists 2/3 or more of the time |
8 |
2. REACHING
Extending hand(s) and arm(s) in any direction, including overhead reaching or reaching above shoulder level.
3. TWISTING
Turning, twisting, contorting, or flexing the torso in any direction towards the right or left.
4. BENDING/STOOPING
Bending body downward and forward by bending spine at the waist, requiring full use of the lower extremities and back muscles.
5. OPERATING A MOTOR VEHICLE AT WORK
Driving any vehicle during the performance of one's duties.
6. REPETITIVE MOVEMENTS OF ELBOWS (HANDLING)
Seizing, holding, grasping, turning, or otherwise working with hand or hands using the whole arm.
7. REPETITIVE MOVEMENTS OF WRISTS (FINGERING)
Picking, pinching, or otherwise working primarily with fingers and wrists rather than the whole arm as in handling.
8. SQUATTING (CROUCHING)
Bending body downward and forward by bending legs and spine.
9. KNEELING
Bending legs at knees to come to rest on knee or knees.
10. CLIMBING
Ascending or descending ladders, stairs, scaffolding, ramps, poles, and the like, using feet and legs or hands and arms. Body agility is emphasized.
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2-0813 Exhibit 2: Environmental Conditions Definitions
The DFEC has adopted the following definitions from the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, which should be used when comparing the established work restrictions to the environmental conditions for positions identified in the Dictionary of Occupational Titles. These definitions indicate the absence or presence and frequency of the environmental components requested on the OWCP-5b.
Presence and/or Frequency of Environmental Condition Components
This chart should be referenced to determine the frequency of exposure to the listed environmental components.
Code |
Frequency |
Definition |
Max hrs./8 hr. day |
N |
Not Present |
Activity/condition does not exist |
0 |
O |
Occasionally |
Activity/condition exists up to 1/3 of the time |
2 hrs. 40 min. |
F |
Frequently |
Activity/condition exists from 1/3 to 2/3 of the time |
5 hrs. 20 min. |
C |
Constantly |
Activity/condition exists 2/3 or more of the time |
8 |
1. EXPOSURE TO TEMPERATURE EXTREMES
Exposure to outside atmospheric conditions and/or non weather-related hot and/or cold temperature.
2. EXPOSURE TO AIRBORNE PARTICLES
Exposure to such conditions as dusts, smoke, and poor ventilation that affect the respiratory system, eyes, or the skin.
3. EXPOSURE TO GASES/FUMES
Exposure to such conditions as fumes, noxious odors, mists, and gases that affect the respiratory system, eyes, or the skin.
4. EXPOSURE TO ELECTROMAGNETIC RADIATION
Exposure to electromagnetic radiation that affects cardiovascular devices.
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Chapter 2-0900, Determining Pay Rates |
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1. Purpose and Scope. This chapter addresses determination of pay rates for injured workers who meet the criteria as employees within the meaning of 5 U.S.C. 8101(1). It describes the steps for establishing pay rates, including the statutory basis of payment; the effective date of the pay rate; the elements of pay which are included in the pay rate, and those which are excluded; and how to establish daily, weekly, and monthly pay rates. The chapter also includes a section on special determinations (which are also addressed in various FECA Program Memoranda).
Section 8101(4) defines "monthly pay" as "the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the injured employee resumes regular full-time employment with the United States, whichever is greater, except when otherwise determined under section 8113 of this title with respect to any period." The monthly pay for wage loss compensation is subject to a minimum and maximum level of compensation that is set forth in 5 U.S.C. 8112. Section 8113 sets forth certain criteria for an employee employed in a learner's capacity. Section 8114 sets forth various formulas for how to calculate the rate of pay and sets forth elements of pay such as overtime that must be excluded from pay rate calculations.
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2. Establishing a Pay Rate. This paragraph describes in general how to determine a pay rate and where to find relevant information. While Forms CA-1, CA-2, CA-6, CA-7, and CA-2a contain much useful information, the Claims Examiner (CE) must also consider any narrative evidence in file. To establish a pay rate, the CE should take the following steps:
a. Determine the Basis of Payment Under 5 U.S.C. 8114and whether the claimant is a full-time, part-time, temporary, seasonal, casual, etc. worker. If the claimant worked the whole year prior to injury or would have done so but for the injury (Form CA-7, section 9b), this determination is straightforward. If not, however, the CE must investigate all sources of income to determine the claimant's "average annual earnings" before proceeding further. See paragraphs 3 and 4 below.
b. Determine the Effective Date of Pay Rate. The CE must next decide whether to set the pay rate as of the date of injury (DOI) (or death), the date disability began (DDB), or the date of recurrence (DOR). The pay rates on the date of injury and date disability began should be noted on Form CA-7, section 8. Pay rates for newly reported recurrences should be shown on Form CA-2a, while pay rates for previously accepted recurrences should be noted in the Compensation application of the Integrated Federal Employees' Compensation System (iFECS). See paragraph 5 below.
c. Consider Inclusions and Exclusions from Pay Rate. The nature of the increment must be considered first. Commonly encountered increments are reported on Form CA-7, section 8. The CE should also review Form CA-1, CA-2, or CA-2a for evidence of entitlement to premium pay. If the increment can be included, the CE must determine how long it has been received and the amount of money that has been paid. See paragraphs 6-8 below.
d. Clarify Any Discrepancies. The employing agency (EA) or claimant may challenge, correct, or expand on the evidence in the original reports with respect to terms of employment, amount of pay, or types and amounts of increments.
(1) The CE must clarify any material discrepancies in the record before establishing a pay rate for compensation purposes. This can be done by letter, secure e-mail with the employing agency to and from a government network, or by telephone call followed by written confirmation. Document the information received via telephone in the case file on a CA-110 pending receipt of written confirmation.
(2) Evidence submitted by an EA that is supported by records will usually prevail over statements from the claimant, unless such statements are supported by documentary evidence.
(3) When a discrepancy in the reported pay rates is identified, compensation should be paid based on the lower figure until the CE resolves the discrepancy. A provisional rate of GS-2, step 1, or the amount reached by multiplying the daily wage by 150 may be used if necessary. The eight hours per day used in the "150-formula" is based on a five-day work week, or 40 hours per week. Any adjustment should be included in a later payment. The CE should note use of a provisional or temporary rate in the compensation screen of iFECS and in the case record.
e. Decide on Daily, Weekly, or Monthly Basis. While disability claims may be paid on a daily basis under limited circumstances, most are paid on a weekly basis. All death claims are paid on a monthly basis. See paragraphs 9-11 below.
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3. Kinds of Appointments and Tours of Duty. This paragraph describes the most common kinds of appointments in both regular Federal employment and in the Postal Service, as well as other types of appointments or duty status.
a. Civil Service.
(1) Kinds of Appointments. The Office of Personnel Management (OPM) recognizes four kinds of appointments: career; career-conditional (essentially a probationary period); term (not to exceed four years, and with no career status); and temporary (not to exceed one year, with a one-year extension possible, and with no career status).
(2) Tours of Duty. OPM recognizes five tours of duty:
(a) Full-time (40 hours per week);
(b) Part-time (16-32 hours per week);
(c) Intermittent (no regularly scheduled hours);
(d) Seasonal (less than 12 months per year, with either a full-time, part-time, or intermittent schedule); and
(e) On-call (usually at least six months per year on an as-needed basis, with either a full-time or part-time schedule).
Items 20 and 21 on Form CA-1 and items 21 and 22 on Form CA-2 should show the employee's work schedule.
b. Postal Service.
(1) Kinds of Appointments. The Postal Service recognizes the same kinds of appointments as OPM. The Postal Service may differentiate these duties by use of different job titles such as Part-Time Flexible or Casual, and by the type of schedule the employees work.
(2) Tours of Duty. The Postal Service recognizes several types of tours of duty, depending on the kind of work performed. Review of Form PS-50 should clarify the tour of duty on the date of injury and kind of work performed.
An employee may work more hours than indicated by the tour of duty, but careful consideration of base pay versus overtime pay should be given to clarify the regular work schedule. In such cases, the pattern established by the actual number of hours worked or actual amounts of money earned takes precedence over the stated schedule or tour of duty in deciding which part of 5 U.S.C. 8114 to use in determining the pay rate.
Postal Service tours are distinguished as follows:
(a) Craft employees such as letter carriers and mail clerks, or other full-time employees, are paid under the Postal Service (PS) salary structure. These are full-time regular employees and work 40 hours per week.
(b) Part-time regular employees have a fixed schedule but work less than 40 hours per week.
(c) Full-time rural carriers are assigned to specific routes, each of which is evaluated at 36 to 48 hours per week, depending on the size of the route.
The salaries for full-time rural carriers are based on the evaluation of their routes. The Postal Service uses a formula to determine the evaluated salary, which may be based on an evaluation of between 36 and 48 hours per week. Salaries derived from routes which are evaluated at more than 40 hours per week are not considered to include overtime for rural carriers.
Rural carriers are not in an overtime status unless they actually work more than the number of hours stipulated in their contract for their route evaluation and are paid accordingly for overtime. The evaluated pay, therefore, is the pay rate for compensation purposes.
The salary for full-time rural carriers may vary over the life of the claim due to re-evaluations of the employee's assigned route. These changes will only affect the pay rate for compensation purposes on the date disability begins, or if the employee is performing regular work on a full-time basis at the time of a recurrence that qualifies for a recurrent pay rate. If the pay rate on the date disability begins or at the time of a qualifying recurrence is lower than the DOI pay rate, then the DOI pay rate is used to compute compensation.
If a change occurs during a period of disability, compensation continues to be based on the original pay rate.
(d) Rural carrier associates (RCA) are employed irregularly and paid When Actually Employed (WAE). Leave replacement workers, which include RCA's, relief carriers, and substitutes, can work any schedule. For rural carrier leave replacements, who are hired on a part-time basis to substitute for rural carriers and may work from one to six days in a given week, the pay rate should be established in accordance with 5 U.S.C. 8114(d).
(e) Part-time flexible employees, like RCA's, do not have a fixed schedule and can work any schedule up to 40 hours per week and are also paid WAE. Part-time flexible employees are not paid extra for holidays, as their basic pay rate includes an increment for holidays.
(f) Casual employees only work a guaranteed 89-day period, which may or may not be renewed by the Postal Service. A careful review of the employee's PS-50 should clarify the employee's entry on duty date for reference.
(g) Postal inspectors have scheduled work weeks of six days per week and are not paid overtime for the sixth day. These employees are included in the Executive and Administrative Salary (EAS) pay structure, which also covers executives, professionals, supervisors, postmasters, and technical, administrative and clerical employees.
(h) Postmasters (A-E) may work 40 hours per week over six days. Pay for the sixth day does not constitute overtime.
(i) Postal Career Executive Service (PCES) employees are paid an annual salary and may work any schedule with no overtime payable.
c. Military Sealift Command.
(1) Kinds of Appointments. Members of the Military Sealift Command (MSC) crew are assigned to a ship(s) which is usually based out of Norfolk, Virginia or San Diego, California. The duties the crew members perform, which are dependent on the needs of the boat and the boat's specific mission(s), determine what extra pay they may earn.
(2) Tours of Duty and Types of Extra Pay Earned. The tour of duty for MSC crew members is dependent on the boat and the particular duties assigned. Tours of duty may be more than eight hours per day. All crew members are guaranteed a set base salary but may earn extra pay for items discussed under paragraph 6(b) below. Not every crew member will necessarily earn all of the allowable extra pay elements, and duties can change each day.
d. National Guard.
(1) Kinds of Appointments. National Guard members are required to be members of the Air and/or Army National Guard because this membership is contingent upon their civilian Federal employee status. This is considered an accepted dual status.
Federal employees who are not civilian members of the Air and/or Army National Guard are ineligible for this dual status because it is not a requirement for any other Federal employee to retain this dual Federal employment.
(2) Tours of Duty. Civilian members of the Air and/or Army National Guard normally work a set 40-hour work week but perform a two-week or 15-day drill duty each year in addition to monthly training assemblies.
An employee may also be recalled to duty for active Federal service under a Presidential "call" for a period not to exceed 270 days. Refer to paragraph 6(b) below for clarification when a civilian National Guard employee is entitled to compensation above his or her base salary.
e. Census Bureau. Census Bureau employees can be either full-time 40 hour per week regular employees, or may be hired every ten years to work in temporary appointments (not to exceed 180 days) as enumerators, crew leaders or clerks. Temporary positions such as enumerators historically average 4.5 hours per day, four days per week, but crew leaders or clerks can work more than this during the 180-day appointment period.
f. Federal Jurors. Grand Jurors can sit for up to 36 months but do not necessarily convene every day. They may hear evidence for many different cases. Petit Jurors participate in criminal and civil trials and normally serve for one trial only. See FECA PM 2-0802-20 for further details.
g. Firefighters.
(1) Kinds of Appointments. There are several categories of firefighters employed with the Federal Government:
(a) Full-time firefighters, such as those on military installations.
(b) Seasonal firefighters with the US Forest Service.
(c) Firefighters hired on an emergency basis to address specific critical incidents.
(2) Tours of Duty. Tours of duty may vary:
(a) Firefighters who normally work three 24-hour shifts per week. Most firefighters who work a 24-hour shift have a regular bi-weekly tour of 144 hours (six 24-hours shifts), consisting of 106 regular hours and 38 "firefighter overtime" hours.
(b) Firefighters with an extended regular tour built on top of a 40- hour basic workweek.
(c) Emergency firefighters who are typically employed with the Forest Service, National Park Service, and Bureau of Land Management. These employees are not "career seasonal" and are hired on an as-needed basis. Schedules often exceed eight hours per day and five days per week.
h. Department of Agriculture Co-op Employees. These employees work with the Department of Agriculture under a cooperative agreement with a non-Federal public or private organization. See paragraph 12 below.
i. Peace Corps. Each volunteer works in an assignment for a period of 27 months and is considered enrolled 24 hours per day during his or her enrollment period. See FECA PM 2-1700-4 for more information. Pay rates for volunteers are set forth in 5 U.S.C. 8142 (c).
j. Job Corps. Training offered by Job Corps for enrollees as young as 16 years can take from eight months to two years to complete. Subject to the statutory guidance and procedures set forth in FECA PM 2-1700-6, the employee is generally considered covered under the FECA 24 hours per day during this time frame. Pay rates for Job Corps students are set forth in 5 U.S.C. 8143.
k. Americorps VISTA. AmeriCorps itself is split into three main divisions, including AmeriCorps State and National, Volunteers in Service to America (VISTA), and National Civilian Community Corps (NCCC). Each member works for a minimum of one year and is generally covered under the FECA 24 hours per day during this time frame. See FECA PM 2-0802-30.
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4. Average Annual Earnings . This paragraph describes how to determine average annual earnings. This determination, which depends on the nature and duration of the employment, must be made before establishing weekly and monthly pay rates.
The four methods provided by the FECA for making these determinations are set forth in 5 U.S.C. 8114(d)(1) through (d)(4) and are outlined briefly as follows:
Section 5 U.S.C. 8114(d)(1) is used if the employee worked substantially the whole year prior to the injury.
Section 5 U.S.C. 8114(d)(2) is used if the employee did not work substantially the whole year prior to the injury, but would have been employed for substantially a whole year had it not been for the injury.
Section 5 U.S.C. 8114(d)(3) is used if the employee was not employed for substantially the whole year and the employment would not have lasted for substantially the whole of the year.
Section 5 U.S.C. 8114(d)(4) is used when an employee works without pay or nominal pay.
When determining a pay rate, the above criteria should be considered in the order listed, so that only if the method prescribed in 5 U.S.C. 8114(d)(1) cannot be reasonably and fairly applied should the CE consider using the method stated in 5 U.S.C. 8114(d)(2), and so forth.
a. Whole-Year Employment - 5 U.S.C. 8114(d)(1).
5 U.S.C. 8114(d)(1) states,
(d) Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury and the employment was in a position for which an annual rate of pay--
(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by multiplying his daily wage for the particular employment, or the average thereof if the daily wage has fluctuated, by 300 if he was employed on the basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2 -day week, and 260 if employed on the basis of a 5-day week.
Therefore, if the employee worked at least 11 months ("substantially the whole year") before the injury in the job held at the time of injury (see section 9(b) on Form CA-7 or item 19 on Form CA-6), the CE may accept the basic pay rate reported without further inquiry.
The following considerations also apply to section 5 U.S.C. 8114(d)(1):
(1) Career seasonal employment. This is an arrangement where the employee regularly works just part of a calendar year, usually for the same general period each year and at the same type of job. Such workers often perform highly specialized duties (e.g., forest firefighters, IRS tax examiners, forestry technicians).
(a) An employee who has worked in such a position during more than one calendar year by prior written agreement with the employer is considered to be a career seasonal employee. Such an employee is entitled to receive compensation on the same basis as an employee with the same grade and step who has worked the whole year.
(b) Information as to the status of the employee may appear on Form CA-7. If not, the CE must contact the EA. The kind of appointment (career, career-conditional, term or temporary) is shown on the SF-50, Notification of Personnel Action, or on Form PS-50 for Postal employees. The form should show clearly that the appointment is seasonal. An employee should not be considered career seasonal without explicit written documentation by the agency of his or her status.
(c) Employment during the year before the injury is not a factor. For example, compensation for a career seasonal firefighter paid at a GS-7 level, who had worked full-time in such a position by mutual agreement during more than one calendar year, would be computed at the full-time year-round GS-7 salary, regardless of how much or how little the employee worked during the year prior to the injury.
(d) An employee who has worked in a position with no prior written agreement is not considered to be a career seasonal employee. For example, a holiday casual Postal clerk may be rehired on new appointments several years in a row, but since the employer and the employee have not explicitly agreed that the employment will continue from year to year, it is not considered career seasonal work.
(2) Teachers. Teachers are not considered to fall under the provisions of career seasonal employment as set forth above in (1), but they are considered whole-year employment by nature of the position. As noted above, the FECA provides for different methods of computation of average annual earnings, depending on whether the employee worked in the employment in which he or she was injured for substantially a whole year. Substantially the whole year is normally defined as at least 11 months. However, in the teaching profession, substantially the whole year would not necessarily be 11 months. Therefore, in order to determine the average annual earnings for a teacher, consideration must be given to whether the claimant worked substantially the whole actual school year, i.e., 11/12ths of the school year, and whether he or she would have been employed for substantially a whole school year had it not been for the injury.
(3) Concurrent employment. Concurrent employment can be included in determinations made under 5 U.S.C. 8114(d)(1) to the extent that it establishes the ability to work full time. As discussed more fully below, either similar or dissimilar employment can be used to demonstrate this ability.
Program Memorandum No. 147 discusses Irwin Goldman, 23 ECAB 6 (1971), and notes that a pay rate for compensation purposes is not limited to only what an employee earns in part-time employment for a Federal employer when there is concurrent employment that demonstrates the ability to work full time.
(a) When a claimant has been employed for 40 or more hours per week for substantially the year prior to injury, but not all of these hours are with a Federal employer, he or she has demonstrated the ability to work full time. Therefore, the claimant is entitled to compensation at the rate of a regular full-time employee in the same position.
(b) A claimant who can establish that he or she worked for substantially the entire year prior to the injury on a full-time basis is entitled to receive compensation on the same basis as a regular employee working in the same type of job. It does not matter what type of work the claimant performed during that year (though attending school is not considered employment and sporadic employment also would not demonstrate the ability to work full time). The fact that he or she had been employed consistently demonstrates the ability to work full time.
(c) Dissimilar employment. In the Goldman decision, it was determined that a part-time Postal employee who worked four hours per day, five days a week, and had a set salary, could have his pay rate expanded to support that his outside full-time employment in dissimilar private industry demonstrated he could perform work full-time as a Postal employee for compensation calculation purposes.
Therefore, work performed in another job during the year prior to a work-related injury can demonstrate an ability to perform full-time work in the job in which the injury occurred. When a part-time or short-term employee has demonstrated the ability to work full time by performing dissimilar employment for the year prior to the date of injury, the pay rate of an employee working full time in the actual Federal job held by the injured employee should be used to compute compensation.
However, the Goldman decision notes these same private industry earnings could not represent an employee's wage-earning capacity (which is discussed in further detail in FECA PM 2-0814). The actual pay received for dissimilar employment cannot be used in the calculation of the pay rate, but the hours worked can be used to establish an employee's ability to work full time.
(d) Similar employment. Similar outside employment also demonstrates the ability to work full time; however, as opposed to dissimilar employment, similar employment requires the Office to combine the actual earnings from Federal employment with the actual earnings for the similar employment to obtain the average annual pay the employee earned. This total would be divided by 52 to obtain the weekly pay rate.
For example, if a part-time x-ray technician for the VA also works part-time as an x-ray technician at a private hospital, the total earnings of both would be added together to obtain the average annual earnings.
However, a pay rate based on full-time Federal employment may not generally be expanded to include the pay earned in any other concurrent employment, even if that employment is similar to the Federal duties. See J.G., Docket No. 05-943, issued May 23, 2007, where the injured worked was a full-time employee who worked another full-time job but was only entitled to compensation for wage loss for full-time Federal employment. Likewise, a pay rate based on career seasonal employment may not be expanded to include the pay earned "off season."
It is important to distinguish this situation from that addressed by the ECAB in Daniel Shaw, Docket No. 97-1680, issued April 14, 1999. In Shaw, the Board found that the transcript fees the employee, a court reporter, received constituted consideration for his federal employment and therefore were required to be included in the pay rate for compensation purposes. In this case, the claimant did not have similar, concurrent private-sector employment but, as an official court reporter, he was permitted by law to receive payment for transcripts he produced as part of his duties in addition to his salary. The fees he was allowed to charge for these transcripts were set by the employer. Payment was received from both the federal government and by private individuals for official, certified transcripts required in court proceedings. However, such payment was allowed by law and by the employing establishment, and the amount was set under the regulations of the employing establishment. Even though payment was received from other than the claimant's employer, the payment was made for the product of the duties he performed for his salaried position. He was, therefore, being paid for work performed within the performance of his duties.
(4) Pay for Whole Year Employment. For employees who have worked for at least a full year prior to the injury, but whose pay fluctuated during the year, the weekly pay rate for compensation purposes is determined under 5 U.S.C. 8114(d)(1)(B).
For instance, the pay rate of a rural carrier associate or part-time flexible employee of the Postal Service who works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B), not section 8114(d)(3), even if the earnings fluctuated considerably from week to week, because an annual rate of pay can be established by obtaining the yearly earnings, without overtime, for the year prior to the injury.
b. Anticipated Whole-Year Employment - 5 U.S.C. 8114(d)(2).
5 U.S.C. 8114(d)(2) states,
(d) Average annual earnings are determined as follows:
(2) If the employee did not work in employment in which he was employed at the time of his injury during substantially the whole year immediately preceding the injury, but the position was one which would have afforded employment for substantially a whole year, the average annual earnings are a sum equal to the average annual earnings of an employee of the same class working substantially the whole immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as determined under paragraph (1) of this subsection.
Therefore, the next issue to be considered in determining average annual earnings is anticipated whole-year employment. An affirmative answer to section 9(b) on Form CA-7 or item 20 on Form CA-6 is sufficient to show that the employee's position would have afforded employment for substantially a whole year had it not been for the injury. A negative, absent, or ambiguous answer to this question should prompt the CE to release Form CA-1030 to the EA. This can also be documented by a CA-110 following a call with the employing agency.
The average annual earnings are determined as described in paragraph 4(a) above. The discussion of concurrent employment in paragraph 4(a)(3) above also applies to these cases.
c. Irregular Employment - 5 U.S.C. 8114(d)(3).
5 U.S.C. 8114(d)(3) states,
(d) Average annual earnings are determined as follows:
(3) If either of the foregoing methods of determining the average annual earnings cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury having regard to the previous earnings of the employee in Federal employment, and of other employees of the United States in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the employee earned in the employment during the days employed within 1 year immediately preceding his injury.
Therefore, any situation not involving regular whole-year employment, career seasonal employment, a demonstrated ability to work full time, or anticipated whole-year employment - as discussed in the preceding paragraphs - is considered irregular employment. This category includes intermittent, seasonal, on-call, and discontinuous work, as well as employment where average annual earnings cannot be established under 5 U.S.C. 8114(d)(1) or (2).
The provisions of 5 U.S.C. 8114(d)(3) are not to be used if sections 8114(d)(1) or (2) can be applied. As noted earlier, for example, the pay rate of a part-time flexible employee of the Postal Service who works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B), not section 8114(d)(3), even if the earnings fluctuated considerably from week to week, because an annual rate of pay can be established by obtaining the yearly earnings without overtime for the year prior to the injury.
Among other situations, irregular employment may include:
- Postal Service employees hired for the holiday season;
- Census enumerators (see paragraph 12 for further details);
- Casual firefighters hired by the Forest Service;
- Bin-site workers, county and precinct committee workers, and a variety of other inspection personnel, food technologists, veterinary medical officers, and agriculture commodity workers personnel employed on an occasional basis by the Department of Agriculture.
The Office must first take into consideration the earnings of the employee in Federal employment for the year prior to injury. Then the Office should review the earnings of other employees in the same or most similar class working in the same or most similar employment in the same or neighboring location. Finally, the Office must consider any other employment of the employee, or other relevant factors.
However, the average annual earnings may not be less than 150 times the average daily wage that the employee earned in the employment during the year just before the injury. This "150 Formula" should be used by the Office as a provisional pay rate when the employee is entitled to compensation for wage loss and further investigation is required to determine the claimant's average annual earnings.
(1) Claimant's prior-year Federal employment. This information should be obtained from the EA or other Federal agency where the employee worked. Form CA-1030 may be used to request this information.
(2) Similarly-employed worker. The Office should determine the earnings of another Federal employee working the greatest number of hours during the year prior to the injury in the same or most similar class, in the same or neighboring locality, as obtained from the EA or another Federal agency in the same or neighboring locality. Form CA-1030 requests this information.
(a) "Same or most similar class" refers both to the kind of work performed and the kind of appointment held. A similarly situated employee would most likely hold the same type of appointment and the same pay grade and step as the claimant. For example, a rural carrier associate or part-time flexible employee should not be compared to a regular rural carrier or letter carrier, as these are different types of appointments. If the employee's job was temporary and seasonal in nature, it should be compared to that of another temporary and seasonal employee.
(b) If the "same or most similar class" contains more than one employee, the EA should be asked to state the earnings of the employee who worked the "greatest number of hours" and therefore had the highest earnings. If the claimant's term of employment is less than a year, the earnings of the similar employee should be pro-rated to match the same term of employment as the claimant's.
(c) The selected employee's grade and step should also be provided for reference so that it will be on file for wage-earning capacity purposes.
(3) Claimant's prior-year non-Federal employment. The CE will usually need to explore the claimant's full employment history for the year before the injury. This may be accomplished by sending Form CA-1029 to the employee, Form CA-1030 to the EA, or by other means, such as requesting pay stubs or tax returns, or holding a telephone conference with the claimant or EA. The CE may also release Form CA-935 with the SSA-581 to the claimant, and then send the claimant's completed SSA-581 to the Social Security Administration.
Form CA-1027 may be sent to private employers to verify the claimant's reported earnings, but if the earnings appear reasonable, they may be used without verification. Only earnings in employment which is the same as, or similar to, the work the employee was doing when injured may be considered. For this reason, the CE must determine the nature of the employment. Any other relevant factors which may pertain to the employee's "average annual earnings" in the employment in which he or she was working at the time of the injury should be considered. These factors are too various to enumerate, so supportive rationale should be included in a pay rate memo.
(4) The "150 Formula." The last part of 5 U.S.C. 8114(d)(3) states that the average annual earnings shall not be less than 150 times the employee's average daily wage earned in the particular employment during the year just before the injury.
To obtain the average daily wage, the CE should divide the employee's gross earnings in the year prior to the injury by the actual number of days the employee worked. This figure is then multiplied by 150 and divided by 52.
However, in order to establish a provisional pay rate while obtaining other necessary information, the CE may calculate the daily wage on the actual date of injury and apply the 150 formula, i.e. hourly wage multiplied by the number of hours scheduled on the date of injury multiplied by 150 and divided by 52.
(5) To determine the employee's "average annual earnings" after development is complete, the CE should take the highest of:
(a) The earnings of the employee in the year prior to the injury, including any similar non-Federal employment;
(b) The earnings of a similarly-situated employee (see subparagraph (2) above); or
(c) The pay rate determined by the "150 formula."
(6) The CE should prepare a memorandum setting forth this determination and explaining the basis for it. This memorandum, which is subject to the certifier's concurrence, should be made part of the record. Unless conflicting evidence is present or a protest occurs, approval at a level higher than the certifier is not required.
(7) Absent evidence of varying pay rates, the CE need not investigate whether the pay rate changed during the year just before the injury. However, if such evidence is received, the CE should determine the employee's various pay rates during the year just before the injury and the number of days during such period the employee was paid at each rate. The average daily wage will be determined based on this evidence according to the number of days employed at each rate.
d. Employment without Pay -5 U.S.C. 8114(d)(4).
5 U.S.C. 8114(d)(4) states,
(d) Average annual earnings are determined as follows:
(4) If the employee served without pay or at nominal pay, paragraphs (1), (2), and (3) of this subsection apply as far as practicable, but the average annual earnings of the employee may not exceed the minimum rate of basic pay for GS-15. If the average annual earnings cannot be determined reasonably and fairly in the manner otherwise provided by this section, the average annual earnings shall be determined at the reasonable value of the services performed, but not in excess of $3,600 a year.
(1) Persons serving under 5 U.S.C. 8101(1)(B) - i.e., without pay or at nominal pay - come within the meaning of 5 U.S.C. 8114(d)(4). These persons usually have work schedules that are irregular as to hours worked per day and days worked per week, or the duration of the assignment is limited in some way.
The CE should consider these factors when determining a pay rate, using narrative letters or form letters CA-1027 or CA-1029 to request needed evidence. The CE should allow a pay rate based upon full-time employment only if the evidence clearly shows that the person had served on a full-time basis for substantially the whole year immediately preceding the injury, or that the assignment would have afforded employment for substantially the whole year.
(2) The EA should be asked to furnish the following evidence:
(a) A description of the duties performed by the claimant;
(b) Full details about the claimant's work schedule, including the hours worked per day, the days worked per week, the date when the claimant began the assignment, and the date when the assignment was to be completed; and
(c) The title, grade, and pay rate of a full-time position at the EA in which the service performed is the same or most similar to that performed by the injured person.
(3) The claimant should be asked to submit a signed statement showing all of his or her employment during the year immediately preceding the injury, including the names and addresses of employers, the type of work performed for each, and gross earnings exclusive of overtime from each employer.
(4) The CE should prepare a memorandum setting forth the pertinent facts and recommending a determination of the average annual earnings. The pay rate may not exceed the minimum rate of pay of an employee at the GS-15, step 10, level. A Senior CE or higher-level employee must concur with the determination.
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5. Effective Date of Pay Rate. This paragraph describes how to determine the date on which the pay rate should be based.
a. Disability Cases.
(1) In keeping with Section 5 U.S.C. 8101 (4), compensation in disability cases is computed using the pay rates in effect on:
(a) The date of injury (DOI);
(b) The date disability began (DDB); or
(c) The date disability recurred (DOR), if the recurrence began more than six months after the employee resumed regular full-time employment with the U.S.
The dates when compensable "disability began" or "disability recurred" are the dates the employee stopped work due to the injury, not the dates pay stopped. An increase of pay during the continuation of pay (COP) period does not change the pay rate for compensation purposes.
For occupational disease claims where the claimant remains exposed to the work factors claimed, the pay rate is the rate of pay effective the date of the last exposure to causal employment factors (which may be the date of a medical examination). If the claimant no longer remains exposed to the work factors claimed and there has been a change in work duties, e.g., limited duty, then the date of last exposure is used. See Patricia K. Cummings, 53 ECAB 623 (2002).
Peace Corps volunteers and VISTA and Job Corps enrollees are not covered by Section 5 U.S.C. 8101 (4); therefore, they are not entitled to a recurrent pay rate.
(2) The CE must first decide which date to use in establishing the pay rate for disability compensation. To do this, the CE should determine whether:
(a) The employee stopped work due to injury-related disability on or immediately after the date of injury; and
(b) The disability began at that time or is continuous from that time. If so, there is no choice and the DOI will be used.
(3) If the employee did not stop work on the DOI (or immediately afterward, defined as the next day), and the disability began at a later date, the case record should show the pay rate for the DOI and the DDB. The greater of the two will be used in computing compensation. If they are the same, the pay rate should be effective on the DDB. This is true even if the employee is working in private industry at the time the disability begins.
(4) Recurrences of disability are defined in FECA PM 2-1500 and 20 C.F.R. § 10.5(x). A recurrent pay rate applies only if the total or partial disability for work began more than six months after the first return to regular full-time employment (after the original disability) with the U.S. To be eligible for a recurrent pay rate, there need not be a "continuous" six months of full-time employment prior to the recurrence of disability. See Johnny Muro, 19 ECAB 104 (1967).
(a) The ECAB has defined "regular" employment as "established and not fictitious, odd-lot or sheltered," contrasting it with a job created especially for a claimant. The ECAB has also noted that the duties of "regular" employment are covered by a specific job classification, pointing out that the legislative history of the 1960 amendments to the FECA, which added the alternative provisions to section 8101(4), demonstrates that "Congress was concerned with the cases in which the injured employee had 'recovered' or had 'apparently recovered' from the injury." The test is not whether the tasks that appellant performed during his limited duty would have been done by someone else, but instead whether he occupied a regular position that would have been performed by another employee. See also Eltore D. Chinchillo, 18 ECAB 647 (1967) [Remanding the case for further development, the ECAB noted that if the employee only returned to work in a temporary position designed to keep him on the payroll until his future ability to perform shipfitter duties was ascertained, the employee did not resume "regular" full-time employment within the meaning of the statute.]; and Thomas M. Schuerman, 51 ECAB 336 (2000) [Going to Vocational Rehabilitation isn't returning to regular full-time employment.].
(b) "Full time" means returning to the same number of hours of work per week as prior to the injury. For example, a claimant who worked a standard 40-hour week before the injury and returns to work eight hours per day for only three days per week has not returned to full-time employment. For employees who worked regular part-time schedules when injured, the term "full-time" should be construed as "full-schedule."
(c) Entitlement to a recurrent pay rate based on return to private employment requires that the employee must have returned to Federal employment after the original disability and six months must have elapsed since that return-to-work date. (See FECA Program Memoranda Nos. 164 and 268.)
(5) If a recurrence of disability is established, the CE should compare the pay rates on DOI, DDB, and DOR. The greatest of these pay rates will be used to compute compensation. Accepting a recurrence does not automatically constitute a recurrent pay rate. The employee still needs to meet the requirements of paragraph 5(a)(4) above.
(6) Once the claimant has met the initial requirements for entitlement to a recurrent pay rate, subsequent recurrences qualify the claimant for a new recurrent pay rate, without regard for another six-month return-to-work requirement. In determining subsequent DOR pay rates, however, the claimant's work schedule at the time of recurrence must be taken into account.
A recurrent pay rate may be lower than the pay rate in effect on the DOI, DDB, or previous DOR. This can happen when the claimant is originally injured in full-time employment, and the recurrence occurs when the claimant is working part-time or has been rated for loss of wage-earning capacity (LWEC). Even if the EA reports a higher hourly pay rate for a DOR, the recurrent pay rate should be considered the actual weekly amount the claimant earned. In such cases, the pay rate on DOI, DDB, or a previous DOR, with the applicable effective date, would be used because it was higher.
(7) Due to application of cost-of-living increases, compensation based on the DOI pay rate may exceed the amount payable using the DOR pay rate. However, if the DOR pay rate is higher than the DOI pay rate, the DOR should be used, even if a lower payment of compensation will result. (See G.H., Docket 07-1738, 01/05/2009.)
(8) Payment of a schedule award does not entitle the claimant to a recurrent pay rate.
b. Non-Disability Cases.
(1) Claimants are entitled to receive compensation for medical appointments attended as a result of the injury. Medical appointments are not considered disability from work. Compensation for medical appointments should be computed on the pay rate in effect as of:
(a) The DOI, for traumatic injury claims;
(b) The date of last exposure (which is, in effect, the DOI), for occupational disease claims.
In an occupational disease claim, if the claimant continues to be exposed to the same work factors accepted as having caused the condition and claims compensation for medical appointments, the date of the first medical appointment is used as the DOI date, since that is the first date of any eligibility to compensation. Since the accepted period of exposure and/or work factors has already been determined, the effective pay rate date will not change unless the employee actually becomes disabled (e.g., surgery, lack of suitable work, etc.) or later files a claim for a schedule award (in which case the actual date of last exposure should be used as the DOI pay rate).
If the claimant did not lose any time from work but began working limited or modified duties due to restrictions imposed as a result of the accepted injury, then the date prior to the date the modified duty began should be used as a new DOI pay rate and pay rate effective date for purposes of paying compensation for ongoing medical appointments, since this is the date of last exposure to the work factors that were accepted by OWCP.
If the claimant then loses time from work due to disability resulting from the work injury, a new pay rate (DDB) would be established.
c. Schedule Award Cases. The pay rate used for the payment of the schedule award is the greatest of the established pay rates (DOI, DDB, or DOR). See Exhibit 1.
For occupational disease claims where the claimant remains exposed to the work factors claimed, the pay rate is the rate of pay effective the date of the medical examination. If the claimant no longer remains exposed to the work factors claimed and there has been a change in work duties, e.g., limited duty, then the date of last exposure is used. See Patricia K. Cummings, 53 ECAB 623 (2002).
Where there was no prior injury-related disability from work, the DOI pay rate should be used. However, the CPI-effective date is the beginning date of the schedule award, since that is the first date of any eligibility to compensation.
d. Death Cases. The pay rate in death cases is determined by the DOI, which is the date of death, unless a different pay rate has been reached in a disability claim due to delayed or recurrent disability leading to the death, or because the decedent was a minor or learner whose pay rate was re-determined according to 5 U.S.C. 8113(a). (See paragraph 12a below.)
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6. Elements Included in Pay Rate. This paragraph lists the increments of pay which may be included in the pay rate, either by statute or administrative determination.
a. Statutory Inclusions.
(1) 5 U.S.C. 8114 includes the following elements for determining an employee's pay rate:
(a) The employee's full salary or full cash wage;
(b) The value of any subsistence and quarters received for services in addition to the cash wage (not including subsistence and quarters furnished by the employer and paid for directly by the employee or by deduction from the employee's salary); and
(c) Premium pay for scheduled standby duty as provided by 5 U.S.C. 5545(c)(1).
(2) The employer does not usually provide subsistence and quarters to employees unless the conditions and place of employment render it impossible or impractical for an employee to obtain food and lodging from another source. Therefore, the CE need be concerned with subsistence and quarters only where:
(a) The industry or the employer customarily provides such services (e.g., crew members employed by the Military Sealift Command, employees aboard boats, dredges, barges, and floating plant vessels, or temporary firefighters working for the Forest Service);
(b) A quarters allowance is paid to personnel serving overseas, pursuant to Section 901(1) of the Foreign Service Act of 1946 and Executive Order No. 10011, dated October 22, 1948; or
(c) Item 18 on Form CA-6, section 8 on Form CA-7, or some other written evidence from the claimant or employing agency shows that the employer provided food and lodging.
b. Administrative Inclusions. It has been determined administratively that the following elements will be included in computing an employee's pay rate:
(1) Night differential is paid for regularly scheduled work between the hours of 6:00 p.m. and 6:00 a.m.
(2) Shift differential is paid to wage-grade employees and is typically 7.5% for the entire shift of a swing shift or shift 2. This differs from night differential in that shift differential is typically paid for the entire shift if the majority of that shift falls after or before the hours of 6:00 p.m.
(3) Extra compensation for performing work on Sundays or holidays paid to regular employees of the Postal Service.
(4) Premium pay for work on Sundays and/or Saturdays under 5 U.S.C. 5546(a), which provides for extra pay when an employee's regular work schedule includes an eight-hour period, any part of which falls on a Sunday or described as being within the period commencing at 12:00 a.m. Saturday and ending at 12:00 a.m. Sunday. Saturday pay is usually payable to health professionals working for the Department of Veterans' Affairs.
(5) Premium pay for work on holidays under 5 U.S.C. 5546(b), which provides for extra pay when an employee's regular schedule includes work on a holiday. This increment may not be paid for work which exceeds eight hours or which represents overtime.
(6) Retention pay when the employee is in a field which is difficult to staff or requires specific and/or difficult to hire employment, such as certain medical professionals, Military Sealift Command employees, or air traffic controllers. This will be documented by the agency if this is included and provided by the agency.
(7) Premium pay for administratively uncontrollable overtime (AUO), including holiday pay under 5 U.S.C. 5545(c)(2) (see also FECA Program Memoranda Nos. 106 and 280).
(8) Availability pay for criminal investigators pursuant to 5 U.S.C. 5545a. This increment (25% of basic pay) is paid to ensure the availability of investigators for unscheduled duty, and replaces AUO (see above) for these employees.
(9) Extra pay received by immigration inspectors for work performed between 5:00 p.m. and 8:00 a.m., and for all work performed on Sundays and holidays (see FECA Program Memorandum No. 68).
(10) Extra pay received by customs inspectors for work performed between 5:00 p.m. and 8:00 a.m., and for all work performed on Sundays and holidays, until January 1, 1994 (see FECA Program Memoranda Nos. 278 and 281).
(11) Wages paid for National Guard service when membership in the National Guard is a condition of the employee's civilian employment with the Guard.
Earnings received for active Federal service under a Presidential call are also included. A Presidential call is a statutory method by which reservists can be involuntarily ordered to active duty. Any extra wages earned for this specific service under a Presidential call should be obtained for the year prior to the date of injury, since serving under a Presidential call is not a voluntary action. This should be divided by 52 weeks and added to the basic pay rate. Other supplemental Reserve pay, obtained through voluntary actions of the employee, is not included. (See R.E., ECAB Docket 2008-1728, issued April 10, 2009.) [Any compensation that was paid for other voluntary active duty pay prior to the issuance of this ECAB decision is not considered an overpayment of compensation.]
(12) Extra pay authorized under the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(k), for emergency medical technicians and other employees who earn and use leave on the basis of their entire tour of duty, and who are required to work more than 106 hours per pay period. GS-081 firefighters with pay-rate effective dates prior to October 11, 1998 would also be included in this section.
Such pay may be included retroactive to July 21, 1987, when OPM made changes in its regulations. To be entitled to an adjustment in the pay rate, the claimant must have been in pay status on or after that date. If retroactive payment is authorized in a long-term disability case, the pay rate must be adjusted so that CPIs will be included.
(13) The Federal Firefighters Overtime Pay Reform Act of 1998 (Public Law No. 105-277) amended Title 5 of the U.S. Code to define hours worked by firefighters in excess of 106 bi-weekly, or 53 weekly, as "overtime." Public Law 106-554, which was enacted in December 2000, contained language establishing that those hours in excess of 106 bi-weekly (or 53 weekly) should not be considered "overtime" pay for the purpose of computing pay under Section 5 U.S.C. 5545b. These changes became effective the first day of the first pay period after October 1, 1998. (This date is presumed to be October 11, 1998.) This change applies only to GS-081 firefighters who are covered by Section 5 U.S.C. 5545b.
The Federal Firefighters Overtime Pay Reform Act of 1998 provides "overtime" for hours in the regular tour of duty to both FLSA nonexempt and exempt firefighters. The weekly pay rates are computed in the same manner for both types of firefighters, except there is a cap on the "overtime" hourly rates for FLSA exempt firefighters. The cap is set at 1.5 times the GS-10, step 1 hourly rate (computed using the 2087 divisor and including any applicable locality pay), but the capped rate may not fall below the individual firefighter's hourly rate of basic pay.
(14) Premium, hazard and penalty pay for crew members employed by the Military Sealift Command is granted by the master of the ship they work for and is only paid depending on the needs of this ship and its particular mission. Not all crew members may earn these pay elements, but these are payments for involuntary duties.
The following are considered "leave supplements" that are paid to all unlicensed crew members or watch-standing officers by the Military Sealift Command, to compensate for overtime, penalty or premium pay that is not earned while on authorized leave. The leave supplement is a means of maintaining wage differentials among the crew, and is not among the categories of pay excluded by Section 5 U.S.C. 8114(e).
(a) Hazard pay. This is only earned when the boat is in a combat zone during wartime. When the ship is not in a combat zone, this cannot be earned by any crew member.
(b) Premium pay. This is dependent on the position and duties of the crew member and granted by the master of the ship itself when a crew member is ordered to do specific tasks that will require a minimum of two hours to perform.
(c) Penalty pay. This is paid when a specific task requires a crew member to miss meals or sleep (such as a task which is required at night).
(d) Subsistence pay. This is paid when a crew member lives over 50 miles from his or her regular duty station and is waiting for work and in an official standby waiting status; this will be granted by the master of the boat.
(e) Habitability pay. This is paid when crew members are required to stay on shore while their assigned boat is being serviced in dry dock.
(f) Retention Allowance. This is paid as an incentive to retain personnel such as able seamen or engineers.
(g) "Non-watch" or Non-watch-standing pay. This is paid to able seamen or engine personnel who are performing security duties for a particular boat. These are the only two types of employees who may earn this pay as part of their assigned duties.
The extra pay the claimant earned for these items in the year prior to the effective pay rate date should be requested from Military Sealift Command payroll or injury compensation staff, since the amount earned can vary widely.
(15) FAA Air Traffic Controller (ATC) Pay. Along with night differential, Sunday premium, or holiday pay, an ATC can earn the following extra pay, as it is involuntarily earned based upon the employer's needs: Controller-in-Charge and controller retention or incentive pay.
(16) "Arctic bonus" pay received by personnel working at Foreign Arctic Weather Stations of the National Oceanic and Atmospheric Administration, Department of Commerce.
(17) "Dirty-work pay" extended to employees who work under conditions which soil the body or clothing more than normally expected in performing the duties of the job.
(18) "Hazard pay" when it is included for work which is recurrent in nature and part of the employee's normal duties. This is not to be confused with "danger pay" awarded for hazardous services in time of war, which is excluded as described in the next section.
(19) Locality pay or "COLA" (cost-of-living allowance) paid to certain employees as part of their normal pay and in addition to their salary, because of differences in cost of living within the U.S. and its possessions (e.g., Puerto Rico).
(20) "Remote worksite allowance" under the provisions of 5 U.S.C. 5942 paid to certain employees assigned to regular duty at designated locations so remote from the nearest established communities or suitable places of residence as to require an appreciable degree of expense, hardship, and inconvenience beyond that normally encountered in metropolitan commuting.
(21) "Post differential" paid under 5 U.S.C. 5925. This is regarded as a special recruitment and retention allowance granted because of the overall environmental conditions or rigors of the particular post. It is not a cost-of-living differential or economic equalization factor, which would be excluded from the pay rate for compensation purposes.
(22) Dive pay is authorized for wage system employees for those hours when they are actually performing diving duties. The pay rate is 175 percent of the WG-10, step 2 rate, adjusted for locality.
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7. Elements Excluded from Pay Rate. This paragraph list the increments of pay which may not be included in the pay rate, as determined either by statute or administrative decision.
a. Statutory Exclusions. 5 U.S.C. 8114(e) excludes the following elements from an employee's pay rate:
(1) Overtime pay. The extra pay required by the Fair Labor Standards Act (FLSA) for hours worked in excess of the standard prescribed under the FLSA is not to be included in computing pay for the purposes of continuation of pay or compensation. Such extra pay is earned only if the actual hours are worked and is considered to be overtime pay for the purposes of 5 U.S.C. 8114(e).
(2) Additional pay or post-allowance authorized outside the United States and its possessions because of differential in cost of living or other special circumstances. The separate maintenance allowance authorized in 5 U.S.C. 5923(3) is also excluded, since it is a cost-of-living allowance paid to an employee in a foreign area.
(3) Bonus or premium pay for extraordinary service, including "danger pay," which is any amount paid as a bonus for particularly hazardous services in time of war.
b. Administrative Exclusions.
(1) Per diem received by an employee while in a travel status.
(2) Extra allowance paid for an employee's use of his or her private motor vehicle (such as rural carriers for the US Postal Service).
(3) Unemployment compensation.
(4) Earnings from dissimilar concurrent employment. For example, if the claimant works for the Federal Government as a part-time secretary and also works as a cashier part time for a private employer, the earnings from the cashier position would not be included in the pay rate. However, such earnings may help in determining the claimant's ability to work full time. (See section 4(a)(3) above.)
(5) Earnings as an activated reservist or National Guard member when the activation is not as a result of a presidential call under §12301(a), §12302, or §12304 of Title 10, United States Code (See R.E.. Docket 08-1728, 04/10/2009.)
(6) Earnings as a reservist or National Guard member when the membership is not a condition of the employee's civilian employment with the Guard or Reserve.
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8. Applying Increments of Pay. This paragraph discusses when the CE may accept the amounts of differential pay increments as reported and when to seek clarification. The CE should normally not delay a payment to obtain such clarification, which can be obtained in writing or by a phone call to the EA and then documented by placing a CA-110 in file.
a. Receipt on Regular Basis. If an additional amount or percentage was paid for premium, night differential, holiday, shift pay, FLSA extra pay, or firefighters extra pay (see paragraph 6 in this chapter), and the file contains no evidence showing that this amount varies or is paid irregularly, the CE may add the indicated amount or percentage to the base pay reported without further inquiry. The CE should verify with the employing agency whether shift differential is included with the base pay provided for wage-grade employees.
Sunday premium pay, however, is an exception and should be requested for the year prior to the pay rate effective date, even if the claimant is scheduled to work every Sunday. Sunday premium pay is only paid for actual time worked. It is not paid for periods of leave taken.
b. Varying Amounts. If the evidence shows that the amount or percentage paid for premium, night differential, shift pay, FLSA extra pay, or firefighters extra pay varies or is paid irregularly, the CE should determine the amount of additional pay received during that year and add it to the reported base pay. (See subparagraph 8(c) below concerning FLSA pay and subparagraph 8(d) below concerning firefighters' pay.)
c. FLSA Pay for Firefighters. The pay rates of individuals entitled to this increment of pay are based on annual pay rate and percentage of premium pay. Their pay is based on 144 hours of work each 14-day pay period, of which 106 are regular hours and 38 are FLSA overtime hours. The number of biweekly hours should be verified with the employing agency if not readily determined in the case documentation. The formula is as follows:
(1) Yearly pay/26 = basic biweekly pay.
(2) Basic biweekly pay x premium pay percentage = standby premium pay.
(3) Basic biweekly pay + standby premium pay = total pay without FLSA Overtime.
(4) Total pay without FLSA OT/144 = hourly regular rate.
(5) Hourly regular rate x .5 x 38 = FLSA overtime.
(6) Total pay without FLSA OT + FLSA overtime = total pay.
d. GS-081 Firefighters Pay. Under the Federal Firefighters Overtime Pay Reform Act of 1998, there are two categories of firefighters based on the type of work schedule. Different pay computation rules apply to each category.
(1) Firefighters with regular tours of duty generally consisting of 24-hour shifts (which is the most common situation).
(a) Annual salary / 2756 (53 hours of regular pay per week X 52 weeks) = firefighter hourly rate.
(b) Firefighter hourly rate X 106 hours = biweekly base pay.
(c) Firefighter hourly rate X 1.5 = "firefighter overtime" rate (subject to GS-10, step 1 cap as described in PM 2-0900.7.b.(22).
(d) "Firefighter overtime" rate X number of hours in regular tour in excess of 106 hours = biweekly "firefighter overtime."
(e) (Biweekly base pay + biweekly "firefighter overtime") / 2 = weekly pay rate.
(Note: most 24-hour shift firefighters have a regular biweekly tour of 144 hours (six 24-hours shifts), consisting of 106 regular hours and 38 "firefighter overtime" hours; thus, 38 hours (144-106) would be used in step (d) above.)
(2) Firefighters with an extended regular tour built on top of a 40-hour basic workweek.
(a) (Annual salary / 2087) X 80 hours = biweekly base pay.
(b) Annual salary/ 2756 = firefighter hourly rate.
(c) Firefighter hourly rate X 26 hours = additional biweekly base pay.
(d) Firefighter hourly rate X 1.5 = "firefighter overtime" rate (subject to GS-10, step 1 cap as described in PM 2-0900.7.b.(22).
(e) "Firefighter overtime" rate X hours in regular tour in excess of 106 hours = biweekly "firefighter overtime".
(f) (Biweekly base pay + additional biweekly base pay + biweekly "firefighter overtime") / 2 = weekly pay rate.
(Note: a common schedule would be a 40+16 weekly tour, which translates into a biweekly tour of 112 hours, including 6 "firefighter overtime" hours to be used in step (e) above.)
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9. Computing Daily Pay Rate. This paragraph provides guidance on how to compute daily pay rates, which may be used under the circumstances noted below. However, in practice, payments in disability claims are almost always based on the weekly rate.
a. Criteria. A daily pay rate may be used only when all of the following four tests are met:
(1) The injury caused only temporary total disability.
(2) The period of compensable disability (the period for which compensation is paid) does not, or is not expected to, exceed 90 calendar days.
(3) No additional increments of pay (e.g. Sunday premium, shift differential, etc.) are involved.
(4) The "average annual earnings" of the employee are not readily determinable.
b. Length and Permanency of Disability. In deciding whether the injury will likely cause permanent disability or a period of temporary total disability exceeding 90 calendar days, the CE must consider the nature and severity of the injury; the medical prognosis; the age of the employee; and the nature of the employment. When it is unclear whether permanent effects will result from the injury, or whether the temporary total disability will exceed 90 calendar days, and the "average annual earnings" cannot be readily determined, the CE should set up payment based on the daily pay rate and make appropriate inquiries to develop the weekly pay rate.
If the disability extends beyond 90 calendar days, the CE will need to reassess the pay rate.
c. Fixed Schedule. Where the evidence on Form CA-1 or CA-2 shows that the employee works the same hours on a daily basis and the same days each week, the CE will determine the actual daily wage according to how it is reported:
(1) If the wage reported is on a daily basis, the amount shown will be used as the actual daily wage;
(2) If the wage reported is on an hourly basis, the actual daily wage will be computed by multiplying the hourly pay by the hours worked per day shown in item 20 on Form CA-1 or item 21 on Form CA-2; or
d. Intermittent Schedule. Where Form CA-1 or CA-2 shows that the employee did not work the same hours per day or the same days per week, the CE should obtain the actual dates worked during the month immediately preceding the injury to determine whether the employee worked a reasonably regular schedule of 5, 5 ½, or 6 days per week, for example. This is necessary to determine the actual days of compensation entitlement.
If the claimant worked a reasonably regular schedule, the actual daily wage will be computed by dividing the employee's gross earnings during the month just before the injury by the actual number of days the employee worked during such period.
e. If paying compensation on a daily rate, the employee is paid for the days he or she would have worked but for the injury (work days). For example, a married worker sustains an ankle fracture on her third day of employment and stops work. She is disabled for 17 days before returning to her full, regular duties. The employee was hired on a temporary basis and makes $10.00 per hour. The EA reports that the claimant worked 15 total hours during her 3 days of employment. The daily pay rate would be calculated as follows:
15 hours divided by 3 days = 5 hours per day
$10.00 per hr X 5 hrs per day = $50.00
$50.00 X ¾ = $37.50 per day compensation rate
$37.50 x 17 days lost = $637.50
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10. Computing Weekly Pay Pate. This paragraph provides guidance on how to compute a basic weekly pay rate, depending on the form in which pay is reported:
a. Annual Basis. An annual salary, which may be reached either by report from the employing agency or determination of average annual earnings, is divided by 52.
b. Daily Basis. The amount shown is multiplied by 5 for a five-day workweek, 5½ for a five-and-a-half day workweek, and so on.
c. Hourly Basis.
(1) For Postal Service employees, the amount shown is multiplied by 2080, and then divided by 52.
For USPS employees who work less than a full schedule, the figure of 2080 hours should be prorated (e.g. 1040 hours when the employee works four hours per day), then multiplied by the amount shown; or
(2) For regular Federal employees, the amount shown is multiplied by 2087 (by administrative determination, the number of hours in a full work year based on a 40-hour work week). This figure is then divided by 52.
For employees who work less than a full schedule, the figure of 2087 hours should be prorated (e.g., to 1043.5 hours when the employee works four hours per day), then multiplied by the amount shown.
The figure of 2087 hours equals 52 weeks plus .875 of one workday. To calculate increments of pay (night, Sunday, etc.), first multiply the hourly increment by 2087, then divide the sum by 52 to obtain the amount of the weekly increment.
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11. Computing Monthly Pay Rate. This paragraph describes how to compute a monthly pay rate, which is used in death cases. To do so, the CE must first determine the employee's "average annual earnings" in the manner provided by Section 5 U.S.C. 8114(d) and the instructions appearing in paragraph 4 above. This figure is then divided by 12. For example, if the average annual earnings are determined to be $65,000, the claimant's monthly pay rate would be established as $5,416.67 ($65,000/12).
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12. Special Determinations. This paragraph defines the rules for determining pay rates based on unusual terms of employment, pay scales, or increments of pay.
a. Minors/Learner's Capacity. Section 5 U.S.C. 8113(a) states that: If an individual (1) was a minor or employed in a learner's capacity at the time of injury; and (2) was not physically or mentally handicapped before the injury; the Secretary of Labor...after the time the wage-earning capacity of the individual would probably have increased but for the injury, shall recompute prospectively the monetary compensation payable for disability on the basis of an assumed monthly pay corresponding to the probable increased wage-earning capacity. David J. McDonald, 50 ECAB 185, Docket No. 96-1144; December 10, 1998 (Appellant not entitled to a learner's capacity) contains a good discussion of this topic.
The FECA does not define the term "minor", and whether a person has attained his or her majority must be determined under state law of the claimant's domicile. Since the interpretation of state laws and judicial decisions is involved, any case where this issue arises should be referred to the National Office for a determination.
b. Cadets at Federal and State Maritime Academies. Cadets at Federal and State Maritime Academies do not receive wages while in training, but they are provided with a monthly allowance for subsistence, quarters, etc. This sum will serve as the basis for computing compensation. However, cadets are working in learners' capacities, and the pay rate may be recomputed according to the provisions of Section 8113(a) where appropriate.
c. Peace Corps Volunteers, Volunteers in Service to America (VISTA), and Job Corps Enrollees. (See also FECA PM 2-1700.) Entitlement to compensation for these groups of employees does not begin until the volunteers or enrollees are separated from their employment. The pay rate to be used is the one in effect at the time of separation.
(1) For Peace Corps Volunteers, the pay rate is set at the GS-7, step 1 level, and for Peace Corps Leaders, it is set at the GS-11, step 1 level. For injuries on or after September 7, 1974, the pay rate of Peace Corps Volunteers designated as "heads of households" is set at the GS-11 rate. Locality pay is not included. See 5 U.S.C. 8142.
(2) For VISTA Volunteers injured on or after October 1, 1993, the pay rate is set at the GS-5, step 1 level. (Before that time, the pay rate was set at the GS-7, step 1 level.); or
(3) For Job Corps enrollees, the pay rate is set at the GS-2, step 1 level. See 5 U.S.C. 8143.
d. Department of Agriculture--Cooperative Employees. For a person working with the Department of Agriculture under a cooperative agreement with a non-Federal public or private organization, the CE should compute the pay rate based on the total salary received from the Department of Agriculture and the cooperating organizations. Form CA-7 or some other report from the employing agency should show the gross salary received by the employee from all entities involved. The CE should request this information from the employing agency if it is not received with the original reports. Any compensation payable should be reduced by the amount which the non-Federal organization paid to the claimant.
e. Census Enumerators and Crew Leaders - 2010 Census. (For injuries occurring during previous censuses, consult the National Office.) Information about calculating compensation for these employees may be found in FECA PM 2-0901.
(1) For the 2010 census, the Bureau of the Census hired individuals in Local Census Offices (LCOs) throughout the U.S., including Alaska, Hawaii and Puerto Rico. Most employees in LCOs were either enumerators or crew leaders on temporary (not-to-exceed 180 days) appointments.
(2) All temporary-hire positions, including enumerators and crew leaders, were paid on an hourly basis. Wages in the LCOs varied by geographical area, and pay types were assigned accordingly. Any questions regarding pay rates can be referred to the Bureau of the Census, Demographic and Decennial Staff, at (301) 763-9620. Following are the hourly wage rates for enumerators, crew leaders and clerks:
Enumerator: $10.93 to $22.10
Crew Leader: $12.43 to $23.60
Clerk: $ 8.20 to $15.82
(3) Based on an analysis of the 2000 Census data, the Bureau of the Census determined that, on average, enumerators worked 4.5 hours per day, 4 days per week. The work patterns for the 2010 Census were anticipated to be similar to the 2000 Census. However, individuals may have worked more or less depending on the LCO's operational requirements, and the factual evidence should be evaluated carefully. Because of their irregular Federal employment, these employees are usually paid under the provisions of 5 U.S.C. 8114(d)(3), as outlined in 4(c) of this chapter.
(4) Temporary hire workers may have worked more than one "operation" or assignment during the course of their employment for the census. The CE should evaluate the particular duty requirements for each position when determining whether any collateral or consecutive jobs constitute "same or similar employment" under §8114 of the Act when calculating compensation.
f. Special Census Employees. The Census Bureau sometimes enters into contracts with state, county and city governments to conduct various types of surveys. Most of the workers are hired for very short periods of time, and they are paid directly by the local entity conducting the study. As they are covered under separate legislation, it has been determined that they are not eligible for COP (Reference 20 CFR §10.200). The CE should follow the guidance given above in paragraph 4 to establish their average annual earnings.
g. Performance-Based Alternative Pay Systems (Pay Banding). Some Federal agencies have adopted the use of performance-based alternative pay systems. There are numerous performance-based pay systems, but they all link individual base pay and bonuses to performance. Most options do not provide for any automatic pay increases. These pay systems give managers more flexibility in setting the pay for new employees (as well as current employees).
In performance-based pay systems (also known as pay banding), agencies may collapse the 15 General Schedule grades into a smaller number of pay ranges. For example, the GS grades could be collapsed into four bands which cover GS-1 through 5, GS-6 through 11, GS-12 through 13, and GS-14 through 15. Once the bands are defined, the agency may hire an employee at any pay amount within a band and determine how employees move within and across bands.
(h) Reemployed annuitants. The pay rate should be based on the salary of a full-time Federal worker. Section 8114(d)(3) of the Act provides that the pay rate used should reasonably represent the pay rate of the employee in the Federal job when injured and of other Federal employees in the same or similar class. However, if a claimant has private sector earnings which are similar to the part-time Federal job duties, the employee's pay rate must be established under Section 8114(d)(3).
Note: If a reemployed annuitant officially retired prior to the stated injury, he or she must make an election between FECA benefits and OPM (see FECA PM 2-1000).
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Exhibit 1 - DETERMINING EFFECTIVE PAY RATE DATE FOR SCHEDULE AWARDS
Traumatic Injury Claims -
With prior disability:
Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
SA Start Date = DMI (date of maximum medical improvement)
CPI Start Date = DOI, DDB, or DOR (pay rate effective date)
Without prior disability:
Pay Rate Date = DOI
SA Start Date = DMI
CPI Start Date = DMI
Occupational Disease Claims -
With prior disability, working full duty (still exposed to injurious work factors) at time of rating exam:
Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
(DOI = Date of Last Exposure (DLE) = Date of Impairment rating exam)
SA Start Date = DMI
CPI Start Date = DOI, DDB or DOR (pay rate effective date)
With prior disability, not working or working limited duty at time of rating exam:
Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
SA Start Date = DMI
CPI Start Date = DOI, DDB or DOR (pay rate effective date)
Without prior disability:
Pay Rate Date = DOI
(DOI = DLE = Last date exposed to causal employment factors in full-duty capacity or date of medical exam if still exposed)
SA Start Date = DMI
CPI Start Date = DMI
Occupational Hearing Loss and Asbestosis Claims -
When claimant is disabled due to occupational hearing loss or asbestosis:
Pay Rate Date = DOI, DDB, or DOR (whichever is greatest)
SA Start Date = DMI
CPI Start Date = DOI, DDB or DOR (pay rate effective date)
When there is no disability, claimant has continuing exposure:
Pay Rate Date = DOI
(DOI = DLE = date of last exposure before diagnostic exam - audiogram/chest x-ray)
SA Start Date = DMI
CPI Start Date = DMI = date of audiogram or chest x-ray
When there is no disability, retired:
Pay Rate Date = DOI
(DOI = date of retirement or last documented date of exposure to hazardous noise or asbestos)
SA Start Date = DMI
CPI Start Date = DMI = date of last audiogram or chest x-ray
* The SA start date can be moved forward in time if documented in the case file. However, it cannot be moved back in time. See PM 2-808-7.
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1. Purpose and Scope. This chapter discusses procedures for determining whether forfeiture of compensation is appropriate for failure to report earnings and employment activity. Review of Periodic Roll cases and the development of possible earnings are discussed in detail in FECA PM 2-0812.
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2. Statutory Provisions.
a. Section 8106(b) of the Federal Employees' Compensation Act (FECA) provides that,
The Secretary of Labor may require a partially disabled employee to report his earnings from employment or self-employment, by affidavit or otherwise, in the manner and at the times the Secretary specifies. The employee shall include in the affidavit or report the value of housing, board, lodging, and other advantages which are part of his earnings in employment or self-employment and which can be estimated in money. An employee who--
(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings
forfeits his right to compensation with respect to any period for which the affidavit or report was required. Compensation forfeited under this subsection, if already paid, shall be recovered by a deduction from the compensation payable to the employee or otherwise recovered under section 8129 of this title, unless recovery is waived under that section.
b. Although section 8106 refers to "partially disabled" claimants, the Employees' Compensation Appeals Board (ECAB) has held that the forfeiture provision also applies to claimants receiving compensation for total disability. See Joseph M. Popp, 48 ECAB 624 (1997). See also Ronald H. Ripple, 24 ECAB 254, 260 (1973).
c. The statutory authority for forfeiture applies to the omission or understatement of earnings and work activity; it does not apply to similar misrepresentations of dependent status, receipt of dual benefits, etc. While omission or misrepresentation of these other factual elements may lead to an adjustment and overpayment of compensation, the forfeiture provision may not be applied. See Lucille A. Pettaway, 55 ECAB 228 (2004) (ECAB stated that the penalty provision only applies to reports of earnings from employment or self-employment; therefore, forfeiture under section 8106(b) may not be declared for failure, knowingly or otherwise, to report one's imprisonment for a felony).
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3. Periodic Roll Review. All cases on the periodic roll require completion of Form EN-1032 on a yearly basis; Form CA-1032 is the cover letter for this form. The office generates and mails Form CA-1032 (with attached EN-1032) to claimants. The Claims Examiner (CE) should review each case after 30 days has elapsed. If there is any evidence on Form EN-1032 that the claimant has any type of employment or earnings, further action is warranted. The CE should pursue clarification and obtain further information from the claimant, the Social Security Administration, or the new employer. The CE may also consider referral to the Office of Inspector General if sufficient information regarding the employment is not received from the claimant or other sources. See FECA PM 2-0812 for a more detailed discussion of the review of cases on the periodic roll.
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4. CA-1032 Reporting Requirements. The EN-1032 covers the 15-month period prior to the date of the claimant's signature. This form specifically instructs the claimant to report all work and volunteer activity, other than ownership or passive investment in a publicly traded business. The claimant is specifically instructed to:
a. Report all employment for which a salary, wages, income, sales commissions, piecework, or payment of any kind is received (including service with the military forces of the United States, the National Guard, a Reserve component, or other affiliates), even for employment held at the time of injury if he/she has worked at that employment during any period covered by the form.
b. Report all self-employment or involvement in business enterprises, even if the activity was part-time or intermittent, or was performed for a family business. Examples are provided: farming; sales work; operating a store or a restaurant; carpentry; mechanical work; painting; contracting; child care; odd jobs, keeping books and records; or managing and/or overseeing a business of any kind.
c. Report the "rate of pay," including. the value of such things as housing, meals, clothing, and reimbursed expenses, if they were received as part of the employment.
d. Report any work or ownership interest in any business enterprise, even if the business lost money, or if profits or income were reinvested or paid to others. If the claimant performed any duties in any business enterprise for which no pay was received, he/she is instructed to show as the rate of pay what it would have cost the employer or organization to hire someone to perform the work or duties performed, even if the work was for the claimant or a relative.
e. Report any volunteer work, including volunteer work for which any form of monetary or in-kind compensation was received.
After answering these questions, the claimant is required to certify the responses and sign the affidavit after reading the certification statement, which states that "I know that fraudulently concealing or failing to report income or other information in claiming payment or benefit under FECA may result in the forfeiture of compensation for the period covered by this form and may also result in a civil action against me for damages under the False Claims Act or other applicable laws."
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5. Key Elements of a Forfeiture Decision. There are two key requirements for a finding of forfeiture under Section 8106(b)(2): 1) whether the claimant failed to report earnings; and 2) whether he/she did so knowingly. A claimant can only be subjected to the forfeiture provision of section 8106(b)(2) if he or she "knowingly" failed to report employment or earnings. A discussion of earnings can be found in paragraph 6, and guidance for making a determination on the second component, "knowingly," is found in paragraph 7.
If the claimant knowingly omits or understates earnings, compensation will be declared forfeit for the period covered by the requested report. Also, forfeiture may be declared for failure to report self-employment if a value could be placed on the work performed in the open labor market, and the evidence establishes that the claimant was aware or reasonably should have been aware of the requirement to report such employment.
It is not enough to merely establish that there were unreported earnings. The evidence must demonstrate the claimant knowingly failed to report the earnings or activity. Forfeiture is a penalty and, as such, must be narrowly construed.
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6. Definition of Earnings. As noted in paragraph 4 of this chapter, Form EN-1032 is explicit in the type of work and volunteer activity that should be reported. The FECA regulations very clearly define earnings and the need to report volunteer activity, even if no pay was received.
a. 20 C.F.R. §10.5(g) defines earnings from employment or self- employment as:
(1) Gross earnings or wages before any deductions, and includes the value of subsistence, quarters, reimbursed expenses and any other goods or services received in kind as remuneration; or
(2) A reasonable estimate of the cost to have someone else perform the duties of an individual who accepts no remuneration. Neither lack of profits, nor the characterization of the duties as a hobby, removes an unremunerated individual's responsibility to report the estimated cost to have someone else perform his or her duties.
b. The reporting requirements for volunteer activity are outlined in 20 C.F.R. §10.526:
An employee who is receiving compensation for partial or total disability is periodically required to report volunteer activity or any other kind of activity which shows that the employee is no longer totally disabled for work. The fact that the employee did not receive any salary for this work is not a basis for failing to report this activity; instead the employee must report the cost if any to have someone else do the work or activity
Claimants are required to report and describe volunteer activity even if no remuneration is received, as reporting these activities and employment is material to a determination of continuing disability. Even if there is no immediate change in monetary compensation, OWCP must evaluate this information in the context of further case action. A claimant who is regularly performing his or her second job or engaged in regular volunteer activity may be sent for a second opinion evaluation or evaluated for vocational rehabilitation.
c. A claimant's failure to report investments does not constitute grounds for forfeiture. Passive investments such as mutual funds, stock ownership, or strictly a financial interest in a business unaccompanied by any active involvement or employment activity in that business is not activity that is required to be reported. See generally Vernon Booth 7 ECAB 209, 211 (1954); Anthony V. Knox, 50 ECAB 402, fn 11 (1999) (While appellant's unreported employment activity with respect to his rental property business subjected him to FECA's forfeiture provisions, the record did not establish he engaged in farm work on the farm he owned.) Farm ownership alone is not subject to the forfeiture provisions of FECA.
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7. Definition of Knowingly. The term "knowingly" is defined in 20 C.F.R. §10.5(n) as "with knowledge, consciously, willfully or intentionally." For an omission or understatement to be considered "knowingly" made, the file must contain positive evidence, such as a statement from the claimant that he or she had earnings, or a statement indicating earnings less than the amount actually earned according to other sources. To determine whether the claimant reasonably should have known that the earnings or employment activity should have been reported to the OWCP, the circumstances of the case should be carefully evaluated with respect to the claimant's age, education level, and familiarity with the reporting requirements, as well as the nature of the employment/earnings involved and any other relevant factors.
However, it should be noted that the instructions for filling out the Form EN-1032 are quite specific and require the claimant to report all employment activities, including volunteer work. The ECAB has repeatedly held that the Form EN-1032, as signed and dated by an employee receiving compensation, may constitute substantial evidence as to what the employee "knew" with regard to the requirement to report his or her employment activities to OWCP.
See the following ECAB cases for more guidance in this area:
A.A., Docket No. 07-877 (issued October 17, 2007) (employee knowingly failed to report her employment earnings on the CA-1032 she submitted);
S.R., Docket No. 07-618 (issued July 10, 2007) (employee knowingly failed to report work activities and earnings from an eBay account);
David P. Bjornson, Docket No. 04-1339 (issued March 21, 2005) ("...appellant's signing of certification clauses on the CA-1032 form provides persuasive evidence that he "knowingly" understated his earnings and employment information");
John A. Graham, Docket No. 04-759 (issued September 30, 2004) (failure to fully report his earnings to OWCP was found to be a "knowing omission" by appellant);
Daniel J. Baladez, Docket No. 01-439 (issued June 4, 2003) (employee knowingly failed to report his earnings from his "hobby");
John Lombardo, Docket No. 01-814 (issued July 1, 2002) (employee knowingly failed to provided information on his intermittent work activities);
Francisco Serrano, 40 ECAB 824 (1989) (the employee knowingly failed to provide information on his employment in his brother's company);
Monroe E. Hartzog, 40 ECAB 322 (1988) (the employee knowingly failed to report his employment in a family business selling mobile homes);
Harry S. Renkert, 39 ECAB 1142 (1988) (the employee knowingly failed to report his employment as a fishing guide);
Jesse Meredith, Jr., 38 ECAB 575 (1987) (the employee knowingly failed to report his earnings as a substitute teacher); and
Cheryl Thomas, Docket No. 03-1848, (Issued July 6, 2004), 55 ECAB 610 (Claimant's underreporting of employment constituted grounds for forfeiture)
If it is determined that the omission or failure was not knowingly made, the claimant's compensation entitlement during the period of the employment should be determined on the basis of his or her actual earnings. If the claimant simply fails to submit Form EN-1032, compensation should be suspended. See FECA PM 2-0812.
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8. Penalty Decision. 20 C.F.R. §10.529 provides that, "If an employee knowingly omits or understates any earnings or work activity in making a report, he or she shall forfeit the right to compensation with respect to any period for which the report was required. A false or evasive statement, omission, concealment, or misrepresentation with respect to employment activity or earnings in a report may also subject an employee to criminal prosecution."
a. Signature Authority. Only a Senior Claims Examiner (or higher authority) may issue a forfeiture decision.
b. Advising the Claimant. When the evidence shows that the claimant had earnings and knowingly did not report them on Form EN-1032, the Senior Claims Examiner should prepare a formal decision declaring the compensation forfeit. The forfeiture decision must clearly address the period of activity and how the determination was made that the claimant knowingly made an omission or understatement. Note also that when composing the decision, the Senior Claims Examiner should not rely solely on investigative summaries; rather, the Senior Claims Examiner should cite specific evidence, e.g. witness statements, documentation of earnings, etc.
c. Period of Forfeiture.
(1) If Form CA-1032 was issued, the forfeiture applies to the entire period covered by the form (15 months from the date of the signature). The entire period is forfeit, even if the claimant had unreported earnings for only part of the period.
(2) If Form CA-1032 was not issued for the period during which the claimant worked or had earnings while receiving compensation, the period of forfeiture is limited to the period that the claimant actually worked and did not report earnings. See Curtis D. Humphrey, 47 ECAB 553 (1996).
d. Discussion of Knowingly. The forfeiture decision should specifically discuss the evidence which supports that the claimant knowingly failed to report earnings. This evidence could include documents which inform the claimant of the need to report earnings and the possible consequences of failing to do so, such as the advisory letter issued when the claimant is placed on the periodic compensation roll (i.e. the CA-1049), or the explicit language contained on signed EN-1032 forms.
e. Resulting Overpayment Decision. A preliminary overpayment decision should be released with the forfeiture decision, finding the claimant to be with fault in creating the overpayment, since the claimant failed to furnish information which he or she should have known to be material. After due process has been provided and a final decision has been issued by the District Office or by the Branch of Hearings and Review, OWCP should recover the overpayment in the same manner as any other overpayment.
f. Other Entitlement Decisions. If injury-related disability does not continue, a notice of proposed termination should be issued simultaneously with the forfeiture decision. If work-related disability is established, the claimant's wage-earning capacity should be determined based on actual earnings or a constructed loss of wage-earning capacity (LWEC) rating, and benefits should be reduced accordingly.
Generally, a forfeiture decision should not be released until the entitlement issue is fully resolved; however, based on the circumstances in a particular case, proceeding with forfeiture prior to completely resolving entitlement may be appropriate.
g. Schedule Awards. A claimant who forfeits compensation for failing to report earnings or employment also forfeits entitlement to a schedule award thereafter. Garry Don Young, 45 ECAB 621 (1994) (Section 8106(b)(2) of the Act contemplates a schedule award as compensation, for purposes of forfeiture, as monetary compensation payable to an employee under section 8107 is a payment made from the Employees' Compensation Fund).
h. Later Reports of Earnings. Any compensation used to recover an established overpayment is itself subject to forfeiture should the claimant again knowingly fail to report earnings/activity on Form EN-1032.
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9. Form CA-7, Claim for Compensation. Forfeiture may also be declared based on an omission or misrepresentation of earnings/work activity on Form CA-7. See C.A., Docket No. 08-1203 (issued April 2, 2009) (ECAB affirmed OWCP's determination that appellant forfeited compensation as appellant "knowingly" omitted her earnings under section 8106(b)(2) of the Act by failing to report her employment activities and earnings on the applicable CA-7 forms.)
a. Reporting Requirements. The CA-7 form asks the claimant to report all earnings from employment (outside of his/her federal job) for the period claimed on the CA-7. The claimant is specifically advised to include all employment for which salary, wages, sales commissions, etc. are received, including any self employment, and that failure to report such may result in forfeiture of compensation or criminal prosecution. By signing the form, the claimant is certifying the accuracy and truthfulness of the information contained on the form.
b. A forfeiture based on Form CA-7 will cover only the period claimed on the CA-7.
c. Any CA-7 form used for forfeiture must be reviewed carefully, as the ECAB has ruled that the language in some earlier versions of the form (prior to June 2005) is not sufficient to reasonably put the claimant on notice that all earnings need to be reported, no matter the source. If the form in question is prior to June 2005, you should not pursue forfeiture and instead should pursue only the overpayment, if appropriate.
Chapter 2-1800, Housing and Vehicle Modifications |
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Exhibit 1 - Sample Agreement-OWCP Vehicle Purchase or Modification |
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1. Purpose and Scope. This chapter furnishes guidelines and procedures for considering requests for housing and vehicle modifications. Such medical rehabilitation services help the claimant to maintain or increase independence and quality of life, and, consequently, may reduce the need for future services and their associated costs. Modifications may in some circumstances also reduce or delay the need for residential care and nursing services.
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2. Authority. Housing and vehicle modifications come under the authority of 5 U.S.C. 8103(a) which provides for services, appliances and supplies prescribed or recommended by a qualified physician, which the Secretary considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of monthly compensation. See, D.T., Docket No. 05-1012 (issued August 23, 2006) (ECAB held that OWCP has broad administrative discretion in choosing the means to achieve the goals of section 8103 of the FECA. As the only limitation on the OWCP's authority is reasonableness, abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions which are contrary to both logic and probable deductions from known facts).
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3. Eligibility. To be eligible for housing or vehicle modifications, the claimant must be severely restricted in terms of mobility, functionality and independence in normal living functions, on a permanent basis, due to the work-related injury. Examples are impairments that require the use of a prosthesis, wheelchair, motorized scooter, leg braces, crutches, cane, or other self-help device. Such medical conditions include quadriplegia, paraplegia, amputation, total loss of use of limbs, blindness and profound deafness bilaterally.
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4. Medical Development. When a request is received for housing or vehicle modifications, the Claims Examiner (CE) should take initial action within five working days of receipt. The CE should ensure that the original acceptance of the case was proper and that the disability for which the benefit is claimed is related to the accepted injury.
Before considering the technicalities of housing and vehicle modification proposals (paragraphs 5, 6 and 7 below), a determination must be made on the medical necessity of the requested modification. See William D. Farrior, 54 ECAB 566 (2003) (ECAB held that OWCP properly exercised its discretionary authority in denying appellant's request for a new vehicle, as there was insufficient rationalized medical evidence addressing appellant's physical restrictions due to his accepted knee conditions or the need for a motor vehicle modification or new vehicle purchase.)
There are several aspects to consider when reviewing the evidence of record:
(1) Does the level of impairment rise to the level delineated in the eligibility section above?
(2) Does the medical evidence support that the claimant has restrictions or physical limitations which necessitate the modification?
(3) Are these restrictions caused by the accepted work-related condition?
(4) Does the physician provide detailed findings and rationale for the opinion that the claimant's work injury has caused restrictions which necessitate the requested modification? This should come from a physician who is a recognized authority in the appropriate medical specialty.
Note that the modification should result from a restriction. For example, the purchase of a wheelchair or scooter for a claimant does not necessarily mandate that the concomitant modification to a vehicle be made. If the restriction leading to the wheelchair/scooter also prevents the claimant from driving without it, then the vehicle modification would be compensable. On the other hand, if the scooter was provided because the claimant cannot walk long distances but is able to drive an unmodified vehicle, then the OWCP is not responsible for vehicle modifications. In this instance, there is no injury-related restriction that requires the claimant to drive a modified vehicle. (See, M.B., Docket No. 06-701 (issued December 4, 2006) (ECAB held that appellant's physician did not explain why appellant's employment-related accepted conditions required medical treatment which could only be accommodated by purchase of a van.)
If the evidence of record fails to establish medical necessity in consideration of the above criteria, the claimant should be provided with 30 days to submit the needed medical documentation. The questions to the physician should be specific in regard to the injury related restriction which necessitates the requested modification.
Requests for modification are not routinely sent to the District Medical Advisor (DMA). However, if there is a complicated medical issue that requires DMA review, the medical evidence should be forwarded to the DMA for an opinion on the necessity and work-relatedness of the requested modification(s).
If medical eligibility is established, then the CE should proceed with the technical development of the proposed modification in conjunction with the criteria outlined in paragraphs 5, 6 and 7 by requesting a detailed proposal for the requested modifications. These proposals will address the technical, financial and practical elements of the requested modifications. Under certain circumstances, OWCP may assist in developing such proposals by referring the case to a Rehabilitation Specialist (RS), who will assign a Rehabilitation Counselor (RC) to assist the claimant in developing a detailed proposal for the requested modifications. The case may also be referred to a Field Nurse (FN) in some instances to assist with this process.
If the proposed modification is not supported, a formal decision is required as outlined in paragraph 8.
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5. Vehicle Modifications.
a. General Criteria. No vehicle modification should be undertaken without a signed agreement that specifies the nature of the modification and the claimant's responsibilities and obligations under the agreement.
(1) Modifications to a vehicle must be established as necessary and desirable for increased mobility or independence by a recommendation of a physiatrist or other medical specialist appropriate to the type of injury sustained. The medical evidence must establish that the requested
modifications are needed because of restrictions caused by the accepted condition(s). See paragraph 4.
(2) Modifications of the present vehicle must be explored before considering a new purchase.
(3) Modifications must be consistent with the claimant's pre-injury standard of living and should approximate that standard insofar as practical. If accessories and equipment are needed for the claimant's present vehicle, OWCP will modify it if it is practical to do so, as determined by the type of vehicle, its age and condition, and the type of equipment needed.
(4) If it is established that the claimant cannot drive his or her present car due to the inability to place a wheelchair in it without assistance, or if it is not practical to modify the present vehicle, OWCP will pay for a suitable car or van (if necessary), taking credit for the trade-in value of the vehicle with the greatest current fair market value owned by the claimant; however, OWCP will not be named on the title for the vehicle.
(a) If the claimant purchases a used car, OWCP will pay the depreciated price of a base-line, otherwise comparable, used car or van of comparable age and condition, with equipment required for the accepted disability. The claimant is responsible for paying the difference between the new or used vehicle allowed by OWCP and the car or van actually purchased and additionally equipped as the claimant desires.
(b) If the claimant purchases a new car or van, OWCP will pay the discounted price of a base-line vehicle of suitable size. The base line vehicle is the most cost effective model upon which the necessary modifications can safely be made. OWCP will also pay the discounted price for additional options required for the effects of the injury and any necessary after-market add-ons, such as hand controls. Wherever possible, optional equipment should be factory-installed.
(5) If a car or van must be purchased by OWCP, it will be the most cost-effective modifiable model with the optional equipment required for the effects of the injury. Hand controls or other special devices will be added to it. If the claimant desires a model that is more costly because of nonessential factors, or desires accessories not required for the injury, he or she must pay the difference in price. OWCP will pay only the discounted price for the suitably sized base-line vehicle with the necessary options and modifications. The claimant will pay any difference resulting from the selection of a more expensive model and/or additional accessories not necessitated by the injury.
(6) Modifications and the additional costs of a new vehicle (when warranted) over the value of the present vehicle will be paid for by OWCP. When a new or used vehicle is purchased, the amount paid by OWCP will be reduced by the trade-in value of the vehicle owned by the claimant with the greatest current fair market value.
(7) Vehicle modifications should be no more expensive than necessary to accomplish the required purpose. Special hand and foot controls and any items which need not be built in should be removable where feasible for transfer to other vehicles.
(8) Vehicle modifications may include what are normally considered comfort or convenience options, if documented by the medical specialist to be necessary for the effects of the compensable disability. In specific cases, it would be appropriate to make payment for such equipment as air conditioning, power brakes, power steering, automatic transmission, power door locks, power windows, rear defogger, or six-way power seat.
(9) Equipment furnished for a vehicle by OWCP should be maintained and repaired at OWCP expense and may be replaced after normal wear and tear. Equipment required for the injury will be repaired and maintained at OWCP expense. Other parts of the vehicle will be repaired, maintained and replaced at the owner's expense even if OWCP paid for the vehicle. Replacement equipment for the present vehicle or similar equipment will be provided on a replacement vehicle if the claimant can establish that the vehicle should be replaced. OWCP may only consider the purchase of a subsequent vehicle when the estimated cost of reasonable mechanical repairs on the current vehicle exceeds its lowest current Blue Book value.
(10) The claimant is required to provide proof of adequate insurance and proper registration of the vehicle in the state of residency. The costs of insurance and registration are the responsibility of the claimant. Claimants are required to carry fire, theft, comprehensive and collision insurance on vehicles paid for in whole or in part by OWCP, but need not maintain collision insurance if the equipment furnished is worth under $200.
(11) The Government is entitled to reimbursement for the value of the modifications when relinquished or no longer needed by the claimant, if the value of the modifications exceeds $10,000 at that time. Reimbursement is due to the Government only in situations where the claimant has had use of the vehicle or vehicle modifications for less than ten years. The value of a vehicle purchased for a claimant, or of automotive accessories such as power steering, automatic transmission and power door locks, will be determined by the lowest current Blue Book figure when the vehicle is sold, traded, or no longer needed by the claimant.
At the time the vehicle or automotive accessory is sold, traded, or otherwise disposed of, the current value of the item is reduced by 10 percent for each year used by the claimant in order to obtain the figure for reimbursement. For example, where the value of the modified vehicle is $10,000 at the time of disposal and the claimant has used it for six years, reimbursement to the Government should be $4,000. The CE should multiply 10 percent by the number of years used (.10 X 6=.60), and multiply the result by the current value of the modified vehicle (.60 X $10,000=$6,000), and subtract the result from the current value ($10,000-$6,000=$4,000) to obtain the reimbursement amount. If the current value is less than $10,000, the above formula will not be applied and the claimant will not be required to reimburse OWCP.
(12) The claimant (and authorized representative if applicable) should be notified of these reimbursement requirements and should sign an acknowledgment of these reimbursement responsibilities. See Exhibit 1.
b. Technical Development.
If medical eligibility has been satisfied, the claimant should be advised of the criteria mentioned in this section. Specifically, the claimant should be notified from the outset that an existing vehicle will be modified whenever feasible, but that any new or used vehicle purchased must be at the discounted price of the most cost-effective base-line vehicle of suitable size, taking credit for the trade-in value of the claimant's present vehicle. If the claimant owns more than one vehicle, the vehicle with the greatest current fair market value will be used to calculate trade-in value. The additional expense of a higher priced vehicle or personal preference options will normally be the claimant's obligation.
When possible, the claimant should submit at least three estimates. An OWCP RC may assist as needed. If it is not possible to obtain 3 bids, the reason should be documented for the record.
Proposals should include the following information:
(1) An itemization of all vehicle modifications proposed. Where substantial modifications are required, the detailed changes should be recommended by a medical rehabilitation professional familiar with the needs of the disabled. When the cost for modifications exceeds $1,000, the professional proposing the modifications must ensure that his or her report justifies the need for and adequacy of the proposed modifications.
(2) Vehicle modification proposals must include the year, make, model and body style of the present vehicle, the number of miles it has been driven, and a description of its general mechanical condition, including any repairs currently needed or anticipated.
(3) If the evidence supports that the claimant's current vehicle cannot be modified and a new vehicle must be purchased, then additional information is needed. Estimates should be provided for the most cost-effective model that can be modified. If the base-line model available comes with extras (like a CD player), then these need not be deducted from the estimate. Any additional options which are not included in the baseline model and not necessitated by the work injury (e.g., a sunroof) are the financial responsibility of the claimant and should be deducted from the estimate.
(4) No fee will be paid for attorneys or similar representatives engaged by the claimant to assist with a proposal. Approved representative's fees remain the claimant's obligation, as discussed in FECA PM 2-1200.
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6. Housing Modifications for Home Owners.
a. General Criteria. No housing modification should be undertaken without a signed agreement that specifies the nature of the modification and the claimant's responsibilities and obligations under the agreement.
(1) Housing modifications must be recommended by a physiatrist or other medical specialist appropriate to the accepted employment condition as necessary and desirable for increased mobility or independence. Before proceeding with a housing modification, the medical recommendation must be current and supported by adequate medical rationale. Rehabilitation services should then be utilized in conjunction with the medical recommendations in order to assist with an on-site visit by a RC or other medical rehabilitation professional. The purpose of the on-site visit will be to provide a report of general requirements that will be necessary to accomplish the medically necessary housing modifications. In addition, the RC or other medical rehabilitation professional will assist in locating architects to draw up plans for modifications when needed, and contractors for building and installing the modifications.
(2) Modifications to a house must be consistent with the claimant's pre-injury standard of living and should approximate that standard insofar as practical. The purpose of the FECA is not to provide an enrichment program in proportion with the severity of the injury sustained. To do so would extend the program beyond the intent and scope of the FECA which is to provide an adequate substitute for an employee's loss of earning ability to provide for his or her living needs. For example: If a claimant must purchase or build a new home because the current residence would not be structurally sound to modify, the new residence must be comparable in size (i.e. square feet of living area) and quality to the currently owned home. Or, if new doors and special door knobs must be installed in the claimant's residence, the quality of the hardware and finish of the doors, the hardware itself, and any molding should be comparable to those being replaced. See Janice Kirby, 47 ECAB 220 (1995) (ECAB held that OWCP did not abuse its discretion to restrict benefits under section 8103 to the new construction of those items necessary to accommodate appellant's injury-related condition. In this case, appellant's parents acknowledge that the construction of the new home intended to accommodate appellant was based on personal and financial considerations and not on the structural unsoundness of appellant's existing home.)
(3) In analyzing a housing modification proposal, it is OWCP's policy to fully explore modifications to a present house before consideration of a purchase or building of a new home. If the claimant elects to purchase a new home or build a new structure, for any reason other than that it would be structurally unsound to attempt to modify the present house, it must be made clear that the OWCP is responsible only for the modifications and relevant plans for the new house which are necessitated by the work injury. In such a situation, OWCP is not responsible for the cost of the new house. The only situations which warrant that the OWCP be involved with helping to purchase or build a new home is where it would be impossible to make the necessary modifications to the present home or that such modifications would cause structural damage to the house.
(a) OWCP will not find that the purchase of or building of a new home is warranted solely on the basis that modifying the present home is too costly. As long as the needed modifications can be achieved without structural damage to the property, OWCP will cover the cost. Also, it would not be considered sufficient reason for the OWCP to assist in the purchase or construction of a new house if the claimant finds that it would be aesthetically undesirable to make an addition to his or her present home. In addition, a claimant's concern that modifications will negatively affect the home's property value is insufficient to warrant purchasing or building a new home for modification rather than modifying the existing structure.
(b) The claimant is required to establish with written certification from at least two professional sources that his or her present home is not structurally modifiable. Such certification from an architect or a licensed building contractor must include a full explanation of why the present home is not structurally modifiable. The OWCP RC may also assist with obtaining this information.
(c) If it is accepted that the present home cannot be structurally modified, other existing home purchase options must be explored and precluded prior to considering new construction. New construction will generally add more delays, time and money, as well as a degree of complexity, and therefore should only be considered if no other option exists. Justifications for construction of a new house must be related to the work injury and not on the basis of personal preference.
(d) Where the present home cannot be modified without structural damage, OWCP will be responsible for the difference between the cost of the new house and that of the existing house. If the claimant purchases a house that represents an increase in his or her standard of living, due to personal preference, the cost of the upgrade will be the claimant's responsibility. For example: If the claimant owns a house worth $100,000 with a mortgage at the time of sale of that house of $85,000, his or her position at the time of purchasing or building the new home should be that he or she owes $85,000 on the new mortgage. OWCP does not purchase the house but will make up the difference up to the worth of the present residence, i.e., $100,000. In such a case, the responsibility of OWCP would also include housing modifications and modifications to the architectural plans. See, e.g., Wayne G. Rogers, 54 ECAB 482 (2003). However, OWCP is providing purchase assistance and is not purchasing the house. Therefore, neither OWCP nor any Government agency will be named on the deed to the house in such an arrangement.
(4) If the claimant lived in his or her own house at the time of injury and makes the decision to buy or build a new home for reasons other than those described above, OWCP will pay only the cost of modifying a suitable house. The OWCP will not pay moving expenses. If the claimant decides on his or her own to purchase or build a new house, the OWCP will only pay any extra expenses in altering the plans and for medically necessitated modifications to the new house.
(5) Modifications will be consistent with the current home and no more expensive than necessary to accomplish the required purpose. For example, in remodeling a bathroom, it may be feasible to remove and reinstall an existing sink to wheelchair height, rather than discard it and buy a new sink. If the existing sink cannot be used, purchase of the most cost-effective comparable sink that will fulfill the purpose of providing accessibility will be approved. Another example involves access issues related to ramps, lifts and elevators. When determining the most appropriate mode of access to or within a home, the most cost-effective modification should be selected. Each item for modification should be assessed in terms of safety, accessibility and cost-effectiveness, as well as meeting the injured worker's pre-injury standard of living, as is practical. The specification of a particular product brand should be avoided unless it is established that a single name brand is the most cost-effective means of meeting the requirement for the modification.
(6) The cost-effectiveness of modifications to meet a temporary need, when the physician anticipates a prolonged recovery, should be considered against long-range tangible and intangible benefits, such as facilitating recovery, reducing the length of hospitalization or confinement in other care facilities, or reducing the need for an attendant.
(7) Modifications may include what are normally considered to be comfort or convenience accessories, if needed for the effects of the compensable injury. In specific cases, special heating, air conditioning and air filtration devices may be necessary based on the nature of the accepted condition. For example, such items might be required for an individual with a respiratory or cardiac ailment, and the physician recommending the accessories would be responsible to explain such needs. In addition, if a generator is being requested, the CE should consider if there is equipment that needs to be backed up by a generator in the event of a temporary power outage in order to preserve health or life.
(8) Once a Housing Modification Plan is approved, any changes to the OWCP funded modifications must be submitted by the contractor. The changes must be approved by OWCP via written change orders prior to the change being initiated, unless the change is related to items that the claimant will be responsible for paying.
(9) Once the housing modification is approved, the contractor may find more extensive repairs are needed in order to pass inspection. For example, after tearing down a wall more extensive work is needed due to problems hidden by the wall. While the repairs may not be specifically related to the disability, the contractor cannot proceed without correcting the new problem. These additional repairs should be approved if necessary to complete the approved modifications.
(10) Contractors are required to provide proof of license and insurance. Prior to authorizing a plan, the local licensing board or other similar entity should be contacted by the RC to insure that there are no significant infractions reported against the contractor, such as poor work or fraudulent activity.
(11) The RC must verify local permit requirements. Permits are to be obtained in localities where they are required. If no permit is required and completed work is questionable, OWCP can pay for a 3rd party inspection such as a city or county building inspector.
(12) Equipment required due to the work injury and furnished by OWCP for the present house or new house will be maintained, repaired and replaced as needed after normal wear and tear at OWCP expense.
(13) The claimant is required to provide proof of adequate insurance. Claimants must carry home owner's insurance that reflects the present value of their house, unless the modifications were furnished at a cost under $1,000.
(14) The Government is entitled to reimbursement for the value of any housing modifications when relinquished or no longer needed by the claimant if the value at that time exceeds $10,000 after applying a sliding scale, which is explained below. When disposing of modified property, the sliding scale must be applied to any enhanced value over $10,000, and that amount must be returned to the Government. See Minne B. Lewis, 53 ECAB 606 (2002) (ECAB upheld OWCP's repayment provisions as they "prevent unjust enrichment." ECAB stated that without them a claimant who has received a Government subsidy to purchase property could turn a quick profit by simply selling the property. OWCP procedures requiring reimbursement to the government attempt to return the claimant, after the property is relinquished, to substantially the same position he or she enjoyed previously.)
For example, if an elevator is installed in the claimant's house and the house is later sold, the OWCP should be reimbursed from the proceeds of the sale for the current value of the elevator, if it exceeds $10,000 after applying the sliding scale. The current value may be determined in any reasonable, equitable manner, such as estimates from real estate sources, bank appraisers, or by comparing recent sale prices of similar houses without the special equipment.
A sliding scale is used to determine the remaining enhanced value at the time the house or housing modification is relinquished or no longer needed by the claimant. The amount of reimbursement due to the Government will be reduced gradually. If the claimant leaves the modified home after one year of residence, the amount of reimbursement due the Government would be 90% of the total disbursements made for the purchase and/or housing modifications. After two years of residence in the modified home, the amount of the reimbursement to be sought by OWCP would be 80% of the disbursements. The amount of the reimbursement due the Government would continue to reduce annually, with a reduction to zero after ten years of residency has elapsed.
While some modifications may decrease rather than increase the value of a home, no reimbursement to the claimant can be made for any reduction in the value of the house resulting from modifications which may inconvenience prospective purchasers.
(15) The claimant (and authorized representative if applicable) should be notified of these reimbursement requirements and should sign an acknowledgment of these reimbursement responsibilities. See Exhibit 2.
(16) If a house has been modified, the claimant must notify OWCP before any move which may result in a claim for further housing modifications. A claimant who sells a modified house is liable for modifying any future residence absent a claims-related reason for the move and prior OWCP approval (see paragraph 10 below).
b. Technical Development. If medical eligibility has been satisfied, the claimant should be advised of the criteria mentioned in this section. Specifically, The claimant should be advised that proposed housing modifications should be of a quality and finish level consistent with his or her present residence but not superior to it. (For example, builder grade cabinets will be replaced with similar cabinets, not expensive custom cabinets). Likewise, proposals should mention the type of materials being used rather than concentrating on a specific brand name. The most cost-effective means of accomplishing the modification should be provided in the proposal. The claimant should also be advised that if it is established that it is not structurally feasible to modify the present residence, a move to a comparable residence which
could be properly modified should be considered. While it is the claimant's own decision, OWCP will not pay for modifications that would compromise the structural soundness of the residence.
When possible, the claimant should submit at least three bids in the proposal. Typically, an OWCP RC will assist with this process. If it is not possible to obtain three bids, the reason should be documented for the record. The bids should be commensurate in the level of detail provided and address all needed modifications so that comparisons between them will be accurate. Bids should be submitted by licensed and insured contractors.
Proposals should include the following information:
(1) Three bids which contain an itemization of all modifications proposed. The materials, labor, and associated fees for accomplishing these modifications should be listed and a time frame for completing them provided. Only modifications approved by the OWCP (based on medical evidence) will be paid for by the OWCP. Additional modifications and/or optional material upgrades are the responsibility of the claimant. For ease of comparison, each bid should separate the costs assumed by each party (claimant and OWCP) where necessary.
(2) When the cost for modifications exceeds $5,000, the RC coordinating the modifications must ensure that an on-site review is performed to justify the need for and adequacy of the proposed modifications. Reasonable fees will be paid for the medical rehabilitation professional's visit to the home and detailed recommendations. If necessary, the RC can utilize an accessibility specialist and OWCP will pay a reasonable fee for an on-site analysis. Documentation of the site visit should be included with the proposal.
(3) If construction work is required, a binding estimate of the cost from three reputable contractors is needed. Customarily, no fee will be paid for such bids, since they are normally supplied to prospective purchasers free of charge. Reasonable fees for bids can be considered for extensive home modifications if it can be established that it is the usual practice for the extent and degree of the home modification in the specific locale. Reasonable fees will be paid for preliminary architect's sketches when significant structural changes requiring architectural services are needed. If special accessories or devices are requested, the CE should stipulate that the price given by the vendor includes any necessary installation. The bid selected will be the lowest of any acceptable means of achieving the desired result. The lowest prices will be accepted unless there is sound reason for a higher price, such as increased durability or degree of contractor experience and/or established record of working with accessibility design issues.
(4) No fee will be paid for attorneys or similar representatives engaged by the claimant to assist with a proposal. Approved representative's fees remain the claimant's obligation, as discussed in FECA PM 2-1200.
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7. Housing Modifications for Renters.
a. General Criteria. The status of renter includes claimants who are or were living with parents or other family members at the time the work injury occurred. Modifications to rental property must be approved by the property owner. A signed agreement is required which acknowledges that the modifications are being paid for because the property owner has agreed to house the claimant and further acknowledges the property owner's reimbursement responsibilities to OWCP.
No housing modification should be undertaken without this kind of signed agreement that specifies the nature of the modification and the claimant's, as well as the home owner's or apartment owner's, responsibilities and obligations under the agreement. See Exhibit 3 or 4 depending on whether the claimant is renting or living with a family member.
Many of the criteria outlined in paragraph 6 for home owners apply also to claimants who rent housing. A few specific criteria for renters are below:
(1) In a rental property, all modifications proposed must be recommended by a physiatrist or other medical specialist appropriate to the accepted employment condition, just as in a property owned by the claimant. The proposal must be reviewed by the CE and approved as necessary and desirable for increased mobility or independence.
(2) If the claimant lives in rented premises, a statement from the property owner authorizing the proposed changes should be included in the proposal. This includes a situation in which the claimant is living in a parent's or other relative's home. OWCP should conduct a conference with the landlord to assess the level of commitment to continue renting to the injured worker after the modifications are accomplished. There should be some level of assurance that the landlord will continue to rent the modified property to the injured worker for an extended period of time considering the extent and cost of the modifications.
(3) If the claimant is renting and the owner of the property will not permit necessary modifications, other living arrangements may be subsidized, such as paying moving expenses to other rented quarters as comparable as possible to the present residence. OWCP should also pay any difference in rent. However, a claimant who is renting his or her living quarters should not expect any assistance from OWCP for purchasing or constructing a new house.
(4) Modifications to an apartment must be in keeping with the standard of the decor of the current or pre-injury apartment accoutrements. For example, if the claimant's apartment has two sinks in the master bath and the claimant needs a special sink for wheelchair access, both sinks will be replaced or modified in order to preserve the symmetry of the room. If the tile in the bathrooms or kitchen needs to be replaced in order to accomplish the proposed modification, the new tile should be of a quality equal to that which must be replaced.
On the other hand, just as in a privately-owned residence, cost-effectiveness and practicality are essential criteria to be used when considering proposed modifications. If an existing sink can be reinstalled at another height [see this chapter paragraph 6.a(5)] to achieve the required modification, this is preferable to discarding it and replacing it with a new sink.
(5) Similarly, when a claimant lives in a rented walk-up apartment prior to the injury and can no longer climb stairs, the difference in rent may be paid for the most nearly comparable elevator apartment available. The CE must ensure that the proposed apartment is equivalent to the pre-injury living quarters in terms of living area, amenities and community desirability.
(6) If a renter living in a remote area needs a modification not allowed by the property owner, and there is no rental property available within a reasonable distance, the feasibility of relocation, new construction, or any other viable option should be weighed.
(7) For true rental situations, the claimant is required to provide proof of adequate insurance. Claimants must carry renter's insurance that reflects the present value of the belongings within the residence, unless the modifications were furnished at a cost under $1,000. If the claimant is living with a family member, the home owner should carry the insurance.
b. Technical Development. The technical development of the housing modification will take the same course for renters as for the home owners described in the prior paragraph, with the exception that the landlord or home owner must agree to the modifications.
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8. Adjudication of Proposals.
a. Medical evidence as described in paragraph 4 above is required. A claimant seeking a housing or vehicle modification should be advised to submit the requested documentation needed to establish medical necessity. If the claimant fails to submit the necessary documentation, a formal decision with appeal rights should be issued. This decision should discuss the evidence of record and provide an explanation of why it is insufficient to support the medical necessity. Technical development of a proposal, or review of a submitted proposal, is not necessary if the evidence of record does not establish that the proposed modifications are necessitated by work-related restrictions.
b. If medical necessity is established, then technical development to establish the criteria noted in paragraphs 5, 6 or 7 is warranted. As noted previously, it is often necessary to have an OWCP RC or FN involved in this process. The CE will review the itemized proposal and determine whether the specified modifications are warranted. This would be an appropriate time for a telephone conference between the CE, the claimant, the RS, the RC, the FN and the party performing the modification (as appropriate) to discuss the proposal, particularly if changes to, or clarification of, the proposal are needed before authorization can be given.
c. The CE's recommendations for approving proposals are to be routed to the Senior Claims Examiner (SrCE), regardless of the cost involved. If the proposal is approved, the SrCE should send an approval letter along with a written agreement which details the terms and conditions of the authorization (see Exhibits 1-4).
d. If the recommendations are denied, in whole or in part, a formal decision with appeal rights is to be drafted for the signature of a SrCE or higher. If the recommendations require further development, the case should be returned to the CE with appropriate comments and instructions.
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9. Payment for Modifications.
a. SrCEs are required to review all proposals and may authorize housing and vehicle modifications in amounts up to $50,000. Supervisory Claims Examiners are authorized to approve housing and vehicle modifications in amounts up to $100,000. Housing and vehicle modifications in amounts over $100,000 are to be approved by the Assistant District Director or District Director.
b. Bills including installation work or construction work must be accompanied by the claimant's (or the RC's) statement showing that the work covered by the payment has been accomplished satisfactorily. Construction expenses should be paid promptly as the job progresses, to coincide with "draws" on the claimant's construction contract.
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10. Later Requests for Modification. After a vehicle or house has been modified, the claimant may request modification of a different vehicle or house.
a. Vehicle. It is expected that even a vehicle which is regularly maintained will eventually require replacement. Its value should be determined by the lowest current Blue Book figure when the vehicle is sold, by the actual purchase price, or by the trade-in value, whichever is highest. The amount should be subtracted from the cost of any new vehicle authorized.
b. House. Payment for modification of a subsequent house for both home owners and renters may be authorized under very limited circumstances. Any subsequent move must be undertaken for a reason related to the claim, and detailed rationale should be provided before the move is to occur.
Acceptable reasons include the need to obtain more sophisticated medical care or a medical need to live in a different environment. Reasons not accepted as justification for modification of a different house include personal preference for a different locale or the desire to be closer to family for additional support. If the reason given is deemed acceptable, the CE should document the file to reflect this decision so that any expenditure in modifying the new house can be justified. See e.g. John Yera, Docket No. 00-2476 (issued June 18, 2002) (ECAB held that OWCP was within its guidelines and discretion in denying appellant's request for a modification of a different residence as appellant voluntarily transferred to Virginia in an effort to utilize his specialized skills in the area of Internet crimes. ECAB found that the reasons advanced by appellant for accepting the position in Virginia were neither persuasive nor convincing to justify an approval of a modification to a second home.)
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Exhibit 1 - Sample Agreement-OWCP Vehicle Purchase or Modification
Memorandum of Agreement - Vehicle Modification
This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for the purchase of and/or the modifications to your vehicle. These vehicle modifications are approved based upon limitations caused by your accepted work injury.
The undersigned agree to the following:
1. OWCP will pay for the purchase of the following vehicle and the specific modifications identified below. In purchasing your vehicle, OWCP will take credit for the trade-in value of the vehicle you own with the highest current fair market value.
For new vehicle purchase, list trade-in vehicle, approved new vehicle and all approved modifications.
OR
OWCP will pay for the specific modifications to your existing vehicle as identified below.
For existing vehicle modifications, identify existing vehicle and list all approved modifications.
2. You will provide proof of adequate insurance and proper registration of the vehicle in the state of residency. You are required to carry fire, theft, comprehensive and collision insurance on vehicles paid for in whole or in part by OWCP, unless the equipment furnished is worth under $200. You understand that you are responsible for paying annual taxes, insurance costs, and all registration fees for the vehicle.
3. Equipment required for your injury and furnished for your vehicle by OWCP will be repaired and maintained at OWCP expense. All other parts of the vehicle will be repaired, maintained, and replaced at your expense even if OWCP has paid for the vehicle.
4. You understand that if and when the vehicle, item, or modification is no longer needed, you will be entitled to retain it if the value (or enhanced value) is less than $10,000. If the value of a vehicle, an enhancement to a vehicle, or any other item furnished for your vehicle is greater than $10,000 when relinquished by you, the amount of value above $10,000 must be reimbursed to the Department of Labor in a percentage of the total value based on the period of use. If you have used the vehicle, enhancement, or other item for one year, the amount to be reimbursed to the Department of Labor would be 90% of the value above $10,000. The amount to be reimbursed will be reduced by 10% annually until it reaches zero (0%) after 10 years of your use.
By signing this agreement, all parties indicate an understanding of and agreement with the conditions set forth above regarding the vehicle purchase and/or modifications.
_______________________________________ Date: ___________
Claimant
CLAIMANT NAME
_______________________________________ Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME
Agreement Prepared By:
Name:
Title:
Date:
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Exhibit 2 - Sample Agreement-OWCP Housing Modification for Home Owners
Memorandum of Agreement - Housing Modification
This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for modifications to your property at ADDRESS. These housing modifications are approved based on limitations caused by your accepted work injury.
The undersigned agree to the following:
1. You agree to the renovations described below. OWCP will pay for these modifications, and only these modifications, as described in the attached document from CONTRACTOR NAME.
List all approved modifications here. If necessary, list subcategories such as general construction, plumbing work, etc.
2. You will notify OWCP before any move which may result in a claim for a new house or a claim for modifications on a new house.
3. You agree that you will provide proof of adequate insurance, including home owner's insurance that reflects the value of your house, upon completion of the approved renovations. You will send proof of insurance to OWCP once renovations have been completed.
4. You must notify OWCP if you intend to relinquish your ownership of the house.
5. You understand that the Government is entitled to reimbursement for the value of the home modifications described in this agreement if the property is relinquished or the modifications are no longer needed if the value at that time exceeds $10,000. If the value is greater than $10,000 when relinquished or no longer needed by you, the amount of value above $10,000 must be reimbursed to the Department of Labor in a percentage of the total value based on the period of use. The Government agrees that the value of the home modifications will decrease at the rate of 10 percent of the total per year for every year that you reside at the property. For example: If the home modifications are completed in December of 2009 and you reside in the house until December of 2015, the value of the renovations would have decreased by 60% in that time. The Government at that time would be entitled to reimbursement for 40% of the amount paid for the modifications. If you live in the home and require the modifications for 10 years, the Government is no longer entitled to any reimbursement amount. The government will not seek reimbursement of any amount until you no longer have need for the modifications or the home.
By signing this agreement, all parties indicate an understanding of and agreement with the conditions set forth above regarding the housing modifications to be completed at ADDRESS.
_______________________________________ Date: ___________
Claimant
CLAIMANT NAME
_______________________________________ Date: ___________
Co-owner(s) of the home (if applicable)
CO-OWNER'S NAME
_______________________________________ Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME
Agreement Prepared By:
Name:
Title:
Date:
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Exhibit 3 - Sample Agreement-OWCP Housing Modification for Renters
Memorandum of Agreement - Modification to Rental Property
(Office of Workers' Compensation Programs and Claimant)
This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for the modification of an apartment to be used as your primary residence. The apartment at ADDRESS is a # bedroom, # bath unit with # square feet. The initial length of lease will be # years.
The undersigned agrees to the following:
1. OWCP will pay for modifications to the apartment and building common areas as detailed below, provided that the landlord concurs with the proposed modifications. The modifications to the apartment are as follows:
List all approved modifications here. If necessary, list subcategories such as general construction, plumbing work or common area work (such as handicapped parking spots or ramps not actually inside the rental unit).
2. The claimant agrees to occupy the apartment for the entire period of the lease as his or her residence and to obtain renter's insurance. The claimant will send proof of insurance to OWCP once renovations have been completed.
3. The claimant agrees to reside in the apartment for the length of the lease as noted above and to notify OWCP before any move which may result in a claim for new modifications.
4. The claimant agrees that the apartment may not be subleased to any other party or parties, and that the claimant has obtained signed written concurrence of the building management for these modifications, a copy of which is attached to this agreement.
______________________________________ Date: ___________
Claimant
CLAIMANT NAME
______________________________________ Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME
Agreement Prepared By:
Name:
Title:
Date:
Memorandum of Agreement - Modification to Rental Property
(Office of Workers' Compensation Programs and Landlord)
LANDLORD'S WRITTEN CONCURRENCE TO THE PROPOSED MODIFICATIONS
I, OWNER'S NAME, the owner of ADDRESS consent to the physical modifications planned by CLAIMANT and his/her representative in order for CLAIMANT to live in the apartment. The initial length of the lease will be # years. I understand that these modifications to the apartment and common areas (and only these modifications) will be paid for by the Office of Workers' Compensation Programs as outlined below:
- The items listed here should be the same as those provided on the claimant agreement.
_______________________________________ Date: ___________
Owner's signature
OWNER'S NAME
ADDRESS, WITH APT #
Agreement Prepared By:
Name:
Title:
Date:
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Exhibit 4 - Sample Agreement-OWCP Housing Modification for Family-Owned Homes
Memorandum of Agreement - Housing Modification
(Office of Workers' Compensation Programs and Claimant)
This agreement establishes the parameters under which the Office of Workers' Compensation Programs (OWCP) agrees to pay for the modification of your primary residence, even though you are not the owner of said residence.
It is understood that you do not own the property at ADDRESS, but that you are living with a family member (SPECIFY) and plan to continue living at this residence. These housing modifications are therefore being approved based on the property owner's (OWNER NAME) agreement to provide housing to you on an ongoing and continuous basis and that the modifications in question are needed due to the limitations caused by your accepted work injury.
The undersigned agrees to the following:
1. OWCP will pay for modifications to the residence as detailed below, provided that the property owner concurs with the proposed modifications. The modifications to the residence are as follows:
List all approved modifications here. If necessary, list subcategories such as general construction, plumbing work, etc.
2. The claimant agrees to reside in this residence and to notify OWCP before any move which may result in a claim for new modifications.
_______________________________________ Date: ___________
Claimant
CLAIMANT NAME
_______________________________________ Date: ___________
Claimant's Representative (if applicable)
REPRESENTATIVE'S NAME
Agreement Prepared By:
Name:
Title:
Date:
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